Opinion
No. 11-16-00044-CV
02-18-2016
MIDLAND FUNDING LLC, Appellant v. ROSA GONZALES, Appellee
On Appeal from the 32nd District Court Nolan County, Texas
Trial Court Cause No. 19,523
ORDER
On February 3, 2016, Midland Funding LLC filed a notice of appeal from a judgment entered on November 9, 2015. When the appeal was filed in this court, we noted that the motion for new trial appeared to be untimely, thus causing the notice of appeal to be untimely under TEX. R. APP. P. 26.1. We requested that Midland Funding respond and provide proof that the motion for new trial was timely filed or provide a reasonable explanation, such as a finding by the trial court pursuant to TEX. R. CIV. P. 306a. Midland Funding filed a response indicating that it did not receive notice of the trial court's judgment until December 1, 2015, which was twenty-two days after the entry of such judgment; that Midland Funding timely filed a motion for new trial based upon the December 1 notice date; and that Midland Funding's notice of appeal was filed within ninety days of the date that it received notice of the trial court's judgment. We abate this appeal.
TEX. R. CIV. P. 306a provides that, if within twenty days after a judgment is signed, a party adversely affected by it has neither received the required notice nor acquired actual knowledge of the judgment, the appellate deadlines shall begin to run from the date that such party received notice or acquired actual knowledge of the rendition of judgment. TEX. R. CIV. P. 306a.4; see also TEX. R. APP. P. 4.2(a). In order to establish the application of the rule, the adversely affected party must "prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired 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; see also TEX. R. APP. P. 4.2(b). After hearing the motion, the trial court shall sign a written order indicating the date when the party first received notice or acquired actual knowledge of the signing of the judgment. TEX. R. APP. P. 4.2(c).
Midland Funding has not presented this court with any finding by the trial court reflecting the date that Midland Funding received notice or acquired actual knowledge of the judgment. Therefore, we will abate this appeal to provide Midland Funding an opportunity to file with the trial court the appropriate motion and obtain the requisite findings from that court. The trial court clerk is directed to furnish the trial court's findings to this court on or before February 29, 2016. Upon receipt of the trial court's findings, this appeal will be reinstated.
The appeal is abated. February 18, 2016
PER CURIAM Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.