Opinion
05-23-00177-CV
11-20-2024
FIDEL LEAL, Appellant v. ABDULLKHLEK BESFKI AND DOSKY, INC. D/B/A THE AUTO PRO SHOP, AND SHAWWA INVESTMENTS LLC D/B/A HILINE MOTORS, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-16842
Before Justices Partida-Kipness, Goldstein, and Miskel.
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
Appellant Fidel Leal appeals a take-nothing judgment rendered against him in his personal injury suit against Appellees Abdullkhlek Besfki, Dosky, Inc. d/b/a The Auto Pro Shop, and Shawwa Investments LLC, d/b/a HiLine Motors. Leal raises two issues on appeal, asserting: (1) he timely filed a motion for new trial and notice of appeal, based on the date of his knowledge of the trial court judgment, such that this Court has jurisdiction; and (2) the trial court's take-nothing judgment is against the great weight and preponderance of the evidence. Appellees contend this Court lacks jurisdiction due to Leal's untimely notice of appeal. After reviewing the record, we conclude we lack jurisdiction and dismiss the appeal.
The trial court's judgment reflects Abdullkhlek Besfki's correct name is apparently Karwan H. Abdullkhalek. For simplicity, we refer to him as Besfki.
BACKGROUND
Leal filed suit in October 2019, alleging he was struck by a vehicle operated by Besfki. Leal and Besfki were both employees of Appellee Dosky, Inc. d/b/a The Auto Pro Shop. During the scope of their employment, Leal was directing Besfki to pull a vehicle into the mechanic shop. Apparently, Besfki accidently hit the accelerator and struck Leal, causing him to fall onto the car and then the garage floor. The car was moving at about one mile per hour and had moved less than two feet when it struck Leal. In his petition, Leal asserted negligence claims against the defendants.
The vehicle was owned by Appellee Shawwa Investments LLC, d/b/a HiLine Motors.
The case proceeded to a one-day bench trial. Leal presented medical records via a records custodian, though he did not present any expert medical testimony. Leal testified regarding the accident, his injuries, and loss of work. Besfki testified as to the events surrounding the accident. The trial court granted a directed verdict in favor of defendant Shawwa Investments after Leal rested his case. The trial concluded, and on October 26, 2022, the trial court signed a take-nothing judgment against Leal and in favor of all defendants.
The clerk mailed notice of the judgment on November 1, 2022. Leal filed a verified motion for new trial on December 15, 2022, with an affidavit in support. Therein, Leal's attorney claimed he did not receive notice of the judgment until November 28, 2022, when it was sent to him by opposing counsel. Leal's counsel also claimed he did not receive the clerk's mailed notice of judgment until December 4, 2022, due to a mailing problem. Leal's counsel asserted the window envelope mailed by the clerk did not show his complete address, delaying the delivery of the notice. Leal asserted that, based on the foregoing, his motion for new trial was timely under Rule 306a(4). Leal also asserted good cause existed for a new trial because the take-nothing judgment contradicted the trial evidence of Leal's injuries. After a hearing, the trial court denied Leal's motion for new trial on January 25, 2023.
Defendants filed a response to Leal's motion for new trial, and Leal filed a supplemental motion for new trial. However, neither of these filings appear in the appellate record. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (burden is on appellant to present a sufficient record to show error requiring reversal).
On February 16, 2023, Leal filed a motion to establish the date he received notice of the judgment, and requested the trial court establish November 28, 2022 as the date Leal's attorney received actual knowledge of the judgment. Leal then filed a notice of appeal on February 21, 2023. On March 1, 2023, the trial court heard Leal's motion to establish the date he received notice. The trial court denied the motion on March 6, 2023.
On appeal, this Court noted that the March 6, 2023 order did not include a finding of the date Leal or his counsel received notice or acquired actual knowledge the judgment was signed. We directed the trial court to enter a written order finding the date Leal or his counsel either received notice of or acquired actual knowledge that the judgment was signed. Ultimately, the trial court entered an order finding that Leal's counsel received actual knowledge of the signed judgment on November 4, 2022.
STANDARD OF REVIEW
Whether a court has subject-matter jurisdiction is a question of law we review de novo. See Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We review the trial court's findings of the date a party received notice of an order for legal and factual sufficiency of the evidence. Dishner v. Huitt- Zollars, Inc., 162 S.W.3d 370, 378 (Tex. App.-Dallas 2005, no pet.); Hanash v. Walter Antiques, Inc., 551 S.W.3d 920, 925 (Tex. App.-El Paso 2018, pet. denied).
