William Richardson v. Twin Peaks Investment LLC, Front Burner Restaurants GP LLC, Brent Stroman, Manuel Chavez, Parnell McNamara and John Doe ( 2019 )

DISMISS; and Opinion Filed August 27, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00125-CV
WILLIAM RICHARDSON, Appellant
V.
BRENT STROMAN, MANUEL CHAVEZ, AND PARNELL MCNAMARA, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. MDL-16-00001
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Osborne
This appeal, from the multi-district litigation pretrial court’s November 2, 2018 orders
dismissing appellant’s claims against Brent Stroman, Manuel Chavez, and Parnell McNamara, was
filed January 29, 2019. Although the notice of appeal asserts appellant was not provided notice of
the hearing that led to the dismissal orders and appellant did not file any post-judgment motions,
the appeal was filed not as a restricted appeal but as a regular appeal.1 See TEX. R. APP. P. 26.1,
30. Because the appeal was filed more than thirty days after the dismissal orders were signed,
appellees have moved to dismiss the appeal. See id. 26.1 (requiring notice of appeal be filed within
1
The notice of appeal also asserts the district clerk, appellees, and the pretrial court failed to give appellant notice of the dismissal orders.
According to a supporting affidavit attached to the notice of appeal, appellant learned of the orders on January 3, 2019. Under Texas Rule of Civil
Procedure 306a(4) and Texas Rule of Appellate Procedure 4.2, if a party affected by a judgment or appealable order does not receive notice of the
judgment or order within twenty days after signing, the period for filing a post-judgment motion and the notice of appeal begins on the date
knowledge was acquired but in no event no later than ninety days after the original judgment or appealed order was signed. See TEX. R. CIV. P.
306a(4); TEX. R. APP. P. 4.2(a). To obtain the benefit of these rules, the affected party must obtain a written order finding the date knowledge was
acquired. See TEX. R. APP. P. 4.2(c). The record here does not include such an order or otherwise reflect such an order was signed.
thirty days of judgment unless request for findings of fact and conclusions of law or motion to
reinstate, to modify, or for new trial is filed).
On July 26, 2019, we informed appellant that, although the appeal was untimely as a regular
appeal, it appeared the appeal could proceed as a restricted appeal. See TEX. R. APP. P. 26.1(c),
30. We directed appellant to file, no later than August 5, 2019, an amended notice of appeal that
complied with the requirements of Texas Rule of Appellate Procedure 25.1(d)(7) concerning
restricted appeals. See id. 25.1(d)(7); see also id. 44.3 (appellate court must not dismiss appeal for
formal defects or irregularities without allowing reasonable time to correct or amend); Grand
Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991) (per curiam)
(appellate court may not dismiss appeal when appellant files wrong instrument without giving
appellant opportunity to amend or file correct instrument). To date, however, the amended notice
of appeal has not been filed.
The timely filing of a notice of appeal is jurisdictional. 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).
Because appellant’s notice of regular appeal was untimely and he has failed to amend his notice
of appeal so the appeal may proceed as a restricted appeal, we grant appellees’ motions and dismiss
the appeal. See id. 42.3(a).
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
190125F.P05
–2–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIAM RICHARDSON, Appellant On Appeal from the 160th Judicial District
Court, Dallas County, Texas
No. 05-19-00125-CV V. Trial Court Cause No. MDL-16-00001.
Opinion delivered by Justice Osborne,
BRENT STROMAN, MANUEL Justices Schenck and Reichek participating.
CHAVEZ, AND PARNELL
MCNAMARA, Appellees
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellees Brent Stroman, Manuel Chavez, and Parnell McNamara
recover their costs, if any, of this appeal from appellant William Richardson.
Judgment entered this 27th day of August, 2019.
–3–