Opinion issued October 11, 2012
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00512-CV
____________
GABE REED PRODUCTIONS LLC AND GABE REED, INDIVIDUALLY,
Appellants
V.
STARBASE AVIATION, LLC, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2011-52594
MEMORANDUM OPINION
Appellants Gabe Reed Productions LLC and Gabe Reed, individually,
attempt to appeal from the trial court’s default judgment signed January 9, 2012.
Generally, a notice of appeal is due within thirty days after the judgment is
signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended
to 90 days after the date the judgment is signed if any party timely files a motion for
new trial, motion to modify the judgment, motion to reinstate, or, under certain
circumstances, a request for findings of fact and conclusions of law. See TEX. R.
APP. P. 26.1(a). To be considered timely, a motion for new trial must be filed
within 30 days after the judgment is signed. TEX. R. CIV. P. 329b(a).
The record reflects that the trial court signed the default judgment on January
9, 2012. A motion for new trial, if any, was due by February 8, 2012. The record
shows that appellants filed a motion for new trial on April 5, 2012, which was over
30 days past the deadline. See id.
In the motion for new trial, the appellants asserted that they did not receive
notice of the judgment until March 12, 2012. To modify the periods under the
Texas Rules of Appellate procedure for perfecting an appeal, appellants were
required prove in the trial court, on sworn motion and notice, the date on which the
party or the party’s attorney first either received a notice of the judgment or
acquired actual knowledge of the signing, and to obtain a signed order from the trial
court finding the date when the party or the party’s attorney first received notice or
acquired actual knowledge. See TEX. R. APP. P. 4.2 (trial court must sign written
order finding date of notice); TEX. R. CIV. P. 306a.5 (party must prove date in trial
court on sworn motion and notice); Florance v. State, 352 S.W.3d 867, 873 (Tex.
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App.—Dallas 2011, no pet.) (appellate period was not reset where party failed to
obtain finding from trial court regarding date party acquired actual knowledge of
judgment). The appellants did not obtain a signed order from the trial court finding
the date when the appellants or their attorney first received notice or acquired actual
knowledge of the judgment. Because appellants failed to obtain a signed order
from the trial court, appellants’ deadline for filing the notice of appeal was not
extended. See TEX. R. APP. P. 4.2; TEX. R. CIV. P. 306a.5; Florance, 352 S.W.3d at
873. Appellants’ notice of appeal remained due by February 9, 2012. Appellants
did not file a notice of appeal until May 29, 2012. Appellants’ notice of appeal was
untimely filed. Without a timely filed notice of appeal, this Court lacks jurisdiction
over the appeal. See TEX. R. APP. P. 25.1.
On September 10, 2012, we notified appellants that this appeal was subject to
dismissal for want of jurisdiction unless, by September 20, 2012, they filed a
response showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3(a).
After being notified that this appeal was subject to dismissal, appellants did not
adequately respond.
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.
APP. P. 43.2(f). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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