Neal Yanofsky v. Buff City Soap Investco, LLC, Michael Sutton and Guideboat Capital Partners, LLC ( 2022 )

Order entered October 27, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00957-CV
NEAL YANOFSKY, Appellant
V.
BUFF CITY SOAP INVESTCO, LLC, MICHAEL SUTTON AND
GUIDEBOAT CAPITAL PARTNERS, LLC, Appellees
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-09871
ORDER
It is well-settled that the timely filing of a notice of appeal is jurisdictional
and an untimely appeal must be dismissed. 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); see also TEX. R. APP. P. 42.3(a). Under Texas Rule of Appellate Procedure
26, a notice of appeal must generally be filed within thirty days of the date of
judgment or, if certain post-judgment motions are filed, within ninety days of the
date of judgment. See TEX. R. APP. P. 26, 26.1.
The appeal here was filed September 22, 2022 and challenges a judgment
dated August 25, 2021. Based on the date of judgment, the appeal is untimely. The
clerk’s record, however, includes a copy of an agreed motion for judgment nunc
pro tunc filed in the trial court on September 20, 2022, seeking to have the date of
the judgment corrected to August 25, 2022, the date the judgment was allegedly
signed. See In re Taylor, 113 S.W.3d 385, 393 (Tex. App.—Houston [1st Dist.]
2003, no pet.) (“[A] judgment nunc pro tunc may be issued to correct the date an
order was signed if the original date is shown to have been incorrect.”). The record
does not reflect that the motion has been set for hearing, but an appellate court
cannot dismiss an appeal based on a trial court error that is remediable. See TEX.
R. APP. P. 44.4. Accordingly, we ORDER the trial court to determine the agreed
motion no later than November 14, 2022. See id. A supplemental clerk’s record
containing a copy of the trial court’s order, any nunc pro tunc judgment, and the
trial court’s docket sheet, shall be filed no later than November 16, 2022. We
caution appellant that the appeal will be dismissed without further notice should
the trial court not find the date of judgment is incorrect. See TEX. R. APP. P.
42.3(a); Brashear, 302 S.W.3d at 545.
We DIRECT the Clerk of the Court to send a copy of this order to the
Honorable Gena Slaughter, Presiding Judge of the 191st Judicial District Court;
Dallas County District Clerk Felicia Pitre; and, the parties.
We SUSPEND the deadline for the filing of appellant’s brief and ABATE
the appeal to allow the trial court an opportunity to comply with this order. The
appeal will be reinstated no later than November 21, 2022.
/s/ BONNIE LEE GOLDSTEIN
JUSTICE