Opinion
NO. 03-17-00701-CV
02-02-2018
Jae H. Yoo and Jung H. Yoo, Appellants v. 4300 Burch, LLC, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-16-005254 , HONORABLE JAN SOIFER, JUDGE PRESIDING MEMORANDUM OPINION
Appellants Jae H. Yoo and Jung H. Yoo seek to appeal a final judgment signed on August 16, 2017. In the trial court, the Yoos filed a request for findings of fact and conclusions of law on September 13, 2017, and filed their notice of appeal on October 23, 2017.
On January 11, 2018, the Clerk of this Court notified the Yoos that it appeared from the trial court clerk's record that their notice of appeal was untimely and that this Court lacked jurisdiction over this appeal. Specifically, the Clerk notified the Yoos that it appeared from the record that their request for findings of fact and conclusions of law was untimely, see Tex. R. Civ. P. 296 (party's request for findings of fact and conclusions of law must be filed within twenty days after judgment is signed), and as a result, that their request failed to operate as a post-judgment motion that would extend their appellate deadlines, see Tex. R. App. 26.1(a) (when certain post-judgment motions are timely filed, notice of appeal is due within ninety days after judgment signed). Accordingly, the Yoos had until September 15, 2017—thirty days after the judgment was signed—to file their notice of appeal. See id. R. 26.1 (generally, notice of appeal must be filed within thirty days after judgment is signed); see also id. R. 26.3 (allowing fifteen-day extension of notice of appeal deadline on appellant's motion).
In response to the Clerk's notice, the Yoos have asserted that their deadline to file their notice of appeal was extended by operation of Rule 4.2 of the Texas Rules of Appellate Procedure. See id. R. 4.2 (no notice of trial court's judgment in civil case). According to the Yoos, because they were out of the country when the trial court signed the judgment, they did not receive notice of the signed judgment until August 27, 2017. See Tex. R. Civ. P. 306a(3) (when appealable order is signed, clerk of court shall immediately give notice to parties). The Yoos contend that their notice of appeal is timely because (1) under Rule 4.2, their twenty-day deadline to file their request for findings of fact and conclusions of law did not begin to run until they acquired actual knowledge of the signed judgment on August 27; (2) their request for findings of fact and conclusions of law was not due until September 18, 2017, and was timely filed on September 11; and (3) consequently, under Rule 26.1(a), their notice of appeal was not due until November 27, 2017—ninety days from the day they received notice of the judgment. We disagree that the Yoos' appellate deadline was extended by operation of Rule 4.2.
Ordinarily, a party's deadline for filing a notice of appeal is computed from the date the judgment or other appealable order was signed. See Tex. R. App. P. 26.1. If a party does not receive notice of a judgment or appealable order within twenty days after it is signed, Texas Rule of Appellate Procedure 4.2 provides a mechanism by which a party may, effectively, obtain an extension of his appellate deadlines. See id. R. 4.2. When a party establishes his right to an extension under Rule 4.2, the time period for filing a request for findings of fact and conclusions of law begins to run from the date the party received notice or actual knowledge of the judgment or appealable order, whichever is earlier, not to exceed ninety days after the judgment was signed. See id. 4.2(a).
In this case, the Yoos contend that, under Rule 4.2, they are entitled to an extension of their deadline to file their request for findings of fact and conclusions of law and, in turn, to an extension of their deadline to file their notice of appeal because they were unaware of the trial court's signed judgment until August 27. However, Rule 4.2 applies when more than twenty days have lapsed between when the judgment or order was signed and when the adversely affected party received notice or actual knowledge of the signing of the judgment or order. See id. R. 4.2(a)(1). Because the Yoos acknowledge that they received notice of the judgment only ten days after its signing, Rule 4.2 does not apply. Moreover, even assuming Rule 4.2 does apply, the procedure for obtaining additional time under Rule 4.2 is governed by Rule 306a of the Texas Rules of Civil Procedure, id. R. 4.2(b) (providing that procedure to gain extension of appellate deadlines due to lack of notice or actual knowledge of signing of judgment is governed by Rule 306a), and nothing in the record suggests that the Yoos followed the procedure for gaining additional time set forth in Rule 306a. See Yocham v. Farmers Tex. Cty. Mut. Co., No. 03-14-00572-CV, 2015 WL 658144, at *3 (Tex. App.—Austin Feb. 12, 2015, no pet.) (mem. op.) (dismissing for want of jurisdiction, concluding that appellant failed to demonstrate that her appellate deadlines were extended through application of rule 4.2 because appellant failed to demonstrate compliance with procedure for acquiring additional time under rule 306(a)). The Yoos have failed to demonstrate that their appellate deadlines were extended through application of Rule 4.2. See Tex. R. App. P. 4.2(a).
Under Rule 306a, "the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received 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(4). Further, Rule 4.2 requires the trial court, after hearing the motion, to sign an order finding the date on which 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).
Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal. See id. R. 25.1(b). We dismiss the appeal for want of jurisdiction. See id. R. 42.3(a).
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Dismissed for Want of Jurisdiction Filed: February 2, 2018