Argelio and Ana Herrera v. Germania Farm Mutual Insurance Association and Tracey Lachee Burkes

NUMBER 13-18-00606-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG
____________________________________________________________

ARGELIO AND ANA HERRERA, Appellants,

V.

GERMANIA FARM MUTUAL INSURANCE
ASSOCIATION AND TRACEY LACHEE BURKES, Appellees.
____________________________________________________________

On appeal from the County Court at Law No. 4
of Cameron County, Texas.
____________________________________________________________

MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras

Appellants Argelio and Ana Herrera attempted to perfect an appeal from a

judgment entered by the County Court at Law No. 4 of Cameron County, Texas in trial

court cause number 2017-CCL-00933. We dismiss the appeal for want of jurisdiction.
 I. BACKGROUND

On April 11, 2018, the trial court granted a post-appraisal motion for summary

judgment filed by appellees, Germania Farm Mutual Insurance Association and Tracey

Lachee Burkes. On July 11, 2018, appellants filed a verified motion for reinstatement of

the case on grounds that they did not receive timely notice of the judgment. See TEX. R.

CIV. P. 306a. Their motion for reinstatement read, in relevant part:

4. An order was apparently signed at some point, granting
Defendants’ Motion for Summary Judgment. However, this order was not
entered into the Court’s docket, and Plaintiffs’ counsel did not receive actual
or constructive notice of the order. No written notice was provided to
Plaintiffs or their counsel. No notice of a final order was sent by mail as
required by Texas Rule of Civil Procedure 306a. See TEX. R. CIV. P.
306a(3) (“When the final judgment or other appealable order is signed, the
clerk of the court shall immediately give notice to the parties or their
attorneys of record by first-class mail. . . .”).

5. On June 14, 2018, Plaintiffs sent Defendants a written
demand to resolve the claim. Defendants’ response refused to pay for
damages included in the insurance code, stating that the Court had ruled
and that the Court had lost plenary power. Prior to this email, Plaintiffs and
their counsel had not received constructive or actual knowledge of any
appealable order.

....

12. Under Rule 306a(4), the court’s plenary power expires 30 days from
the date Plaintiff first received notice or acquired actual notice, not to exceed
90 days from the date. See TEX. R. CIV. P. 306a(4). Here, Plaintiffs’
counsel acquired actual knowledge on June 18, 2018. Plaintiff[s] thus
[have] timely filed a motion to reinstate under Rule 306a.

(Internal citations omitted). On July 16, 2018, appellants also filed a motion for new trial,

or alternatively, for reconsideration of the summary judgment. On September 20, 2018,

appellants filed an amended motion for new trial, or alternatively, for reconsideration of

the summary judgment. On September 25, 2018, the trial court granted appellants’

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motion to reinstate but did not include a finding regarding the date that appellants received

notice of the judgment. That same day, the trial court denied appellants’ amended

motion for new trial or reconsideration.

Appellants filed a notice of appeal on October 25, 2018, an amended notice of

appeal on October 29, 2018, and a second amended notice of appeal on November 2,

2018. On November 1, 2018, the Clerk of this Court notified appellants that it appeared

that their notice of appeal had not been timely perfected. The Clerk advised appellants

that the appeal would be dismissed if the defect was not corrected within ten days from

the date of receipt of the Court’s directive. The appellants did not respond to the Clerk’s

notice.

On November 7, 2018, appellees filed an objection to the appellants’ second

amended notice of appeal. Appellees contended that appellants failed to timely perfect

their appeal insofar as they filed their notice of appeal one hundred and ninety-seven

days after the trial court signed the order granting the summary judgment and one

hundred and twenty-nine days after appellants received notice of the court’s order.

Appellees requested that we dismiss this appeal. Appellants did not respond to the

Court’s notice regarding the timeliness of their notice of appeal or appellees’ request that

we dismiss the case. However, appellants have subsequently filed three motions for

extensions of time to file their brief in this matter.

II. APPLICABLE LAW

Appellants have argued that they lacked timely notice that the trial court had signed

the summary judgment. Texas Rule of Civil Procedure 306a(3) requires the clerk of the

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court to provide notice regarding the entry of judgments or appealable orders. This rule

states, in relevant part:

When the final judgment or other appealable order is signed, the clerk of
the court shall immediately give notice to the parties or their attorneys of
record by first-class mail advising that the judgment or order was signed.
Failure to comply with the provisions of this rule shall not affect the periods
mentioned in paragraph (1) of this rule, except as provided in paragraph (4).

TEX. R. CIV. P. 306a(3). Paragraph one, as referenced in the rule, provides that the

deadline for filing post-judgment motions, such as a motion for new trial or motion to

reinstate a case, begins to run on the date the judgment is signed. See id. R. 306a(1).

Paragraph four addresses what happens, as here, when a party does not receive notice

of a judgment. See id. R. 306a(4). Rule of Civil Procedure 306a(4) provides that when

more than twenty days have passed between the date that the trial court signs the

judgment or appealable order and the date that a party receives notice or acquires actual

knowledge of the signing, the periods referenced in paragraph one will begin on the earlier

of the date the party received notice or acquired actual knowledge of the signing, and in

no event will the period begin more than ninety days after the judgment was signed. TEX.

