Opinion
No. 05-05-00832-CV
Opinion issued August 16, 2005.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. cc-04-2801-b.
Dismissed.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
Richard A. Ejimole attempts to appeal the summary judgment granted in favor of NMC Limited 2, L.L.C. By letter dated July 21, 2005, we questioned our jurisdiction over this appeal and directed appellant to file a letter brief explaining how this Court has jurisdiction over this appeal within ten days. To date, appellant has not responded. We dismiss for lack of jurisdiction.
The judgment in this case was signed on September 21, 2004. A trial court loses plenary jurisdiction to grant a new trial thirty days after signing a judgment. Tex. R. Civ. P. 329b(d). Appellant did not file his motion for new trial until November 3, 2004, outside the trial court's plenary power to act on a motion for new trial. Absent a timely motion for new trial, to invoke this Court's jurisdiction, appellant's notice of appeal was due on or before October 21, 2004. See Tex.R.App.P. 25.1(b), 26.1. Because appellant's notice of appeal was not filed until January 27, 2005 it is not timely and this Court lacks jurisdiction over this appeal.
If applicable, rule 306a may operate to extend the start of the appellate timetable. See Tex. R. Civ. P. 306a(4); John v. Marshall Health Serv., Inc., 58 S.W.3d 738, 741 (Tex. 2001). However, compliance with the provisions of rule 306a is a jurisdictional prerequisite. Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987). The sworn 306a motion serves the purpose of establishing a prima facie case of lack of timely notice, thereby invoking the trial court's jurisdiction for the limited purpose of holding a hearing to determine the date of notice. Powell v. McCauley, 126 S.W.3d 158, 160 (Tex.App.-Houston [1st Dist.] 2002, no pet.). After hearing the motion, 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 the judgment was entered. See Tex.R.App.P. 4.2(c). To the extent appellant's motion for new trial was a rule 306a motion, our record does not contain such a written order. Further, by granting appellant's motion for new trial and entering a second summary judgment order, the trial court acted outside the limited purpose of holding a hearing to determine the date of notice so the appellate timetable could be reset.
Therefore, on the Court's own motion we dismiss this appeal for lack of jurisdiction. See Tex.R.App.P. 42.3(a).