An order was issued by the Court of Appeals for the Fifth District of Texas on October 27, 2022, regarding the appeal of Neal Yanofsky against Buff City Soap Investco, LLC, Michael Sutton, and Guideboat Capital Partners, LLC. The court noted that the timely filing of a notice of appeal is jurisdictional, and an untimely appeal must be dismissed, referencing Texas Rule of Appellate Procedure 42.3(a) and case law. Yanofsky's appeal, filed on September 22, 2022, was found to be untimely as it challenged a judgment dated August 25, 2021. However, the record included an agreed motion for judgment nunc pro tunc, filed on September 20, 2022, which sought to correct the judgment date to August 25, 2022.
The court recognized that if the original date of the judgment was incorrect, it could issue a nunc pro tunc judgment to amend it. The trial court had not set a hearing for the motion, but the appellate court cannot dismiss the appeal based on a trial court error that can be corrected. The court ordered the trial court to resolve the agreed motion by November 14, 2022, and required a supplemental clerk’s record, including the trial court’s order and any nunc pro tunc judgment, to be filed by November 16, 2022. The appellant was warned that the appeal would be dismissed if the trial court did not find the judgment date incorrect. Additionally, the deadline for filing the appellant’s brief was suspended, and the appeal was abated pending compliance with the order. The appeal is set to be reinstated by November 21, 2022. Copies of the order were directed to relevant parties, including the presiding judge of the trial court.
