Juan Enriquez v. Brad Livingston ( 2015 )

IN THE
TWELFTH COURT OF APPEALS
No. 12-15-00225-CV
OCTIJZ0B
JUAN ENRIQUEZ,
^r——in
Plaintiff-Appellanj
v.
BRAD LIVINGSTON, ET AL.,
Defendants-Appellees.
Appeal from the 369th District Court
of Anderson County, No. XXX-XX-XXXX
SUPPLEMENT TO APPELLANT'S MOTION TO REINSTATE
APPEAL OR FOR REHEARING OR RECONSIDERATION
TO THE HONORABLE JUDGES OF SAID COURT:
Juan Enriquez, Appellant,supplements his motion to
reinstate appeal or for rehearing or for reconsideration,
showing as grounds the following.
I.
The Court noted that Appellant informed the Court in his
amended notice of appeal that he had on July 15,2015, filed a
motion to vacate and correct judgment, but incorrectly stated
it had not been provided with a copy of the motion. The motion,
as pointed out in the motion to reinstate, was provided to the
Court as part of the record on appeal. The motion to vacate.:..
1. Informs the district court that its judgment
or order of dismissal entered in this cause on April 22,
2015, but not mailed to the Plaintiff by the District
Clerk of Anderson County until July 1,2015 and not
delivered to him by Defendant prison officials until
mid-July of 2015.
2. The motion is verified.
3. Mid-July is more than 20 days but less than
90 days after the judgment or order was signed.
4. The motion to vacate was filed on July 16, 2015,
via the mailbox filing rule and received in the district
clerk's office on July 24, 2015.
IT.
In In re Lynd Co., 195 S.W.3d 682 (Tex. 2006), the Texas
Supreme Court held:'
Post-judgment procedural timetables — including the period of the
trial court's plenary power — run from the day a party receives
notice of judgment, rather than the day 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. See Tex.R.Civ.P. 306a. Specifically,
Rule 306a(5) requires that the party alleging late notice of
judgment file a sworn motion with the trial court establishing
the date the party or its counsel first learned of the judgment.
Tex.R.Civ.P. 306a(5); see also Gillis, 741 S.W.2d at 365. The
motion must be filed before the trial court's plenary power —
measured from the date of notice established under Rule 306a(4 —
expires. John v. Marshall Health Servs, 58 S.W.3d 738, 741 (Tex.
2001). The sworn motin establishes a prima facie case that the
party lacked timely notice and invokes a trial court's
otherwise—expired jurisdiction for the limited purpose of holding
an evidentiary hearing to determine the date on which the party
or its counsel first received notice or acquired knowledge of the
judgment. See Grondona v. Sutton, 991 S.W.2d 90, 91-92 (Tex.App.—
Austin 1998, pet. denied); Cont'l Cas. Co. v. Davilla, 139 S.W.3d
374, 379 (Tex.App. -- Fort Worth 2004, pet. denied); Cont'l Cas. Co. v.
Davilla, 139 S.W.3d 374, 379 (Tex.App. — Fort Worth 2004, pet.
denied); see also Jonv. Stanley, 150 S.W.3d 244, 248 (Tex.App. --
Texarkana 2004, no pet.J.
Lynd Co., at 686.
III.
It is beyond argument that on the facts of this case and
the controlling law as set forth in I_n r_e Lynd Co. , supra, the
lower court's plenary power ran from the day Appellant received
notice of judgment. The motion to vacate judgment tracks the
requirements of Rule 306a(5), Tex .R .C,iv .P., which invoked the
trial court's jurisdiction for the limited purpose of holding
an evidentiary hearing to determine the date on which the
Appellant first received notice or acquired knowledge of the
judgment.
Appellant has already filed a motion for nunc pro tunc
corrected order seeking an evidentiary hearing. He has already
filed a demand prior to mandamus. He has also filed an
amended motion for nunc pro tunc order and will file a petition
for mandamus with this court within a few days.
IV.
Appellant submits that this Court, probably because it
was not aware that the motion to vacate judgment was before the
Court in the record on appeal, improperly dismissed this appeal
for lack of jurisdiction. Appellant submits that this Court has
jurisdiction under Rule 306a, supra, until an evidentiary hearing
is held to determine the date notice of judgment was received by
Appellant.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that his
motion be granted and that this appeal be reinstated.
Respectfully submitted,
anEnriqu^z
7122 <-~
?DCJ-Michael
2664 FM 2054
Tennessee Colony, TX 75886
Certificate of Service
The foregoing motion was served by placing same in the United States
mail, postage prepaid, on October 8, 2015, addressed to Ken Paxton, Attorney
General of Texas, P. 0. Box 12548, Capitol Station, Austin, TX 78711.
Sst^f
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