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Ross v. Spero Holdings, LLC

Court of Appeals of Texas, Fifth District, Dallas

January 24, 2018

JULIAN ROSS, Appellant
v.
SPERO HOLDINGS, LLC A NEVADA LIMITED LIABILITY COMPANY, AND DANIEL JAMES MANAGEMENT, INC., A NEVADA CORPORATION, Appellees

         On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-04473-2016

          Before Justice Lang, Justice Evans, and Justice Schenck

          ORDER

          DAVID EVAN JUSTICE

         We issue this order to address the following pending motions filed by appellant: (1) November 28, 2017 "motion for extension of time to file a motion for enlargement of time to file a notice of appeal nunc pro tunc;" (2) December 27, 2017 "motion to strike and for sanctions;" (3) January 3, 2018 "motion for enlargement of time to file a notice of appeal nunc pro tunc;" and (4) January 5, 2018 "third motion for extension of time to file a motion for rehearing and/or en banc reconsideration." We briefly summarize the procedural history of the appeal and the motions.

          The final judgment in this case was signed March 14, 2017. Appellant filed a timely motion for new trial, but did not file a notice of appeal until August 25, 2017. See Tex. R. App. P. 26.1(a). Appellant filed the appeal as a restricted appeal. See id. 26.1(c), 30. Appellees moved to dismiss the appeal for want of jurisdiction, asserting appellant was precluded from filing a notice of restricted appeal because he had filed a motion for new trial. See id. 30. We agreed and dismissed the appeal November 7, 2017. Ross v. Spero Holdings, LLC, A Nevada L.L.C., No. 05-17-01011-CV, 2017 WL 5167284 (Tex. App.-Dallas Nov. 7, 2017, no pet. h.).

         Following our opinion, on November 16, 2017, appellant filed a "notice of appeal nunc pro tunc." The "notice of appeal nunc pro tunc" recited that it was being filed "to correct excusable error, such that the Notice is deemed to have been filed on May 26, 2017." The "notice of appeal nunc pro tunc" does not explain the "excusable error." However, had the notice of appeal been filed May 26, 2017, it would have been timely and we would not have dismissed the appeal on the stated basis. See Tex. R. App. P. 26.1.

         Two weeks after filing the "notice of appeal nunc pro tunc, " appellant filed the "motion for extension of time to file a motion for enlargement of time to file a notice of appeal nunc pro tunc." He asserted he had computer issues and sought until January 2, 2018 to file a "motion for enlargement of time to file a notice of appeal nunc pro tunc."

         The "motion to strike and for sanctions" is based on exhibits attached to appellees' reply to appellant's response to appellees' motion to dismiss the appeal. The exhibits are not part of the record before the Court and include an affidavit, which appellant asserts contains statements that are untrue. Although appellees' reply was before the Court at the time the Court entered its opinion dismissing the appeal, the exhibits were not considered in the dismissal. See Ross, 2017 WL 5167284 at *1.

          In the "motion for enlargement of time to file a notice of appeal nunc pro tunc" appellant requests the Court allow the notice of appeal "be considered timely filed and/or accepted." Appellant relies on Texas Rule of Appellate Procedure 26.3, which allows, under certain circumstances, for an extension of time to file the notice of appeal, and alternatively on Texas Rule of Appellate Procedure 2, which allows an appellate court, also under certain circumstances, to suspend "a rule's operation in a particular case and order a different procedure." See Tex. R. App. P. 2, 26.3.

         Finally, in his "third motion for extension of time to file a motion for rehearing and/or en banc reconsideration, " appellant notes the trial court has set his motion for new trial for hearing on January 30, 2018. Additionally, he notes he is in the process of retaining counsel. Appellant argues the motion for rehearing and/or en banc reconsideration is dependent on the trial court's ruling on the motion for new trial as well as our determination of the motion to strike and for sanctions. He further argues counsel needs time to familiarize himself with the case.

         We rule as follows.

         We DENY the "motion to strike and for sanctions" and DENY the "third motion for extension of time to file a motion for rehearing and/or en banc reconsideration." As to the remaining two motions, we note the timely filing of a notice of appeal is jurisdictional. 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). When, as here, a motion for new trial has been timely filed, the notice of appeal is due within ninety days from the date the final judgment is signed. See Tex. R. App. P. 26.1(a)(1). That deadline may be extended if the notice of appeal is filed within fifteen days of the deadline and a motion providing a reasonable explanation for the need for the extension is filed. See id. 10.5(b), 26.3.

          The final judgment here was signed March 14, 2017. Because appellant timely filed a motion for new trial, the notice of appeal was due no later than June 12, 2017 or, with an extension motion, no later than June 27, 2017. See id. 26.1(a), 26.3. Appellant, however, did not file a notice of appeal within that timeframe. Although rule of appellate procedure 2 allows an appellate court to suspend a rule in a particular case, it specifically forbids a court from altering the time for perfecting a civil appeal. See id. 2.

         Because we are not authorized to alter the time for perfecting an appeal, we DENY appellant's November 28th extension motion and January 3rd motion for enlargement. We further STRIKE ...


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