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Funmilayo v. Aresco, LP

Court of Appeals of Texas, Fifth District, Dallas
Jul 12, 2024
No. 05-24-00737-CV (Tex. App. Jul. 12, 2024)

Opinion

05-24-00737-CV

07-12-2024

GBENGA M. FUNMILAYO, Appellant v. ARESCO, LP AND BRANDON LAXTON, Appellees


On Appeal from the County Court at Law No. 7 Collin County, Texas Trial Court Cause No. 007-02520-2019

Before Justice Molberg, Justice Pedersen, III, and Justice Carlyle

ORDER

CORY L. CARLYLE, JUSTICE.

This case is before the Court a second time, each time from a trial before a special judge named in accordance with the referral procedures in chapter 151 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. Ch. 151. The special judge's verdict at issue in this appeal was signed December 12, 2023. The appeal was filed roughly six months later, on June 14, 2024.

Asserting the appeal should have been filed within thirty days of the date of the special judge's verdict because no motion for new trial or request for findings of fact was filed, appellees have filed a motion to dismiss the appeal as untimely. See Tex. R. App. P. 26.1, 26.1(a) (together providing that notice of appeal is due within thirty days of judgment unless request for findings of fact and conclusions of law, or motion for new trial or to modify judgment is timely filed in which case the notice of appeal is due within ninety days of judgment). In response, appellant asserts (1) the appellate timetable does not begin to run until the referring judge has signed an order "memorializing" the special judge's verdict, and (2) the referring judge did not memorialize the verdict until June 13, 2024, when he signed an order on appellant's motion for an order on the special judge's verdict. The order, which ultimately denied appellant's motion, included the following findings:

1. Final Judgment: A final judgment was entered in favor of plaintiff, Aresco, LP, by [Special] Judge Thomas on December 12, 2023.
2. Failure to Appeal: The defendant, Gbenga Funmilayo, had 30 days from the date of the final judgment to file a notice of appeal. No such notice was filed, and the judgment is final and unappealable.

Appellant contends that the referring judge's finding that the special judge had entered "a final judgment" amounted to "memorializing" the verdict. Thus, he contends, the appeal was timely filed. We agree with appellant.

As we informed the parties in the first appeal, when a case is referred to a special judge, the appellate timetable begins to run from the date the referring court signs an order memorializing the finality of the case. See CIV. PRAC. & REM. CODE § 151.013; Gbenga N. Funmilayo v. Aresco, LP, 05-20-00492-CV, 2021 WL 5578019, *2 n.1 (Tex. App.-Dallas Nov. 30, 2021, no pet.) (mem. op.) (citing Rainier Income Fund I, Ltd. v. Gans, 501 S.W.3d 617, 621 (Tex. App.-Dallas 2016, pet. denied)). No particular form is required, as under section 151.011, the special judge's verdict "stands as a verdict of the referring judge's court." See CIV. PRAC. & REM. CODE § 151.011.

Appellees do not argue, and nothing before us reflects, that the referring court acknowledged by order the finality of the case before June 13. Accordingly, the appeal, having been filed June 14, is timely and appellee's motion to dismiss is DENIED.


Summaries of

Funmilayo v. Aresco, LP

Court of Appeals of Texas, Fifth District, Dallas
Jul 12, 2024
No. 05-24-00737-CV (Tex. App. Jul. 12, 2024)
Case details for

Funmilayo v. Aresco, LP

Case Details

Full title:GBENGA M. FUNMILAYO, Appellant v. ARESCO, LP AND BRANDON LAXTON, Appellees

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 12, 2024

Citations

No. 05-24-00737-CV (Tex. App. Jul. 12, 2024)