ANALYSIS
On appeal, Leal argues that: (1) he timely filed a motion for new trial and notice of appeal, based on the date of his knowledge of the trial court judgment, such that this Court has jurisdiction; and (2) the trial court's take-nothing judgment is against the great weight and preponderance of the evidence. We begin, as we must, by addressing the jurisdictional issue.
I. Rule 306a
A trial court loses plenary jurisdiction to grant a new trial thirty days after signing a judgment. Tex.R.Civ.P. 329b(d). If applicable, however, Rule 306a operates to extend the start of the Rule 329b timetable. See Tex. R. Civ. P. 306a(1), (4). Post-judgment procedural timetables run from the day a party receives notice or actual knowledge of the judgment, rather than the day the judgment is signed, if the party (1) complies with the sworn motion, notice, and hearing requirements mandated by Rule 306a(5), and (2) proves it received notice of the judgment more than twenty but less than ninety-one days after it was signed. Tex.R.Civ.P. 306a; In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding).
Specifically, Rule 306a(4) states:
4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.Tex. R. Civ. P. 306a(4). To establish whether Rule 306a(4) applies, Rule 306a(5) requires:
the party adversely affected…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.Tex. R. Civ. P. 306a(5) (emphasis supplied). The purpose of the Rule 306a(5) motion is to establish a prima facie showing that the trial court has jurisdiction to conduct a hearing on whether Rule 306a(4) applies. Thompson v. Harco Nat. Ins. Co., 997 S.W.2d 607, 618 (Tex. App.-Dallas 1998, pet. denied), disapproved of on other grounds by John v. Marshall Health Servs., Inc., 58 S.W.3d 738 (Tex. 2001). Unless the party seeking relief makes this prima facie showing, he does not reinvoke the trial court's jurisdiction to conduct a hearing on whether to grant relief under Rule 306a(4). Id. Thus, compliance with Rule 306a(5) is a prerequisite for invoking the trial court's jurisdiction to grant relief under Rule 306a(4). Id. And, compliance with the provisions of Rule 306a(5) is a jurisdictional prerequisite to extending the time to file post-judgment motions. See Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987).
This Court addressed the requirements of Rule 306a(5) in Womack-Humphreys Architects, Inc. v. Barrasso, 886 S.W.2d 809, 815 (Tex. App.-Dallas 1994, writ denied), disapproved of on other grounds by John v. Marshall Health Servs., Inc., 58 S.W.3d 738 (Tex. 2001). This Court held that Barrasso's motion for new trial failed to satisfy Rule 306a(5) for several reasons, including that the motion and affidavit dealt only with Barrasso; they failed to show whether Barrasso's attorney either received notice or acquired actual knowledge within twenty days of the judgment. Id. at 814-15. Since Barrasso's Rule 306a(5) motion and affidavit did not make a prima facie showing that Rule 306a(4) applied, they did not reinvoke the trial court's jurisdiction to hear the motion. Id.
We later relied on Barrasso in Thompson v. Harco Nat. Ins. Co., 997 S.W.2d 607, 618 (Tex. App.-Dallas 1998, pet. denied), disapproved of on other grounds by John v. Marshall Health Servs., Inc., 58 S.W.3d 738 (Tex. 2001). There, we concluded the affidavits and motions did not meet the requirements of Rule 306a(5), largely because the documents did not address when the party himself first learned of a default judgment. Id. at 621-22.
In doing so, we expressly stated the requirements of Rule 306a(5):
[A] motion and/or its accompanying affidavits must state, under oath, two specific dates: (1) the specific date the party first either (a) received the clerk's notice of the judgment, or (b) acquired actual knowledge of the judgment; and (2) the specific date the party's attorney first either (a) received the clerk's notice of the judgment, or (b) acquired actual knowledge of the judgment. These dates must be more than twenty days after the judgment was signed.Id. at 619. We emphasized these dual requirements in Auto. Consultants v. Gen. Motors Corp., No. 05-01-00479-CV, 2002 WL 386856, at *3 (Tex. App.-Dallas Mar. 13, 2002, pet. denied) (not designated for publication):
To establish a prima facie case of jurisdiction "a [rule 306a(5) motion] and/or its accompanying affidavits must state, under oath, two specific dates: (1) the specific date the party first either (a) received the clerk's notice of the judgment, or (b) acquired actual knowledge of the judgment; and (2) the specific date the party's attorney first either (a) received the clerk's notice of the judgment, or (b) acquired actual knowledge of the judgment."(emphasis in original). Our sister courts have applied Rule 306a similarly. E.g., Korczynski v. Cowboy Up Ranch Furniture, LLC, 651 S.W.3d 602, 606 (Tex. App.-Waco 2022, no pet.) (Rule 306a motion failed to address whether all of plaintiffs' attorneys had notice or knowledge of judgment); Jarrell v. Bergdorf, 580 S.W.3d 463, 468 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (dismissing appeal for want of jurisdiction where plaintiffs only addressed notice and actual knowledge as to their counsel; they did not negate the possibility that plaintiffs received notice or acquired actual knowledge within twenty days after the trial court signed the dismissal order); In re J.S., 392 S.W.3d 334, 338 (Tex. App.-El Paso 2013, no pet.) ("[N]otice and actual knowledge must be negated by both the party and the party's counsel in order to make a prima facie showing of lack of timely notice.").
