Opinion
No. 04-16-00115-CV
04-01-2016
Ruth Isela Acevedo SALDANA, Appellant v. Sonia Patricia HINOJOSA, Appellee
From the 381st Judicial District Court, Starr County, Texas
Trial Court No. DC-15-433
Honorable Jose Luis Garza, Judge Presiding
ORDER
Appellant seeks to appeal from a final order signed on December 10, 2015 dismissing her case for lack of prosecution. Notice of appeal was due on January 11, 2016. See TEX. R. APP. P. 26.1 (requiring notice of appeal to be filed within thirty days after the judgment is signed). A motion for extension of time to file the notice of appeal was therefore due on January 26, 2016. See TEX. R. APP. P. 26.3 (providing a fifteen-day grace period after the deadline for filing notice of appeal). Appellant filed her notice of appeal on March 2, 2016, well after the deadlines for filing the notice of appeal and motion for extension of time to file the notice of appeal had expired. See id. However, the clerk's record contains a "Motion to Extend Post-Judgment Deadlines" filed in the trial court by appellant on March 2, 2016 pursuant to Texas Rule of Civil Procedure 306a(4). See TEX. R. CIV. P. 306a(4). The motion, accompanied by affidavits from appellant and her trial counsel, states that the trial court clerk failed to provide notice of the judgment to appellant or her counsel as required by Rule 306a(3), and that the earliest date that either appellant or her counsel obtained actual knowledge of the judgement was February 25, 2016, when counsel filed a motion for default judgment and was informed by the trial court clerk that the case was closed. See TEX. R. CIV. P. 306a(3) (trial court clerk is required to immediately give notice to the party or her attorney by first-class mail that the final judgment was signed).
Generally, once the period for granting a motion for extension of time under Rule 26.3 has passed, a party can no longer invoke the appellate court's jurisdiction. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, Rule 4.2 of the Rules of Appellate Procedure creates an exception in situations where a party affected by a judgment or appealable order does not receive notice from the trial court clerk within twenty days after the judgment is signed as required by Rule of Civil Procedure 306a(3), and does not acquire actual knowledge of the judgment within twenty days of its signing. See TEX. R. APP. P. 4.2. Under those circumstances, Rule 4.2(a) provides that the time period for filing a notice of appeal does not begin to run until the date the party receives notice or acquires actual knowledge of the signing of the judgment, whichever is earlier. TEX. R. APP. P. 4.2(a). Subsection (b) of Rule 4.2 provides that the procedure for obtaining additional time is for the party to prove in the trial court, on sworn motion and notice, that the date on which the party or her attorney first received notice or acquired actual knowledge of the signed judgment was more than twenty days after the judgment was signed. TEX. R. APP. P. 4.2(b) (incorporating TEX. R. CIV. P. 306a(5)). Finally, subsection (c) of Rule 4.2 states that, "[a]fter 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." TEX. R. APP. P. 4.2(c).
Accordingly, it is ORDERED that this appeal is ABATED to the trial court for a period of thirty (30) days to permit the trial court to hold a hearing on appellant's "Motion to Extend Post-Judgment Deadlines" and to enter written findings determining the date on which appellant and/or her attorney first either received notice of the signed judgment or acquired actual knowledge of the signing of the judgment, in accordance with Rule 4.2. See TEX. R. APP. P. 4.2(b), (c); TEX. R. CIV. P. 306a(4), (5).
It is further ORDERED that the trial court clerk prepare and file a supplemental clerk's record containing the trial court's written findings and order, and that the court reporter prepare and file a reporter's record of any hearing, in this court within thirty (30) days from the date of this order. All other appellate deadlines are suspended pending further order of this court.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of April, 2016.
/s/_________
Keith E. Hottle
Clerk of Court