R. CIV. P. 306a(4); see TEX. R. APP. P. 4.2(a)(1); Pilot Travel Ctrs., LLC v. McCray, 416

S.W.3d 168, 176 (Tex. App.––Dallas 2013, no pet.); see also John v. Marshall Health

Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001). To benefit from the extension of time

contemplated by Rule 306a, the movant must prove, on sworn motion and notice, the

date on which it first received notice or acquired actual knowledge of the judgment—a

date that must be more than twenty days after the date the order was signed. See TEX.

R. CIV. P. 306a(5); see also TEX. R. APP. P. 4.2(a)(1),(b).

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 III. ANALYSIS

The trial court signed the judgment subject to appeal on April 11, 2018. Based

upon the record presented, appellants received notice of the judgment on June 18, 2018.

Appellants filed their motion to reinstate on July 11, 2018 and the motion for new trial on

July 16, 2018. The trial court granted the motion to reinstate but denied the motion for

new trial. The trial court did not make a written finding of the date that the appellants first

either received notice or acquired actual knowledge that the judgment was signed. See

In re Lynd Co., 195 S.W.3d 682, 686 (Tex. 2006) (orig. proceeding) (discussing the

difference between Texas Rule of Civil Procedure 306a and Texas Rule of Appellate

Procedure 4.2).

Here, there is evidence to imply from the trial court’s order of reinstatement that

appellants received notice that the judgment had been signed on June 18, 2018.

Appellants’ verified motion for reinstatement specifically averred that they “acquired

actual knowledge on June 18, 2018.” Because June 18, 2018 was more than twenty,

but less than ninety-one days after the judgment was signed on April 11, 2018, and

because appellants timely filed their Rule 306a sworn motion on July 11, 2018, within

thirty days of first receiving notice of the judgment on June 18, 2018, Rule 306a operated

to extend the trial court’s plenary power to grant their motion to reinstate or motion for

new trial. See id. Thus, June 18, 2018 served as the date from which all post-judgment

deadlines and the trial court’s plenary power began to run. See id.

However, in its order granting the motion to reinstate and its order denying the

motion for new trial, the trial court did not make a finding as to the date appellants obtained

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notice of the judgment. For purposes of appellate jurisdiction, Texas Rule of Appellate

Procedure 4.2(c) requires that the trial court 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 was signed. See TEX. R. APP. P. 4.2(c); Nedd-Johnson v. Wells Fargo

Bank, N.A., 338 S.W.3d 612, 613 (Tex. App.—Dallas 2010, no pet.). Without the trial

court order and finding required by Rule 4.2(c), the time for filing a notice of appeal of the

April 11, 2018 judgment was not extended. See TEX. R. APP. P. 4.2(c); Nedd-Johnson,

338 S.W.3d at 613; see also Johnson v. Linebarger Goggan Blair & Sampson, LLP, No.

01–15–00950–CV, 2017 WL 1173886, at *3 (Tex. App.–Houston [1st Dist.] Mar. 30, 2017,

no pet. h.) (mem. op.). In the absence of a finding from the trial court of the date of actual

notice, the period for filing a notice of appeal of the judgment began on April 11, 2018,

the date the summary judgment was signed. See TEX. R. APP. P. 4.2(c) & 26.1; Nedd-

Johnson, 338 S.W.3d at 613; see also Smith v. Aldine Indep. Sch. Dist., No. 01-17-00700-

CV, 2017 WL 5623579, at *1 (Tex. App.—Houston [1st Dist.] Nov. 21, 2017, pet. denied)

(mem. op.).

In the absence of this order and finding, we lack jurisdiction over the attempted

appeal. See Mem’l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam);

Grondona v. Sutton, 991 S.W.2d 90, 92 (Tex. App.–Austin 1998, pet. denied); see also

Smith, 2017 WL 5623579, at *1. And, even if appellants had complied with applicable

procedures, the extension of time provided under the rules would still be insufficient to

make their notice of appeal timely. Stated otherwise, even if we utilize June 18, 2018 as

the date upon which appellants first received notice of the judgment, appellant’s notice of

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appeal was untimely. The notice of appeal must be filed within thirty days after the

judgment or other appealable order is signed when appellant has not filed a timely motion

for new trial, motion to modify the judgment, motion to reinstate, or request for findings of

fact and conclusion of law. See TEX. R. APP. P. 26.1. The notice of appeal must be filed

within ninety days after the judgment is signed if the appellant has filed a qualifying post-

judgment motion. See id. Appellants filed a motion for new trial, and accordingly, the

notice of appeal was due ninety days after June 18, 2018, or September 16, 2018. See

id. The notice of appeal was not filed until October 25, 2018. Appellants’ notice of

appeal was indisputably late.

IV. CONCLUSION

The Court, having examined and fully considered the second amended notice of

appeal, the record before this Court, and appellee’s motion to dismiss, is of the opinion

that we lack jurisdiction over this appeal. Accordingly, we grant appellees’ motion to

dismiss. We deny appellants’ motions for extension of time to file their brief. We

dismiss this appeal for want of jurisdiction. All other pending motions, if any, are likewise

dismissed.

DORI CONTRERAS
Chief Justice

Delivered and filed the
14th day of February, 2019.

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