Opinion
07-23-00261-CV
02-06-2024
STEPHEN PATRICK BLACK, APPELLANT v. AMY CURTIS, APPELLEE
On Appeal from the County Court Lamb County, Texas Trial Court No. CC-3442, Honorable James M. DeLoach, Presiding
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
ORDER
Per Curiam
Appellant, Stephen Patrick Black, proceeding pro se, appeals from the trial court's summary judgment order in favor of Appellee, Amy Curtis. As a preliminary issue, we must resolve whether Black's notice of appeal was timely filed. The trial court signed the order granting summary judgment on April 10, 2023. Black filed a notice of appeal on June 27, 2023. That day, he also filed a sworn motion to extend the notice of appeal deadline pursuant to Rule of Civil Procedure 306a, claiming that he did not received notice of the order from the trial court clerk until June 15, 2023. Black attached a copy of the certified mailing in support of the motion. Following a hearing, the trial court signed an order providing that "Black failed to establish grounds for his 306a motion" and denied the motion. Black now challenges the trial court's ruling.
We review the trial court's Rule 306a decision, concerning the date a party received notice or acquired actual knowledge that the judgment was signed, under the traditional legal and factual sufficiency of the evidence standard of review. See Texaco, Inc. v. Phan, 137 S.W.3d 763, 766-67 (Tex. App.-Houston [1st Dist.] 2004, no pet.). To review a legal sufficiency challenge to the trial court's findings, we must first examine the record for evidence supporting the finding, while ignoring contrary evidence. Hot Shot Messenger Serv., Inc. v. State, 798 S.W.2d 413, 415 (Tex. App.-Austin 1990, writ denied). If there is no evidence to support the finding, we must then examine the entire record to determine if the contrary proposition is established as a matter of law. Id.
The record reflects that Black filed a sworn 306a motion that included a copy of the certified mailing from the county clerk. The mailing envelope is postmarked June 13, 2023. At the 306a hearing, Black submitted his sworn affidavit, stating that he did not receive notice until June 15, 2023, and a copy of the certified mailing for the court's consideration. No controverting evidence was presented by Curtis or any other witness. Thus, there is no record evidence that Black received notice or acquired actual knowledge of the signing of the summary judgment order at any time earlier than June 15, 2023.
We asked both parties to brief the jurisdictional issue. In response, Curtis acknowledges that there was no controverting evidence presented in response to the motion, or at the hearing, and asserts that Black's notice of appeal was timely filed per Rule of Civil Procedure 306a.
For these reasons, we find that the trial court's 306a order was not supported by legally sufficient evidence and that the evidence presented conclusively establishes that Black first received notice of the summary judgment order on June 15, 2023. See TEX. R. CIV. P. 306a; TEX. R. APP. P. 4.2(a). Consequently, Black's notice of appeal filed on June 27, 2023, was timely filed. See TEX. R. APP. P. 26.1(a).
This appeal will now proceed in due course. Black's merits brief is due on or before March 7, 2024.
It is so ordered.