richard-nunez-carmona-dba-lcs-maginficos-low-rider-car-club-finest-few ( 2007 )

Dismissed and Memorandum Opinion filed September 6, 2007

Dismissed and Memorandum Opinion filed September 6, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00427-CV

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RICHARD NUNEZ CARMONA d/b/a LOS MAGNIFICOS LOW RIDER CAR CLUB, FINEST FEW LOW RIDER CLUB, THE JOEL CARMONA SUPER CUSTOM CAR SHOW, SPACE CITY PROMOTIONS, BUMPER TO BUMPER CAR SHOW, Appellants

V.

AL STAHELY, JR., d/b/a THE LAW OFFICES OF ALL STAHELY, JR., Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2006-43950

M E M O R A N D U M   O P I N I O N

This appeal arises from a petition for a bill of review.  Appellants seek to appeal an order dismissing the case for want of prosecution signed March 2, 2007.  The clerk=s record was filed July 13, 2007. According to the record, appellants filed an untimely motion to reinstate on April 24, 2007, making appellants= notice of appeal filed May 17, 2007, untimely. 

On July 17, 2007, this court notified appellants that the appeal was subject to dismissal for want of jurisdiction unless any party filed a response by July 30, 2007, demonstrating meritorious grounds for maintaining jurisdiction over the appeal.  Appellants filed a response on August 1, 2007.^[1]

In their response, appellants assert that they did not receive timely notice of the dismissal.  Appellants also complain that an incorrect address has been used in sending notices to appellants.^[2]  The Rules of Civil Procedure and the Rules of Appellate Procedure both provide a remedy to enlarge the time to respond if notice is received late.  See Tex. R. Civ. P. 5 (permitting enlargement of deadline on showing of good cause); Tex. R. Civ. P. 306a(4) (setting out procedure to enlarge time when notice is received more than 20 days after judgment); Tex. R. App. P. 4.2 (setting out procedure to begin calculation of time from date of actual knowledge of judgment).  To gain additional time when lack of notice of the trial court=s judgment is alleged, the trial court must sign a written order that finds the date when the party or the party=s attorney first either received notice or acquired actual knowledge that the judgment was signed.  Tex. R. App. P. 4.2(c); In re Bokeloh, 21 S.W.3d 784, 792 (Tex. App.CHouston [14th Dist.] 2000, orig. proceeding).  No such order is contained in our record.  Appellants failed to take the necessary steps to enlarge the time to file their motion to reinstate.  Because the motion to reinstate was filed more than thirty days after the final dismissal order, appellants= notice of appeal was due April 2, 2007.  See Tex. R. App. P. 26.1 (setting deadline for filing notice of appeal in civil cases) and 4.1(a) (extending filing deadline until Monday when the last day is Sunday). Appellants= notice of appeal filed May 17, 2007, is untimely to invoke this court=s jurisdiction.

Appellee filed a reply objecting to appellant=s response as untimely.  In addition, appellee pointed out that appellants= response failed to provide any authority addressing this court=s jurisdiction over the appeal.  On August 23, 2007, appellee also filed a motion requesting a ruling on the jurisdictional issue and asking this court to dismiss the appeal for want of jurisdiction.  We grant the motion. 

The appeal is ordered dismissed for want of jurisdiction.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 6, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]  Appellants submitted an unsigned copy of the response on July 30, 2007.  A signed original response was provided on August 1, 2007, and the response was filed.  See Tex. R. App. P. 9.1.

^[2]  Appellants= other arguments in their response address the turnover order issued in the underlying suit in trial court number 2002-12059.  Appellants have filed a separate notice of appeal from the turnover order, which has been docketed under our appellate case number 14-07-00448-CV, and remains pending before this court.