II. Application
Here, the relevant procedural dates and filings are as follows:
10/11/22 Bench trial on Leal's personal injury suit
10/26/22 Trial court signs a take-nothing judgment against Leal
11/01/22 Clerk mails notice of judgment to the parties
11/25/22 30-day deadline for post-judgment motions
11/28/22 Date Leal's counsel claims he first learned of the signed judgment (from opposing counsel)
12/04/22 Date Leal's counsel claims he received the clerk's notice of judgment
12/15/22 Leal's sworn motion for new trial and affidavit in support
01/23/23 Hearing on motion for new trial
01/25/23 Order denying motion for new trial
02/16/23 Leal's motion to establish date of notice
02/21/23 Leal's notice of appeal
03/01/23 Hearing on motion to establish date of notice
03/06/23 Ordering denying Leal's motion to establish date of notice
10/13/23 In response to this Court's order, trial court signs order establishing
11/04/22 as the date Leal's counsel received actual knowledge of the signed judgment
In his sworn motion for new trial and affidavit in support, Leal's counsel states the signed judgment was sent to him by opposing counsel on November 28, 2022. Counsel states that while the clerk mailed the notice of judgment on November 1, 2022, due to a mailing error, he did not receive the clerk's notice until December 4, 2022. However, the motion and affidavit do not address whether and when Leal himself had notice or actual knowledge of the signed judgment, nor do they disavow that Leal had such notice or knowledge. Furthermore, even if the motion and affidavit supported jurisdiction in the trial court for a Rule 306a hearing, Leal did not offer any additional evidence at the hearing. Leal's counsel stated he was relying on the prior motion for new trial and related affidavit.
Under these facts, our precedent compels a conclusion that Leal failed to make a prima facie showing to invoke the protections of Rule 306a and extend the trial court's jurisdiction. See Barrasso, 886 S.W.2d at 814-15; Thompson, 997 S.W.2d at 621-22; Auto. Consultants, 2002 WL 386856, at *4; see also Korczynski, 651 S.W.3d at 606; Jarrell, 580 S.W.3d at 468; In re J.S., 392 S.W.3d at 338. Because the requisite jurisdictional facts were not alleged in the Rule 306a(5) motion, the trial court's plenary power expired thirty days after signing the October 26, 2022 judgment. Accordingly, Leal's December 15, 2022 motion for new trial was untimely. Unless a timely post-judgment motion is filed that extends the appellate timetable, the notice of appeal is due thirty days after the judgment is signed. Tex.R.App.P. 26.1. Therefore, Leal's February 21, 2023 notice of appeal was also not timely. Without a timely filed notice of appeal, this Court lacks jurisdiction, and we must dismiss the case. Tex.R.App.P. 25.1(b). We overrule Leal's first issue.
Our resolution of the jurisdictional issue forecloses consideration of Leal's second issue. Tex. R. App. 47.1.
CONCLUSION
Leal did not make a prima facie showing to invoke the protections of Rule 306a and extend the trial court's jurisdiction. Therefore, his motion for new trial and notice of appeal were untimely. Accordingly, we dismiss the appeal for want of jurisdiction. Tex.R.App.P. 43.2(f).
JUDGMENT
In accordance with this Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction.
It is ORDERED that appellees ABDULLKHLEK BESFKI AND DOSKY, INC. D/B/A THE AUTO PRO SHOP, AND SHAWWA INVESTMENTS LLC D/B/A HILINE MOTORS recover their costs of this appeal from appellant FIDEL LEAL.
Judgment entered.