Kenneth R. Jacob and Blair Jacob v. International Cellulose Corporation, Inc. ( 2006 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-06-00210-CV

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Kenneth R. Jacob and Blair Jacob, Appellants

v.

International Cellulose Corporation, Inc., Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. D-1-GN-06-000904, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

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O R D E R  

Appellee Neal Wood, individually and d/b/a Neal Wood Electric ("Wood") has filed a motion to dismiss for lack of jurisdiction on the ground that appellants failed to comply with the requirements of Texas Rule of Civil Procedure 306a when requesting additional time to file their notice of appeal from the trial court's grant of summary judgment in favor of Wood. Because we agree that appellants failed to comply with the requirements of the rule, we grant appellee's motion and dismiss that portion of the appeal as to Wood for lack of jurisdiction.

When a party or his attorney does not receive timely notice of the trial court's judgment, rule 306a allows a party to seek an extension of the post-judgment deadlines. Tex. R. Civ. P. 306a(4)-(5). The trial court signed a final judgment as to appellee Wood, defendant below, on April 13, 2006. The record reflects that counsel for appellants did not receive notice of the judgment until May 9, 2006. Accordingly, appellants filed a motion to extent post-judgment deadlines as allowed under paragraphs 4 and 5 of rule 306a.

Rule 306a(4) provides an exception to the post-judgment deadlines when a party establishes that neither he nor his attorney received notice, or acquired actual knowledge, of the order within 20 days after the judgment or other appealable order was signed. To establish that the exception in paragraph 4 applies, rule 306a(5) requires a party to demonstrate in the trial court the date on which either the party or his attorney received notice--or acquired actual notice--of the trial court's judgment. Tex. R. Civ. P. 306a(5); see Memorial Hosp. of Galveston County v. Gillis, 741 S.W.2d 364, 365-66 (Tex. 1987); Grondona v. Sutton, 991 S.W.2d 90, 92 (Tex. App.--Austin 1998, pet. denied ) (per curiam).

In their motion to extend post-judgment deadlines, appellants included an affidavit of counsel regarding when counsel received notice of the judgment, but appellants did not submit evidence on when they personally received notice or acquired actual knowledge of the judgment.

This situation is controlled by our decision in Grondona v. Sutton. In Grondona, we granted appellee's motion to dismiss for lack of jurisdiction because appellant failed to present evidence of when their attorney received notice. Grondona, 991 S.W.2d at 92. We held that appellant's failure to comply with rule 306a(5) deprived the trial court of jurisdiction to determine the date of notice. Id. Because appellants in this case failed to offer evidence that they did not personally receive timely notice or acquire actual knowledge of the trial court's judgment in favor of Wood, they did not make a prima facie case of late notice as required under rule 306a. Thus, appellants failed to invoke the trial court's jurisdiction to determine the date of notice, and we are compelled by our holding in Grondona to grant Wood's motion to dismiss for lack of jurisdiction. See id. ("where movant fails to establish applicability of exception in the required manner, the trial court lacks jurisdiction to determine date of notice and any order doing so is void").

It is so ordered November 22, 2006.

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Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: November 22, 2006