Donald Dankowich and Carmines LLC v. R-1 Management, LLC ( 2018 )

Opinion issued December 11, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00799-CV
———————————
DONALD DANKOWICH AND CARMINES LLC, Appellants
V.
R-1 MANAGEMENT, LLC, Appellee
On Appeal from the 458th District Court
Fort Bend County, Texas
Trial Court Case No. 17-DCV-238384
MEMORANDUM OPINION
In the underlying proceeding, the trial court signed a final judgment on
January 8, 2018 in favor of appellee R-1 Management, LLC and against appellants,
Donald Dankowich and Carmines LLC. On September 6, 2018, appellants filed a
“notice of appeal of the judgment dated July 10, 2018.”1 The trial court clerk sent a
copy of the notice of appeal to this Court, and the Clerk of this Court docketed the
appeal. See TEX. R. APP. P. 12.1, 25.1(a), (f).
We dismiss the appeal for want of jurisdiction.
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 ninety days after the date the judgment is signed if, within thirty days after the
judgment is signed, 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); TEX. R. CIV. P.
296, 329b(a), (g). The time to file a notice of appeal also may be extended if, within
fifteen days after the deadline to file the notice of appeal, a party properly files a
motion for extension. See TEX. R. APP. P. 10.5(b), 26.3. A motion for extension of
time is necessarily implied when an appellant, acting in good faith, files a notice of
appeal beyond the time allowed by rule 26.1, but within the fifteen-day extension
1
Appellants filed an earlier notice of appeal, and the Clerk of this Court docketed the
appeal in No. 01-18-00321-CV. See TEX. R. APP. P. 12.1. On July 10, 2018, we
dismissed that appeal for nonpayment of required fees and want of prosecution. See
Carmine’s LLC v. R1 Mgm’t, LLC, No. 01-18-00321-CV, 2018 WL 3353293, at *1
(Tex. App.—Houston [1st Dist.] July 10, 2018, pet. filed). To any extent that
appellants’ notice of appeal, filed on September 6, 2018, sought review of this
Court’s judgment, the Clerk of this Court forwarded a copy of the notice of appeal
to the Clerk of the Supreme Court of Texas. See TEX. R. APP. P. 53.1, 53.7.
2
period provided by rule 26.3. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner,
959 S.W.2d 615, 617 (Tex. 1997).
Here, the trial court signed the final judgment on January 8, 2018. The record
filed in this Court does not include a timely filed motion for new trial, motion to
modify the judgment, motion to reinstate, or a request for findings of fact and
conclusions of law. A notice of appeal, therefore, was due by February 7, 2018, or
by February 22, 2018, with a fifteen-day extension. See TEX. R. APP. P. 26.1(b), 26.3.
Appellants’ notice of appeal filed on September 6, 2018 was untimely to perfect an
appeal of the January 8, 2018 final judgment to this Court. Without a timely filed
notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P.
25.1; Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 (Tex.
App.—Houston [1st Dist.] 2012, no pet.).
The Clerk of this Court notified appellants that the appeal was subject to
dismissal for lack of jurisdiction unless they filed a response showing how this Court
has jurisdiction over the appeal. Appellants did not respond.
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.
P. 42.3(a), 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Higley, Lloyd, and Caughey.
3