Gabe Reed Productions LLC, and Gabe Reed Individually v. Starbase Aviation, LLC

Opinion

Opinion issued October 11, 2012

In The Court of Appeals For The First District of Texas

NO. 01-12-00512-CV ____________

GABE REED PRODUCTIONS LLC AND GABE REED, INDIVIDUALLY, Appellants

V.

STARBASE AVIATION, LLC, Appellee

On Appeal from the 165th District Court Harris County, Texas Trial Court Cause No. 2011-52594

MEMORANDUM OPINION

Appellants Gabe Reed Productions LLC and Gabe Reed, individually,

attempt to appeal from the trial court’s default judgment signed January 9, 2012.

Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to 90 days after the date the judgment is signed if any party timely files a motion for

new trial, motion to modify the judgment, motion to reinstate, or, under certain

circumstances, a request for findings of fact and conclusions of law. See TEX. R.

APP. P. 26.1(a). To be considered timely, a motion for new trial must be filed

within 30 days after the judgment is signed. TEX. R. CIV. P. 329b(a).

The record reflects that the trial court signed the default judgment on January

9, 2012. A motion for new trial, if any, was due by February 8, 2012. The record

shows that appellants filed a motion for new trial on April 5, 2012, which was over

30 days past the deadline. See id.

In the motion for new trial, the appellants asserted that they did not receive

notice of the judgment until March 12, 2012. To modify the periods under the

Texas Rules of Appellate procedure for perfecting an appeal, appellants were

required prove in the trial court, on sworn motion and notice, the date on which the

party or the party’s attorney first either received a notice of the judgment or

acquired actual knowledge of the signing, and to obtain a signed order from the trial

court finding the date when the party or the party’s attorney first received notice or

acquired actual knowledge. See TEX. R. APP. P. 4.2 (trial court must sign written

order finding date of notice); TEX. R. CIV. P. 306a.5 (party must prove date in trial

court on sworn motion and notice); Florance v. State, 352 S.W.3d 867, 873 (Tex.

2 App.—Dallas 2011, no pet.) (appellate period was not reset where party failed to

obtain finding from trial court regarding date party acquired actual knowledge of

judgment). The appellants did not obtain a signed order from the trial court finding

the date when the appellants or their attorney first received notice or acquired actual

knowledge of the judgment. Because appellants failed to obtain a signed order

from the trial court, appellants’ deadline for filing the notice of appeal was not

extended. See TEX. R. APP. P. 4.2; TEX. R. CIV. P. 306a.5; Florance, 352 S.W.3d at

873. Appellants’ notice of appeal remained due by February 9, 2012. Appellants

did not file a notice of appeal until May 29, 2012. Appellants’ notice of appeal was

untimely filed. Without a timely filed notice of appeal, this Court lacks jurisdiction

over the appeal. See TEX. R. APP. P. 25.1.

On September 10, 2012, we notified appellants that this appeal was subject to

dismissal for want of jurisdiction unless, by September 20, 2012, they filed a

response showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3(a).

After being notified that this appeal was subject to dismissal, appellants did not

adequately respond.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle. 3