Opinion
10-20-00133-CV
10-29-2021
TERRY AND KIM SCOTT, Appellant v. S2S DOMAIN WACO ASSOCIATES, LLC AND ASPEN HEIGHTS WACO PROJECT, LTD, Appellee
From the 414th District Court McLennan County, Texas Trial Court No. 2018-20-5.
Before Gray Chief Justice, Johnson Justice, and Wright Visiting Justice.
The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code Ann. §§ 74.003, 75.002, 75.003.
ORDER
PER CURIAM.
In this matter, appellants, Terry and Kim Scott, complain about the trial court's granting of a final summary judgment in favor of appellees, S2S Domain Waco Associates, LLC and Aspen Heights Waco Project, Ltd. Among their issues, appellants complain that they were not provided notice, nor did they have actual knowledge, of the final summary judgment granted in favor of appellees, which resulted in their notice of appeal being filed outside the applicable appellate deadlines. Appellants filed, among 1 other things, a motion to extend the appellate deadlines under Texas Rule of Civil Procedure 306a. See Tex. R. Civ. P. 306a(3)-(4). The trial court denied appellants' Rule 306a motion.
Here, appellants challenge not only the propriety of the trial court's ruling on the Rule 306a motion, but also the trial court's ruling on the underlying final summary judgment motion. However, after a review of the record and after oral argument, it has been discovered that the Clerk's Record in this matter does not contain a file-stamped final summary judgment purportedly signed by the trial court on November 4, 2019.
Unless an interlocutory appeal is expressly authorized by statute, an appellate court only has jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The appealable final judgment in this case is the trial court's final summary judgment purportedly signed on November 4, 2019. As stated earlier, the record does not contain a file-stamped final summary judgment signed by the trial court. See Tex. R. App. P. 34.5(a)(5) (requiring that the Clerk's Record contain "the court's judgment or other order that is being appealed"). Accordingly, pursuant to Texas Rule of Appellate Procedure 34.5(c)(1), we direct the trial court clerk to file in this Court, within fourteen days of this order, a Supplemental Clerk's Record containing the omitted file-stamped, final summary judgment purportedly signed on November 4, 2019. See id. at R. 34.5(c)(1). 2
If the file-stamped November 4, 2019 final summary judgment is lost or destroyed, pursuant to Texas Rule of Appellate Procedure 34.5(e), the parties may, by written stipulation, deliver a copy of the file-stamped November 4, 2019 final summary judgment to the trial court clerk for inclusion in a Supplemental Clerk's Record in this matter within fourteen days from the date of this order. See id. at R. 34.5(e). However, if the parties cannot agree, we direct the trial court to determine what constitutes an accurate copy of the file-stamped November 4, 2019 final summary judgment and order it be included in a Supplemental Clerk's Record to be filed in this Court within fourteen days from the date of this order. See id.
In addition to the foregoing, we abate and remand this proceeding to the trial court for additional findings. As mentioned above, among the issues asserted on appeal is trial court's denial of a motion filed under Texas Rule of Civil Procedure 306a. See Tex. R. Civ. P. 306a. It appears that the issue pertaining to the ruling on the Rule 306a motion centers on when appellants acquired actual knowledge of the trial court's November 4, 2019 final summary judgment under Rule 306a(4). See id. at R. 306a(4). Texas Rule of Appellate Procedure 4.2(c) provides that, in this instance, 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). Our record does not contain such an order. 3
Accordingly, we direct the trial court make findings that include, but are not limited to, the required finding in Texas Rule of Appellate Procedure 4.2(c) and any other findings that the trial court deems appropriate. See id. The trial court shall cause its findings to be filed in a Supplemental Clerk's Record in this Court within fourteen days of this order.
Record supplementation requested; abated and remanded. 4