Gbenga Funmilayo v. Velandera Energy Partners LLC

• Court: Court of Appeals of Texas
• Decided: February 4, 2020
• Docket: 05-19-00914-CV
• Status: Published

Opinion

DISMISS and Opinion Filed February 4, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00914-CV

GBENGA FUNMILAYO, Appellant V. VELANDERA ENERGY PARTNERS LLC, Appellee

On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-03623-2018

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Nowell Opinion by Chief Justice Burns The Court questioned its jurisdiction over this appeal because it appeared the notice of

appeal was untimely. The parties filed letter briefs addressing our concern.

When a party files a timely post-judgment motion extending the appellate timetable, a

notice of appeal is due ninety days after the date the judgment is signed. See TEX. R. APP. P.

26.1(a). A judgment nunc pro tunc entered after a trial court’s plenary jurisdiction has expired

does not extend the time for perfecting an appeal. See Cavalier Corp. v. Store Enterprises,

Inc., 742 S.W.2d 785, 787 (Tex. App.—Dallas 1987, writ denied).

The trial court’s judgment was signed on January 18, 2019 but was mistakenly dated

January 18, 2018. Appellant filed a timely motion to modify the judgment. Accordingly, the

notice of appeal was due on April 18, 2019. See TEX. R. APP. P. 26.1(a). On July 24, 2019, after the trial court’s plenary power had expired, appellee filed a motion for judgment nunc pro tunc to

correct the date the judgment was signed to January 18, 2019 and to add Exhibit A (Award of

Arbitrator) that was referenced in the judgment but inadvertently omitted. The trial court signed

a judgment nunc pro tunc on August 2, 2019 to correct the date the judgment was signed to January

18, 2019 and to include Exhibit A as an attachment.

In his letter brief, appellant asserts this Court has jurisdiction over this appeal for two

reasons. First, he states this appeal is timely because he filed it the same day that the judgment

nunc pro tunc was signed. As noted above, this assertion is incorrect because the judgment nunc

pro tunc was signed after the trial court’s plenary power had expired. See Cavalier Corp., 742

S.W.2d at 787.

Second, appellant asserts the judgment nunc pro tunc “attached as evidence, a version of

an arbitration award, whose contents are different from the contents of the original judgment.” He

states the attachment of the exhibit is the basis for the appeal. With the exception of the date and

the attached exhibit, the contents of the original judgment and the judgment nunc pro tunc are

identical. The attachment of the exhibit to the judgment nunc pro tunc that was referenced but

inadvertently omitted from the original judgment merely corrected a clerical error. See Operation

Rescue-National v. Planned Parenthood of Houston & Southeast Texas, Inc., 937 S.W.2d 60, 87

(Tex. App.—Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex. 1998) (failure

to attach an exhibit to the judgment is a clerical error, not a judicial error). Appellant should have

raised his complaint about any differences between the judgment awarded and the arbitration

award with respect to the original judgment.1

1 A side-by-side comparison of the copy of the arbitration award attached to Plaintiff’s Motion to Confirm Arbitration Award and the copy of the arbitration award attached as Exhibit A to the judgment nunc pro tunc show that they are identical.

–2– Appellant failed to file a timely notice of appeal from the trial court’s January 18, 2019

judgment. Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P.

42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

190914F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

GBENGA FUNMILAYO, Appellant On Appeal from the 401st Judicial District Court, Collin County, Texas No. 05-19-00914-CV V. Trial Court Cause No. 401-03623-2018. Opinion delivered by Chief Justice Burns. VELANDERA ENERGY PARTNERS Justices Molberg and Nowell participating. LLC, Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee VELANDERA ENERGY PARTNERS LLC recover its costs of this appeal from appellant GBENGA FUNMILAYO.

Judgment entered February 4, 2020

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