Opinion
05-24-00984-CV
11-21-2024
DARTEX HOLDINGS CORPORATION, Appellant v. ROYALTY LENDING II LTD, Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-24-06404
ORDER
KEN MOLBERG JUSTICE
This is an appeal from a foreign default judgment. On September 3, 2024, we granted appellant's motion for an extension of time to file its notice of appeal and deemed the notice of appeal filed on August 19, 2024 timely filed for jurisdictional purposes. Before the Court is appellee's motion to dismiss the appeal for want of jurisdiction, in part, because the notice of appeal was untimely. After considering appellee's motion and appellant's response, we conclude appellant's notice of appeal was untimely.
Appellee filed the foreign judgment in the trial court on April 29, 2024. The filing of the foreign judgment on April 29 acted as the final judgment and triggered the appellate deadline. See Moncrief v. Harvey, 805 S.W.2d 20, 24 (Tex. App.- Dallas 1991, no pet.). Thus, either a motion for new trial or the notice of appeal needed to be filed by May 29. See Tex. R. Civ. P. 329b(a) (motion for new trial due within thirty days after judgment signed); Tex.R.App.P. 26.1 (notice of appeal due within thirty days after judgment is signed); 26.1(a) (notice of appeal due within ninety days if timely motion for new trial or request for findings of fact and conclusions of law filed). Because the motion for new trial was filed on May 30 and the notice of appeal on August 19, the appeal is untimely as a regular appeal.
The notice of appeal, however, is timely for purposes of a restricted appeal. A party who did not participate in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or a notice of appeal, may pursue a restricted appeal. See id. 30. In a restricted appeal, the notice of appeal is due within six months after the judgment is signed. See id. 26.1(c). Because appellant filed the notice of appeal within six months of April 29 and otherwise meets the requirements of a restricted appeal, this appeal shall proceed as a restricted appeal.
Accordingly, we GRANT appellee's motion only to the extent that we VACATE our September 3, 2024 order. We DENY appellant's motion for an extension of time to file the notice of appeal.
Appellant has filed its opening brief. Because error must be apparent on the face of the record in a restricted appeal, see Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004), we STRIKE appellant's brief. We ORDER appellant to file, within thirty days, a brief in compliance with a restricted appeal.
Also before the Court is appellee's November 15, 2024 motion for an extension of time to file its brief. Because we have struck appellant's brief and ordered it to file a new brief, we DENY the extension motion as premature. Appellee's brief will be due within thirty days after appellant files its opening brief.