Bexar Appraisal District v. Lucifer Lighting Company ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00509-CV
BEXAR APPRAISAL DISTRICT,
Appellant
v.
LUCIFER LIGHTING COMPANY,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2021-CI-09696
Honorable Norma Gonzales, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: January 25, 2023
DISMISSED FOR LACK OF JURISDICTION
Appellant Bexar Appraisal District (“the District”) appeals the trial court’s order denying
its plea to the jurisdiction. The District asserts the trial court erred because appellee Lucifer
Lighting Company failed to exhaust its administrative remedies. Because the District’s notice of
appeal is untimely, we dismiss this appeal for lack of jurisdiction.
BACKGROUND
In November 2020, Lucifer Lighting moved for a late correction of its appraisal rolls,
specifically arguing the appraisal rolls improperly included personal property designated as “small
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tools & dies” and “dies & tools” for the past five years. The Bexar Appraisal Review Board (“the
Board”) denied Lucifer Lighting’s request, and Lucifer Lighting filed suit against the District and
the Board, appealing the Board’s denial order. The District filed a plea to the jurisdiction arguing
Lucifer failed to exhaust its administrative remedies. The trial court held a hearing on the District’s
plea on September 15, 2021, and it denied the District’s plea in an order signed on October 8,
2021.
The District filed a notice of interlocutory appeal and verified Rule 306a motion seeking
to extend the post-judgment deadlines on November 15, 2021. 1 When the clerk’s record was filed,
it did not include an order granting the District’s Rule 306a motion. As a result, the notice of
appeal appeared untimely, and we ordered the District to show cause why this appeal should not
be dismissed for lack of jurisdiction. See TEX. R. APP. P. 26.1(b) (requiring in accelerated appeal,
party must file notice of appeal within twenty days after order is signed). In response, the District
filed a “Motion to Show Cause,” which it subsequently amended, and we received a supplemental
clerk’s record showing the trial court denied the District’s Rule 306a motion. We ultimately
carried the District’s “First Amended Motion to Show Cause” with the case.
JURISDICTION
We begin by considering the District’s “First Amended Motion to Show Cause,” which we
construe as a response to our show cause order, because it concerns our jurisdiction to review this
case on appeal. In its first amended motion, the District argues it timely filed its notice of appeal,
and the trial court abused its discretion by denying its verified Rule 306a motion to extend the
post-judgment deadlines. According to the District, the affidavit attached to its Rule 306a motion
1
The Board also filed a notice of interlocutory appeal challenging the trial court’s order denying the District’s plea to
the jurisdiction, and this court dismissed the Board’s appeal in our opinion dated March 30, 2022, styled Bexar
Appraisal Review Board v. Lucifer Lighting Company, Cause No. 04-21-00556-CV.
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established a prima facie case it did not acquire actual knowledge of the trial court’s October 8,
2021 order until November 12, 2021, and therefore, it timely filed its notice of appeal on November
15, 2021.
In response, Lucifer Lighting argues the District’s notice of appeal is untimely, and the
trial court properly denied the District’s Rule 306a motion to extend the post-judgment deadlines
because the affidavit attached to the Rule 306a motion was inadequate. According to Lucifer
Lighting, the affidavit did not establish when the District acquired actual knowledge of the trial
court’s signing of the October 8, 2021 order; at most, the affidavit only established when one of
the five attorneys representing the District received a copy of the order.
“The time for filing a notice of appeal is jurisdictional in this court, and absent a timely
filed notice of appeal or timely filed motion for extension, we must dismiss the appeal.”
Korczynski v. Cowboy Up Ranch Furniture, LLC, 651 S.W.3d 602, 604 (Tex. App.—Waco 2022,
no pet.) (citing TEX. R. APP. P. 25.1(b), 26.1, 26.3; Verburgt v. Dorner, 959 S.W.3d 615, 617 (Tex.
