Kaminetzky, Dov Avni v. Choice Acquisitions No Four Inc. , Et Al--Appeal from 113th District Court of Harris County

Dismissed and Opinion filed February 20, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00761-CV

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DOV AVNI KAMINETZKY, Appellant

V.

CHOICE ACQUISITIONS NO.FOUR, INC., ET AL., Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 99-44482

M E M O R A N D U M O P I N I O N

The notice of appeal asserts that appellant is appealing from two summary judgments allegedly granted in favor of Michael Haikin and Marand Sales Company. The record contains no summary judgment orders in favor of these two parties. The notice of appeal mentions a Nunc Pro Tunc Order signed on March 5, 2002, which is included in the record, but it amends and supersedes two previous orders of dismissal concerning other parties. Appellant=s notice of appeal, filed on June 18, 2002, does not state that appellant is appealing from the March 5, 2002, order.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. See Tex. R. App. P. 26.1 When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days after the date the judgment is signed. See Tex. R. App. P. 26.1(a).

On January 9, 2003, this court issued an order advising appellant that the record did not contain the summary judgment orders specified in the notice of appeal as the orders from which appellant intended to appeal. The order further advised appellant that, if appellant intended to appeal from the March 5, 2002, Nunc Pro Tunc order, the notice of appeal was untimely filed. Because we were unable to determine which order or orders were being appealed, or whether this court had jurisdiction, we directed appellant to file a response on or before February 10, 2003, establishing this court=s jurisdiction or the appeal would be dismissed for lack of jurisdiction. On February 13, 2003, appellant filed a response to this court=s order agreeing that dismissal for lack of jurisdiction is proper.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed February 20, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.