Opinion
NO. 14-21-00630-CV
05-18-2023
GILCHRIST COMMUNITY ASSOCIATION, Appellant v. J. Marcus HILL and James E. Bradley, Appellees
John P. Venzke, Houston, for Appellee J. Marcus Hill and James Bradley. Winston E. Cochran, Jr., for Appellant. Kenneth E. McKay, John P. Venzke, Houston, for Appellee County of Galveston. Panel consists of Justices Bourliot, Zimmerer, and Spain.
On Appeal from the County Court No. 2, Galveston County, Texas, Trial Court Cause No. CV76026A
John P. Venzke, Houston, for Appellee J. Marcus Hill and James Bradley.
Winston E. Cochran, Jr., for Appellant.
Kenneth E. McKay, John P. Venzke, Houston, for Appellee County of Galveston.
Panel consists of Justices Bourliot, Zimmerer, and Spain.
OPINION ON REHEARING
Charles A. Spain, Justice
On rehearing, appellant Gilchrist Community Association (Gilchrist) argues that this court erred in dismissing its appeal for lack of jurisdiction. Gilchrist asserts that it complied with the requirements for extending postjudgment deadlines by timely filing a sworn motion, but that the trial court did not grant an evidentiary hearing and refused to rule on its motion. Tex. R. Civ. P. 306a(5) (motion to extend post-judgment deadlines proper if no timely notice of final judgment was received). Gilchrist further argues this court has jurisdiction to order the trial court to make the findings required by Texas Rule of Appellate Procedure 4.2 and urges this court to remand the case to the trial court for a finding as to the date Gilchrist received notice of the final judgment. Tex. R. App. P. 4.2. We agree and grant Gilchrist’s motion to address these contentions.
There appears to be a split between our sister courts of appeal on this issue. In Latter & Blum of Texas, the Fort Worth Court of Appeals confronted a similar situation in which the trial court declined to make any rulings or findings on appellant’s motion to extend postjudgment deadlines (although a hearing was conducted). Latter & Blum of Tex., LLC v. Murphy, No. 02-17-00463-CV, 2019 WL 3755765, at *2 (Tex. App.—Fort Worth Aug. 8, 2019, pet. denied) (mem. op.). In that case, the court abated the case and instructed the trial court to sign an order making a "date-of- notice finding." Id. In so doing, the court concluded that Texas Rule of Appellate Procedure 4.2 operated to extend appellate deadlines, invoked by the filing of a compliant Rule 306a(5) motion, even though the trial court never made a "date-of-notice finding." Id. at *3.
In contrast, the Dallas Court of Appeals has concluded that appellate jurisdiction is only invoked by the trial court signing a written order with a date-of-notice finding. See Nedd-Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612, 613 (Tex. App.—Dallas 2010, no pet.) ("Without a finding of the date notice was actually received, there can be no extension of the appellate timetables."). This reasoning has been adopted by the Eastland Court of Appeals and the First Court of Appeals. See Unity Nat'l Bank v. Scroggins, No. 01-20-00593-CV, 2021 WL 4897833, at *5 (Tex. App.—Houston [1st Dist.] Oct. 21, 2021, pet. abated) (mem. op.) (citing Nedd-Johnson, 338 S.W.3d at 613) (requirement that trial court must sign date-of-notice findings is jurisdictional); Rendon v. Swanson, No. 11-19-00260-CV, 2021 WL 3672622, at *3 (Tex. App.—Eastland Aug. 19, 2021, no pet.) (mem. op.) (quoting Nedd-Johnson, 338 S.W.3d at 613).
On appeal, the supreme court abated the case and directed the trial court to make a finding on the movant's date of notice. See Unity Nat'l Bank v. Scroggins, No. 22–0393 (Tex. Mar. 17, 2023, order). The order issued by the supreme court requires the trial court to comply with Texas Rule of Appellate Procedure 4.2(c).
[1] After further consideration, we conclude Rule 4.2 does not require the signing of the date-of-notice-finding by the trial court to invoke appellate jurisdiction. We begin with the language of Rule 4.2, which provides that a party will receive additional time to file documents:
[i]f a party affected by a judgment or other appealable order has not—within 20 days after the judgment or order was signed—either received the notice required by Texas Rule of Civil Procedure 306a.3 or acquired actual knowledge of the signing, then a period that, under these rules, runs from the signing will begin for that party on the earlier of the date when the party receives notice or acquires actual knowledge of the signing. But in no event may the period begin more than 90 days after the judgment or order was signed.
