Opinion
05-24-00428-CV
10-01-2024
BOSS EXOTICS, LLC, Appellant v. PAUL CHAPPELL, Appellee
On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-23-04680-A
ORDER
ROBERT D. BURNS, III CHIEF JUSTICE
We REINSTATE this appeal which we previously abated for the trial court to sign an order on appellant's combined motion to reinstate and rule 306a motion. See Tex. R. Civ. P. 165a, 306a(4), (5). A supplemental clerk's record with the trial court's order on the motion has been filed. The trial court found that appellant did not meet its burden to establish the date it or its counsel received actual notice of the dismissal order. Accordingly, the trial court denied the requested relief in appellant's motion.
The trial court signed the appealed dismissal order on December 22, 2023. Appellant filed a motion to reinstate on January 24, 2024. Because the motion to reinstate was not filed within thirty days of the dismissal order and the trial court otherwise denied the rule 306a motion, the notice of appeal was due no later than Monday, January 22, 2024. See Tex. R. App. P. 4.1(a), 26.1. Appellant filed a notice of appeal on April 4, 2024, too late for an ordinary appeal.
However, the notice of appeal is timely for a restricted appeal. See Tex. R. App. P. 30, 26.1(a), (c) (party who did not participate in the hearing that resulted in the order complained of and did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within six months after the order is signed). See Tex. R. App. P. 30, 26.1(a), (c). Because it appears that appellant meets the requirements for a restricted appeal, we construe appellant's notice of appeal as a timely notice of restricted appeal.
Before the Court are (1) appellant's September 16, 2024 motion requesting that we reissue our June 5 order because the trial court failed to make a finding of the date appellant or its counsel first acquired knowledge of the dismissal order or, alternatively, to set a briefing schedule with appellant's brief being due no earlier than November 1, 2024 and (2) appellee's response opposing the motion. Because this appeal is now proceeding as a restricted appeal, we GRANT appellant's motion to the extent that we ORDER appellant to file its opening brief no later than November 1, 2024.