Opinion
No. 05-16-00085-CV
03-30-2016
IN THE INTEREST OF A.M.B. AND A.L.B., CHILDREN
On Appeal from the 417th Judicial District Court Collin County, Texas
Trial Court Cause No. 417-53312-2014
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
Appellant, Daniel Burson, appeals from a child support arrearage judgment in favor of appellee signed on September 21, 2015. Because appellant's notice of appeal appeared untimely, the Court requested appellant to provide a supplemental clerk's record establishing the date on which appellant received notice of the judgment or alternatively, to explain how this Court has jurisdiction over the appeal. The appellant responded, but he failed to establish the date on which he received notice of the judgment. Because the record indicates appellant's January 26, 2016 notice of appeal was untimely, we lack jurisdiction. See TEX. R. APP. P. 25.1(b); 26.1.
Absent a timely filed notice of appeal or a post-judgment motion extending time to file an appeal, the trial court loses plenary power after thirty days from the signing of its judgment. TEX. R. CIV. P. 329b(d). If a party did not receive notice or acquire actual knowledge of the judgment within twenty days of its signing, the timetable to file a post-judgment motion begins on the date the party or his attorney received notice or acquired actual knowledge of the judgment's signing. TEX. R. CIV. P. 306a(4). But in "no event" will the timetable begin more than ninety days after the final judgment is signed. Id. A party must prove to the trial court by sworn motion that the party met the requirements of rule 306a(4). TEX. R. CIV. P. 306a(5). The party asserting rule 306a to extend post-trial deadlines must obtain a written order from the trial court establishing the date when the party or his attorney received notice or acquired actual knowledge of the judgment. Florance v. State, 352 S.W.3d 867, 873 (Tex. App.—Dallas 2011, no pet.). The sworn motion must be filed before the trial court loses plenary power calculated from the date of notice. In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding). If the trial court does not establish the date appellant received notice or acquired actual knowledge of the judgment, the general rule applies, and the trial court loses plenary power thirty days after the judgment was signed. Mem'l Hosp. of Galveston Cty. v. Gillis, S.W.2d 364, 365 (Tex. 1987).
Here the trial court's judgment was signed on September 21, 2015. Appellant filed his notice of appeal on January 26, 2016, 127 days after the judgment was signed. But appellant alleges he did not receive notice of the judgment until sometime in December 2015. The record indicates appellant did not file a post-judgment motion and he did not supplement the clerk's record with a ruling from the trial court establishing the date when he received notice or acquired actual knowledge of the judgment. Because appellant did not file a rule 306a motion, he is not entitled to the extension of time permitted by rule 306a. In re A.J.G., No. 05-14-01469-CV, 2015 WL 1568579, at *2 (Tex. App.—Dallas Apr. 7, 2015, pet. denied) (mem. op.); see also Grondoma v. Sutton, 991 S.W.2d 90, 93 (Tex. App.—Austin 1998, pet. denied). Consequently, appellant's notice of appeal was not timely filed. TEX. R. APP. P. 26.1. Without a timely filed notice of appeal, this Court lacks jurisdiction. TEX. R. APP. P. 25.1(b).
Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a).
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 160085F.P05
JUDGMENT
On Appeal from the 417th Judicial District Court, Collin County, Texas
Trial Court Cause No. 417-53312-2014.
Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating.
In accordance with this Court's opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered March 30, 2016.