Opinion
No. 05-16-01508-CV
04-06-2017
JUNGSIK KIM, Appellant v. KICHUL KIM, Appellee
On Appeal from the 192nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-16-08182
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
By letter dated March 8, 2017, the Court questioned its jurisdiction over this appeal because it appeared the notice of appeal was untimely. We instructed the parties to file letter briefs addressing our jurisdictional concern. The parties complied.
Appellants appeal from a final order dismissing a case pursuant to chapter 27 of the civil practice and remedies code. Pursuant to section 27.008(b) "[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 . . ." TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(b) (West 2015). Accelerated appeals include "appeals required by statute to be accelerated or expedited." See TEX. R. APP. P. 28.1(a). In an accelerated appeal, the notice of appeal is due within 20 days after the date the judgment or order is signed. See TEX. R. APP. P. 26.1(b). Without a timely notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b).
In his letter brief, appellant contends that, if the notice of appeal is accelerated, he loses his right to file a motion for new trial and right to findings of fact and conclusions of law. We disagree. Appellant filed both a timely request for findings of fact and conclusions of law and a motion to modify. However, in an accelerated appeal, neither of these filings extends the time to file a notice of appeal. See TEX. R. APP. P. 28.1(b). Appellant also contends, in enacting 27.008, the legislature intended only that courts of appeal "shall give preference to 'Anti-Slapp' appeals rather than making such appeals accelerated." As noted above, the language of the statute does not support appellant's contention. See Roll-N-Rock, Inc. v. Patison, No. 05-15-00164-CV, 2015 WL 5098520, at *1 (Tex. App.—Dallas Aug. 31, 2015, no pet.).
The trial court signed a final order granting appellant's chapter 27 motion to dismiss and awarding attorney's fees on October 25, 2016. Accordingly, the notice of appeal was due on November 14, 2016, twenty days after the date the order was signed. See TEX. R. APP. P. 26.1(b). Appellant filed his notice of appeal on December 23, 2016, thirty-nine days past the deadline.
Because appellant failed to timely file a notice of appeal, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 161508F.P05
JUDGMENT
On Appeal from the 192nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-16-08182.
Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee KICHUL KIM recover his costs of this appeal from appellant JUNGSIK KIM. Judgment entered April 6, 2017.