Opinion
05-21-00746-CV
01-10-2022
KENNETH GORDON, ET AL., Appellants v. TRUCKING RESOURCES, INC., Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-02385-2019
ORDER
CRAIG SMITH JUSTICE
This appeal from the trial court's June 21, 2021 order confirming arbitration award was filed on August 26, 2021 and followed the trial court's denial of appellant's motion to vacate the award. See Tex. R. App. P. 26.1(a) (motion to modify judgment extends time to file notice of appeal to ninety days from date judgment signed). Contending the notice of appeal was untimely filed, appellee has filed a motion to dismiss the appeal for want of jurisdiction. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.- Dallas 2009, no pet.) (op. on reh'g) (timely filing of notice of appeal is jurisdictional). Appellee asserts the notice of appeal should have been filed within thirty days of the order confirming the award because the motion to vacate, though filed within thirty days of the order confirming the award, was untimely and did not extend the time to file the notice of appeal. As authority for the motion, appellee relies principally on Hamm v. Millennium Income Fund, LLC, 178 S.W.3d 256 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).
Hamm, however, did not concern the timeliness of the appeal. Rather, it stemmed in part from the trial court's refusal to consider the appellant's motion to vacate the arbitration award because the motion was filed after the trial court had confirmed the award. See id. at 258. Because section 171.087 of the Texas Arbitration Act implies that grounds for vacating the award must be offered prior to confirmation of the award, the court in Hamm concluded the trial court did not abuse its discretion in refusing to consider the motion to vacate. See id. at 272; Tex. Civ. Prac. & Rem. Code Ann. § 171.087.
Because Hamm does not address the timeliness of the appellant's notice of appeal, its holding is inapplicable. We DENY appellee's motion. See Jatoi v. WM Fin. Servs., Inc., No. 2-06-049-CV, 2006 WL 744246, at *1 (Tex. App.-Fort Worth Mar. 23, 2006, no pet.) (mem. op.) (per curiam) (motion for new trial following order confirming arbitration award extends time to file notice of appeal).
Moreover, the website for the First District Court of Appeals reflects that the notice of appeal in Hamm was filed within the extended time prescribed by Rule of Appellate Procedure 26.1(a). See Tex. R. App. P. 26.1(a). The judgment was signed on September 5, 2003, a motion for new trial was filed on October 3, 2003, and the notice of appeal was filed on November 17, 2003.
Also before the Court is appellants' January 4, 2022 second motion for an extension of time to file their brief on the merits. We GRANT the motion and extend the time to January 24, 2022. We caution appellants that further extension requests will be disfavored.