Opinion
Appellate case number: 01-18-00535-CV
01-29-2019
Cameron Keith Erskin v. Alexis Lee and Attorney General for the State of Texas
ORDER Trial court case number: 16-DCV-235734 Trial court: 505th District Court of Fort Bend County
Rule 306a requires a party who claims not to have received notice of the judgment to prove this by filing a sworn motion asserting the date the party or her counsel first learned of the signing of the judgment. See TEX. R. CIV. P. 306a(4), (5). The clerk's record indicates that appellee Alexis Lee filed a motion for new trial claiming she did not receive notice of the judgment until May 6, 2018. When she filed this motion, Lee was represented by counsel, but the motion does not mention whether counsel received notice of the judgment or when counsel was retained. The trial court held a hearing and made an oral finding that Lee first learned of the judgment on May 6, 2019, but the trial court's written order contains no findings concerning when Lee or her counsel first received notice of the judgment, as required by Rule 4.2(c). See TEX. R. APP. P. 4.2(c).
The reporter's record reveals that the trial court stated that it determined that Lee first received notice of the judgment on May 9, but all proof supported a finding that Lee first learned of the judgment on May 6.
Accordingly, the court abates the appeal and remands to the trial court for preparation of a written order containing a finding of the first date that Lee obtained notice of the judgment, whether appellee was represented by counsel when the judgment was signed, and if so, when counsel first received notice of the judgment. The trial court shall prepare a written order incorporating its findings as required by Rule 4.2(c). See TEX. R. APP. P. 4.2(c). A supplemental clerk's record containing the trial court's order with its findings on or before February 19, 2019.
It is so ORDERED. Judge's signature: /s/ Peter Kelly
[ ] Acting individually [ ] Acting for the Court Date: January 29, 2019