Eldridge Moak, Administrator of the Estate of Walter Earl Bailey v. Smith County

MARY'S OPINION HEADING NO. 12-01-00209-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ELDRIDGE MOAK, ADMINISTRATOR OF THE ESTATE OF § APPEAL FROM THE 241ST WALTER EARL BAILEY, DECEASED, ET AL., APPELLANTS V. § JUDICIAL DISTRICT COURT OF SMITH COUNTY, ET AL., APPELLEES § SMITH COUNTY, TEXAS PER CURIAM This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate Procedure 42.3(a). The trial court's judgment was signed on April 17, 2001. Under Texas Rule of Appellate Procedure 26.1(a), a notice of appeal must be filed within thirty days after the judgment is signed unless a post-judgment instrument, such as a motion for new trial, is timely filed. Tex. R. App. P. 26.1(a). Where a timely post-judgment instrument has been filed, the notice of appeal must be filed within ninety days after the judgment is signed. Id. Appellant, Eldridge Moak, Administrator of the Estate of Walter Earl Bailey et al. ("Appellant"), filed a motion for new trial on May 18, 2001, thirty-one days after the judgment was signed. Thus, the motion for new trial was not timely and it did not extend the deadline for the filing of the notice of appeal. Appellant's notice of appeal was due, therefore, on May 17, 2001. Appellant filed his notice of appeal on June 30, 2001. On July 26, 2001, this Court notified Appellant pursuant to Tex. R. App. P. 42.3 that his notice of appeal was untimely and that the appeal would be dismissed unless he corrected the defect on or before August 6, 2001. By way of a request for an extension of time, this Court extended the time for responding to our notice to August 17, 2001. On August 18, 2001, (1) Appellant filed a "Jurisdictional Brief." In his brief, Appellant contends that he did not acquire actual notice of the trial court's judgment until May 18, 2001, more than twenty days after the judgment was signed. Further, Appellant argues that because he filed his notice of appeal within ninety days of the trial court's judgment, this Court has jurisdiction over the appeal under Tex. R. App. P. 4.2. (2) The Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure provide an extension of the post-judgment timetables for parties who do not receive timely notice of the trial court's judgment. Tex. R. Civ. P. 306a(4); Tex. R. App. P. 4.2(a)(1). In cases where a party does not obtain notice or actual knowledge of the judgment within twenty days after the judgment is signed, the period for filing a motion for new trial, the trial court's plenary power and the period for filing a notice of appeal run from the date the party or his attorney receives notice or actual knowledge of the trial court's judgment. Id. To invoke this extension, a party must prove in the trial court, on sworn motion and notice, the date on which the party first acquired notice or actual knowledge of the signing and that this date was more than twenty days after the judgment was signed. Tex. R. Civ. P. 306a(5); Tex. R. App. P. 4.2(b). If the party seeking the extension presents a prima facie showing of lack of notice, the trial court is required to hold an evidentiary hearing on the motion. In re Ray, 967 S.W.2d 951, 953 (Tex. App.- Dallas 1998, orig. proceeding). After the hearing, the trial court must sign a written order that finds the date when the party or the party's attorney first either received notice or acquired actual knowledge that the judgment or order was signed. Tex. R. App. P. 4.2(c). The movant has the burden of obtaining the requisite findings. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994) (orig. proceeding); In re Jones, 974 S.W.2d 766, 768 (Tex. App.- San Antonio 1998, orig. proceeding); Metro Dairy Queen Stores v. Dominguez, 883 S.W.2d 322, 324 (Tex. App.- El Paso 1994, no writ). In this case, Appellant has failed to show that he complied with the procedure for extending the post-judgment timetables set for in Tex. R. Civ. P. 306a(5) and Tex. R. App. P. 4.2(b). Compliance with the provisions of Tex. R. Civ. P. 306a(5) and Tex. R. App. P. 4.2(b) is a jurisdictional prerequisite. See Memorial Hospital v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987); Metro Dairy Queen Stores, 883 S.W.2d at 324. Because Appellant has failed to obtain the findings necessary to extend the appellate timetable, we conclude that Appellant's notice of appeal was untimely. Cantu, 878 S.W.2d at 132; Metro Dairy Queen Stores, 883 S.W.2d at 324. Accordingly, the appeal is dismissed for want of jurisdiction. Tex. R. App. P. 42.3(a) & (c). Opinion delivered September 5, 2001. Panel consisted of Davis, C.J., Worthen, J., and Griffith, J. DO NOT PUBLISH 1. Although Appellants's response to our July 26 notice was late, we will consider it in the interest of justice. 2. Appellants appear to misunderstand the operation of Tex. R. Civ. P. 306a(4) and Tex. R. App. P. 4.2(a)(1). As discussed below, if Appellant established that he did not acquire notice or actual knowledge of the judgment within twenty days after the judgment was signed, the timetable for filing a motion for new trial would begin on the date he acquired notice. Further, if he filed a motion for new trial within thirty days of the date he acquired notice, the deadline for filing his notice of appeal would then be extended to ninety days from that date. No matter how the issue is framed, however, by failing to establish the date on which he acquired notice, Appellant has failed to invoke the extended post-judgment timetables.