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In re A.F.J.M.

Court of Appeals of Texas, Eighth District, El Paso
Jul 30, 2024
No. 08-24-00068-CV (Tex. App. Jul. 30, 2024)

Opinion

08-24-00068-CV

07-30-2024

IN THE INTEREST OF A.F.J.M., Appellant.


Appeal from the 440th District Court of Coryell County, Texas (TC# DC-20-51460)

Before Alley, C.J., Palafox, and Soto, JJ.

ORDER

This case was transferred from the Tenth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. § 73.001. We follow the precedent of the Tenth Court of Appeals to the extent it might conflict with our own. See Tex. R. App. P. 41.3.

PER CURIAM

Pursuant to Texas Rule of Appellate Procedure 10.4 (a), the Motion ruled on through this Order may have been decided by a single Justice sitting on the panel.

On April 12, 2024, this Court entered an order abating the appeal to give Appellant Steven R. Murphey the opportunity to either show proof or obtain proof that postjudgment deadlines were extended due to late notice of the trial court's final judgment. Tex.R.Civ.P. 306a. Appellant filed a response asserting a date of actual knowledge could be implied or determined by this Court. Because appellate rules require the trial court to sign an order and to make a finding of the date of notice or actual knowledge of the judgment, we disagree. See Tex. R. App. P 4.2(c).

Rule 4.2 of the Texas Rules of Appellate Procedure details the requirements to extend the appellate timetable when a party asserts it has been adversely affected by a late notice of the trial court's judgment. See Tex. R. App. P. 4.2. Subsection (c) requires 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." Tex.R.App.P. 4.2(c). Our record does not contain a written order pursuant to Rule 4.2(c). We cannot determine our jurisdiction over the trial court's final judgment without an express ruling by a written order on Appellant's Rule 306a motion. Additionally, Appellant asserts two different dates as the date he received notice or actual knowledge of the trial court's judgment-December 2, 2023, and February 5, 2024. It is for the trial court to determine whether Appellant proved he received late notice of the trial court's judgment, and, if he did, on what date. See Tex. R. Civ. P. 306a(5) (providing party adversely affected must prove in the trial court "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"); Tex.R.App.P. 4.2 (providing a party must follow the procedure of Rule 305a(5) to gain additional time).

In a letter response to this Court, Appellant asserts a written order is not needed based on In re Lynd Co., 195 S.W.3d 682 (Tex. 2006). Appellant's reliance on Lynd is misplaced. Interpreting Rule 306a of the Texas Rules of Civil Procedure, Lynd involved the trial court's grant of a motion for new trial filed later than 30 days after a final judgment was entered after movant asserted he received late notice Id. 686. The Texas Supreme Court held that, although the trial court failed to specifically find the date of late notice, the finding could be implied from the trial court's judgement granting the motion for new trial. Id. at 687. Focusing on trial rules, Lynd did not address the extension of the appellate timetable, as is relevant here. Id.

It is therefore ORDERED that the abatement is extended, and this matter is remanded to the trial court for the limited purpose of conducting a hearing and signing an order finding the date when Appellant first received notice or acquired actual knowledge of the signing of the final judgment. After such hearing is held, the trial court shall forward its findings to the District Clerk of Coryell County on or before September 13, 2024. The District Clerk shall prepare and forward a supplemental clerk's record containing the findings and forward the same to this Court on or before September 23, 2024. Further, the transcript of the hearing shall be prepared, certified and filed with this Court on or before September 23, 2024. This attempted appeal will be reinstated upon the date the complete supplemental clerk's record and reporter's record is filed with this Court.

IT IS SO ORDERED.


Summaries of

In re A.F.J.M.

Court of Appeals of Texas, Eighth District, El Paso
Jul 30, 2024
No. 08-24-00068-CV (Tex. App. Jul. 30, 2024)
Case details for

In re A.F.J.M.

Case Details

Full title:IN THE INTEREST OF A.F.J.M., Appellant.

Court:Court of Appeals of Texas, Eighth District, El Paso

Date published: Jul 30, 2024

Citations

No. 08-24-00068-CV (Tex. App. Jul. 30, 2024)