Tex. R. App. P. 4.2(a)(1). The grant of additional time to file documents applies to a notice of appeal to an appellate court. See id. The next subpart of the rule explains what a party must do to secure the additional time: "The procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a.5." Tex. R. App. P. 4.2(b). The language of the rule does not condition the receipt of additional time on a signed order containing a date-of-notice finding. See id. Rather, it is the sworn motion, filed in the trial court, in compliance with Rule 306a that provides the additional time to file documents. See Tex. R. Civ. P. 306a(5).
[2] Although the next subpart of Rule 4.2 does require the trial court to sign "a written order that finds the date when the party or the party’s attorney first either received notice or acquired actual knowledge that the judgment or order was signed," the language of the rule does not make the written order a jurisdictional prerequisite for an appellate court. Tex. R. App. P. 4.2(c); see, e.g., Garza v. Texas Alcoholic Beverage Comm'n, 89 S.W.3d 1, 8 (Tex. 2002) (assuming that "Legislature did not intend to deprive a party of appellate remedies on the sole ground that the district court was unable or unwilling to perform its statutory duty"). Important to our analysis, the language in Rule 4.2(c) imposes action only on the trial court. See Tex. R. App. P. 4.2(c). It does not speak to any action required by the party seeking to extend postjudgment timelines. See id.
[3] The supreme court has explained that a sworn motion in compliance with Rule 306a "establishes a prima facie case that the party lacked timely notice and invokes a trial court’s otherwise-expired jurisdiction for the limited purpose of holding an evidentiary hearing to determine the date on which the party or its counsel first received notice or acquired knowledge of the judgment." In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) (explaining requirements of Rule 306a). Given the explicit wording of Rule 4.2, we conclude that a sworn motion in compliance with Rule 306a also invokes the otherwise-expired jurisdiction of an appellate court for the limited purpose of addressing the trial court’s ruling on the motion to extend postjudgment deadlines, as well as any failure to rule on a sworn motion compliant with Rule 306a. See Latter & Blum of Tex., LLC v. Murphy, 2019 WL 3755765, at *2–3
The supreme court also has concluded that the trial court's duty to hold the hearing and make a finding was subject to mandamus review. See Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994) (orig. proceeding) (per curiam) (granting mandamus relief to require trial court to hold hearing and make requested finding under predecessor rule to Rule 306(a) when motion was filed on October 21, 1993, based on allegation that movant did not become aware of judgment until September 21, 1993, and trial court failed to hold hearing on motion). Although the court in Cantu stated that movant was "precluded from pursuing any appeal without the finding she seeks," Cantu was also decided based on a predecessor rule of appellate procedure. See former Tex. R. App. P. 5(b)(5), 49 Tex. B.J. 556, 560 (1986) (repealed 1997). While facially similar to current Rule 4.2, the predecessor rule differs in some important ways from the current rule. The predecessor rule did not specifically identify the procedure to gain the additional time on appellate deadlines as current Rule 4.2(b) does, nor did the predecessor rule segregate the requirements for the party seeking relief from the actions required of the trial court. Compare former Tex. R. App. P. 5(b)(5):
Motion, Notice and Hearing. In order to establish the application of subparagraph (b)(4) of this rule, 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 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. The trial judge shall find the date upon which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing of the judgment at the conclusion of the hearing and include this finding in the court’s order.
with Tex. R. App. P. 4.2(b), (c):
(b) Procedure to Gain Additional Time. The procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a.5.
(c) The Court's Order. 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 that the judgment or order was signed.
Having concluded that this court has limited jurisdiction over this case to review issues stemming from Gilchrist’s Rule 306a motion to extend postjudgment deadlines, we grant Gilchrist’s motion for rehearing, withdraw our prior opinion filed November 29, 2022, and vacate our November 29, 2022 judgment.
[4] Without any extension provided for in Rule 306a(4), Gilchrist’s notice of appeal was untimely and does not confer jurisdiction to this court. However, Gilchrist filed a sworn motion to extend postjudgment deadlines pursuant to Rule 306a in the trial court asserting it did not receive notice of the final judgment until August 3, 2021 (84 days after the judgment). See Tex. R. App. P. 4.2(c); see also Tex. R. Civ. P. 306a(4), (5). We cannot determine our jurisdiction over the trial court’s final judgment without a ruling on Gilchrist’s Rule 306a motion.
Accordingly, by separate order, we abate this case and remand it to the trial court for the limited purpose of conducting a hearing and signing an order finding the date when Gilchrist first either received notice or acquired actual knowledge that the judgment was signed.