Apparajan Ganesan v. David Forrest and Claudia Reeves ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00361-CV

Apparajan Ganesan,

                                                                      Appellant

 v.

David Forrest and

Claudia Reeves,

                                                                      Appellees

From the 18th District Court

Johnson County, Texas

Trial Court No. C200400488

MEMORANDUM  Opinion

          Apparajan Ganesan filed a notice of appeal from an order of the trial court dismissing his civil suit for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code.  The trial court signed the dismissal on March 23, 2005, and Ganesan’s notice of appeal was filed on May 26, 2005.

          We sent Ganesan a letter questioning our jurisdiction of the case because the notice of appeal appeared to be untimely filed.  Ganesan responded that he did not receive the notice required by Rule 306a of the Texas Rules of Civil Procedure that the dismissal judgment had been signed and that he received actual notice of the judgment on May 23, 2005.  He also responded that he promptly filed a motion to reinstate under the time table as extended by Rule 306a(4).  Ganesan also characterized his motion to reinstate, “in the alternate,” as a notice of appeal.  This notice of appeal will be timely only if the time to file the notice of appeal is extended by compliance with Rule 306a(5).  Tex. R. Civ. P. 306a(4) & (5); Tex. R. App. P. 4.2(a) & (b).

          On the record before us, Ganesan is not entitled to the benefits of Rule 306a(4) because he did not comply with Rule 306a(5).  Tex. R. Civ. P. 306a(4) & (5); Tex. R. App. P. 4.2(a) & (b).  Subsection (5) specifically provides,

In order to established the application of paragraph (4) of this rule, the party adversely affected is required 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 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). 

          Rule 306a places the burden to establish its applicability on the party seeking to invoke the rule’s benefits.  See City of Loredo v. Schuble, 943 S.W.2d 124, 126 (Tex. App.—San Antonio 1997, orig. proceeding).  To extend the appellate timetable, the trial court must sign an order finding the date when the party or his attorney first either received notice or acquired actual knowledge the judgment was signed.  Tex. R. App. P. 4.2(c).  To invoke the trial court's power to so act, the party must file a sworn motion offering prima facie evidence of when the party or his attorney first received notice or actual knowledge of the signing of the judgment.  See In re Jones, 974 S.W.2d 766, 768 (Tex. App.—San Antonio 1998, orig. proceeding); Schuble, 943 S.W.2d at 126; In the Interest of Simpson, 932 S.W.2d 674, 678 (Tex. App.—Amarillo 1996, no writ).  Tex. R. App. P. 4.2(b); Tex. R. Civ. P. 306a(5). 

          A motion filed pursuant to Rule 306a is sufficient only if it is accompanied by a verification or affidavit stating "directly and unequivocally that the facts alleged are true and within the personal knowledge of the affiant."  Schuble, 943 S.W.2d at 126 n.2; Simpson, 932 S.W.2d at 677.  An unsworn motion is insufficient to invoke the trial court’s jurisdiction to extend the date on which the appellate timetable begins to run.  See Schuble, 943 S.W.2d at 126; Simpson, 932 S.W.2d at 677-679.  See also Barnes v. Tex. Dep't of Crim. Justice-Institutional Div., No. 14-02-00801-CV, 2002 Tex. App. LEXIS 6925 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Quezada v. Hinkle, No. 04-99-00824-CV, 1999 Tex. App. LEXIS 8922 (Tex. App.—San Antonio 1999, pet. denied).

          There is no motion by which Ganesan sought a determination of the date he received notice of the judgment.  And further, what documents we have in the record, such as the motion to reinstate, are not sworn to so as to provide proof of the date Ganesan learned of the judgment against him.  Thus, the appellate timetable has not been extended, and Ganesan’s notice of appeal is untimely.

          Accordingly, we have no jurisdiction of this appeal.

          Ganesan’s appeal is dismissed.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed January 18, 2006

[CV06]

60;                                                                                     

      Terry Huntsberry, a prison inmate, brought a pro se action in forma pauperis against Carolyn Pollard, the District Clerk of Coryell County. Huntsberry alleged that the clerk negligently failed to timely forward a transcript to this court in Huntsberry's appeal from a judgment of dismissal in a different case. Before the defendant was served with process, the court dismissed the cause as being "frivolous and/or malicious."

      In a single point of error, Huntsberry contends that the trial court abused its discretion when it dismissed the complaint without considering the facts within the petition. The judgment of dismissal will be affirmed. The court specified that Huntsberry's petition was dismissed because "the action's realistic chance of ultimate success [was] slight."

      Section 13.001 of the Texas Civil Practice and Remedies Code provides that a court in which an affidavit of inability to pay has been filed may dismiss an action as frivolous or malicious if the action's realistic chance of ultimate success is slight. In evaluating the petition, the court could have considered that the named defendant was not liable because it was Huntsberry, and not the district clerk, who had the ultimate burden to forward the transcript to this court. Although rule 51(c) of the Texas Rules of Appellate Procedure imposes a duty on the clerk to "prepare . . . and immediately transmit the transcript to the appellate court," the primary responsibility to place the record before this court, according to rule 50(d), remains with the appellant. Because Huntsberry failed to request from this court an extension of time in which to file the transcript in the original appeal, it was his failure that rendered the filing of the transcript untimely. Thus, we conclude that the court did not abuse its discretion when it found that the action's realistic chance of ultimate success was slight and dismissed Huntsberry's petition against the district clerk.

      Recognizing that the Texas Supreme Court has declined to "imply approval of a dismissal of an action based solely upon section 13.001(b)(1)," and that our duty is to affirm the dismissal if it was proper under any legal theory, we conclude that the dismissal of Huntsberry's claim under section 13.002(b)(2) of the Texas Civil Practice and Remedies Code would have been justified because the claim had no arguable basis in law or in fact. In Nix v. Fraze, the Dallas Court of Appeals affirmed a summary judgment in favor of a district clerk who was sued for negligence in failing to timely forward the transcript to that court in a different case. Because the court in this case could have concluded that Huntsberry's claim had no arguable basis in law or in fact, we overrule his single point of error.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed April 22, 1992

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