1997)). Generally, in an accelerated appeal, a notice of appeal must be filed within twenty days
after the judgment or order being appealed is signed. TEX. R. APP. P. 26.1(b). However, when a
party or his attorney has neither (1) received timely notice from the court clerk of the judgment or
order being appealed nor (2) acquired actual knowledge of the signing of the judgment or order,
then “the post-judgment procedural timetables run from the date that the party or his attorney either
received the notice . . . or acquired actual knowledge of the signing of the judgment, whichever
occurred first.” Korczynski, 651 S.W.3d at 604 (citing TEX. R. APP. P. 4.2(a), TEX. R. CIV. P.
306a(4)).
To modify the post-judgment procedural timetables, Texas Rule of Civil Procedure 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
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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); see In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig.
proceeding) (explaining Rule 306a(5) requires party alleging late notice of judgment to file sworn
motion establishing date party first learned of judgment). “The sworn motion 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.” Lynd,
195 S.W.3d at 685; see Korczynski, 651 S.W.3d at 605. “Compliance with Rule 306a is a
jurisdictional prerequisite.” Korczynski, 651 S.W.3d at 605 (citing Mem’l Hosp. of Galveston
Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam)).
Here, the trial court signed the order denying the District’s plea to the jurisdiction on
October 8, 2021, and the District filed its notice of appeal and Rule 306a motion on November 15,
2021. In its Rule 306a motion, the District alleged its counsel did not first acquire knowledge of
the trial court’s October 8, 2021 order until November 12, 2021 even though it had “periodically
checked in with the [trial] court.” The District’s counsel further explained on October 13, 2021,
it “filed a letter requesting a signed copy of the order,” and the trial court clerk returned the filing,
noting an order had not been “entered.” The District also stated on October 15, 2021, its counsel
corresponded with Lucifer Lighting’s counsel to determine whether an order had been signed by
the trial court, and Lucifer Lighting’s counsel stated it had not received a copy.
To support its Rule 306a motion, the District attached an affidavit from one of its attorneys.
The attorney attested he represented the District and had “periodically instructed [his] support staff
to . . . inquire [with the court] whether a signed order had been entered” since the plea to the
jurisdiction hearing. He further attested the first day he or anyone on his staff received a copy of
the trial court’s order was on November 12, 2021. The attorney affidavit included as exhibits
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counsel’s email correspondence to the trial court clerk and opposing counsel inquiring about the
signed order.
However, there is nothing in the District’s Rule 306a motion and affidavit negating the
possibility its other attorneys acquired actual knowledge of the signing of the October 8, 2021
order within twenty days after it was signed. See id. at 606 (holding plaintiff failed to negate
possibility other attorneys acquired actual knowledge of signing of order when Rule 306a motion
failed to include affidavit from all four attorneys representing plaintiff); City of Laredo v. Schuble,
943 S.W.2d 124, 126 (Tex. App.—San Antonio 1997, orig. proceeding) (holding affidavit from
one member of plaintiff’s legal team attesting did not know final judgment had been entered was
insufficient to show plaintiff did not receive either written notice or acquire actual knowledge of
entry of judgment). The record shows at the time the District filed its Rule 306a motion, it was
represented by five attorneys from the same law firm, but only one attorney attested when he or
anyone on his staff received a copy of the October 8, 2021 order. “Notice and actual knowledge
must be negated by all such parties and counsel in order to establish a prima facie showing that
notice was untimely.” Schuble, 943 S.W.2d at 126.
Accordingly, because the District’s Rule 306a motion and affidavit fail to establish a prima
facie case indicating the District lacked timely notice of the October 8, 2021 order, the District
was not entitled to the extension permitted by Rule 306a. See Korczynski, 651 S.W.3d at 606;
Schuble, 943 S.W.2d at 126. Therefore, the District’s notice of appeal, filed thirty-eight days after
the signing of the trial court’s order, is untimely, and we must dismiss the appeal for lack of
jurisdiction.
Luz Elena D. Chapa, Justice
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