Opinion
NO. 09-16-00358-CV
12-07-2016
ANTHONY RAY BANKS, Appellant v. BEAUMONT POLICE DEPARTMENT, ET AL., Appellees
On Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. E-198,296
ORDER
The appellees, the Beaumont Police Department, James Singletary and Shirley Spitzer, filed a motion to dismiss the appeal of Anthony Ray Banks for lack of jurisdiction. Appellees contend that Banks filed his notice of appeal too late to perfect an appeal. Banks filed a response in which he claims that he received late notice that the judgment had been signed.
On August 10, 2016, the trial court signed orders granting pleas to the jurisdiction filed by the City of Beaumont, James Singletary, and Shirley Spitzer, and dismissing the plaintiff's claims against the defendants with prejudice. Although it is not clear whether Banks added the City of Beaumont as a defendant, it appears that no other parties were before the court and the orders merged into a final judgment. Banks filed a notice of appeal on October 3, 2016. On that date he filed with the trial court a request for findings of fact and conclusions of law in which he alleged that he received late notice that a judgment had been signed.
The motion appellant filed in the trial court complains that appellant did not receive notice that a judgment had been signed. See Tex. R. Civ. P. 306a.4 (providing circumstances under which time periods shall run from the date a party received actual knowledge of the signing of judgment). The procedure to gain additional time to file documents on appeal is governed by Rule 306a.5. See Tex. R. App. P. 4.2(b); Tex. R. Civ. P. 306a.5. After a hearing on the motion, the trial court must sign a written order that finds the date when the party either received notice or acquired actual knowledge that the judgment was signed. See Tex. R. App. P. 4.2(c). However, in no event may the period that runs from the signing of the judgment begin more than 90 days after the judgment was signed. See Tex. R. App. P. 4.2(a)(1); Tex. R. Civ. P. 306a.4.
In this case, appellant claims he received late notice of the judgment signed on August 10, 2016. The filing of a motion under Rule 306a.5 invokes the trial court's jurisdiction for the limited purpose of holding an evidentiary hearing to determine the date on which appellant first received notice or acquired knowledge of a judgment. See In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006); John v. Marshall Health Servs., 58 S.W.3d 738, 741 (Tex. 2001).
It is, therefore, ORDERED that the appeal is abated and the case is remanded to the trial court for a Rule 306a determination. See Tex. R. Civ. P. 306a. The appeal shall be reinstated without further order of this Court when the supplemental reporter's record of the evidentiary hearing and the supplemental clerk's record containing the trial court's order is filed with the Clerk of the Court of Appeals. The supplemental records are due on or before Friday, January 6, 2017. See Tex. R. App. P. 4.2(c). Appellees' motion to dismiss remains pending before the Court of Appeals.
ORDER ENTERED December 7, 2016.
PER CURIAM Before McKeithen, C.J., Horton and Johnson, JJ.