Opinion
05-23-00177-CV
10-30-2023
FIDEL LEAL, Appellant v. ABDULLKHLEK BESFKI AND DOSKY, INC. D/B/A THE AUTO PRO SHOP AND SHAWWA INVESTMENTS LLC D/B/A HILINE MOTORS, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-16842
ORDER
BILL PEDERSEN, III JUSTICE
We abated this appeal to allow the trial judge an opportunity to comply with our order directing her to make a written finding as to when appellant received notice of the trial court's October 26, 2022 final judgment. See Tex. R. Civ. P. 306a; Tex.R.App.P. 4.2. The trial judge has made the finding, and the finding has been included in a supplemental clerk's record. Accordingly, we REINSTATE the appeal.
The trial judge found appellant received actual knowledge of the judgment on November 4, 2022. Because the trial judge found that appellant had actual knowledge of the judgment within twenty days of the judgment being signed, appellant's notice of appeal was due by November 28, 2022 or with a timely filed motion for new trial, by January 24, 2023. See Tex. R. App. P. 4.1, 4.2, 26.1. The record reflects appellant filed a motion for new trial on December 15, 2022 and his notice of appeal on February 21, 2023. Neither was timely. See id.; see also Tex. R. Civ. P. 329b(a) (deadline for filing motion for new trial is thirty days after judgment is signed).
Because appellant's notice of appeal was not timely filed, it appears we lack jurisdiction over the appeal. 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). Accordingly, we ORDER appellant to file, no later than November 29, 2023, a supplement to his August 29, 2023 merits brief addressing the Court's concern. Appellees shall file their brief(s) in response to the August 29th and supplemental briefs within thirty days of the filing of appellant's supplemental brief. If any party relies on information not included in the clerk's record, that party shall have filed a supplemental clerk's record containing that information.
The jurisdictional issue is deferred to submission, unless appellant fails to comply with this order, in which case the appeal may be dismissed pre-submission and without further notice. See Tex. R. App. P. 42.3.