J & R Cochran Family Trust, Jeremy W. Presley, Trustee v. Sunshine Corners, Inc. ( 2007 )

Order filed May 3, 2007

Order filed May 3, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00352-CV

                                                     __________

     J & R COCHRAN FAMILY TRUST, JEREMY W. PRESLEY, TRUSTEE,

                                                       Appellant

                                                             V.

                                SUNSHINE CORNERS, INC., Appellee

                                          On Appeal from the 32nd District Court

                                                          Fisher County, Texas

                                                     Trial Court Cause No. 5914

                                                                     O R D E R

Our former opinion and judgment dated March 1, 2007, are withdrawn, and our opinion and judgment dated May 3, 2007, are substituted therefor.  The motion for rehearing filed by J & R Cochran Family Trust, Jeremy W. Presley, Trustee, is overruled.

TERRY McCALL

JUSTICE

May 3, 2007

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

Opinion filed May 3, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00352-CV

                                                     __________

J & R COCHRAN FAMILY TRUST, JEREMY W. PRESLEY, TRUSTEE,

Appellant

V.

SUNSHINE CORNERS, INC., Appellee

On Appeal from the 32nd District Court

Fisher County, Texas

Trial Court Cause No. 5914

M E M O R A N D U M O P I N I O N

This is an appeal from a default judgment.  We dismiss the appeal for want of jurisdiction.

                                                               Background Facts

The trial court entered the default judgment against appellant, J & R Cochran Family Trust, Jeremy W. Presley, Trustee, on September 20, 2006.  Appellant did not file either a notice of appeal or a motion that would have extended the deadline for filing a notice of appeal within thirty days after the judgment was signed.  See Tex. R. App. P. 26.1.  Appellant filed an unsworn motion for new trial on November 20, 2006, wherein it sought to extend the postjudgment deadlines based upon the allegation that it did not have timely notice of the default judgment.  See Tex. R. Civ. P. 306a; Tex. R. App. P. 4.2.   Appellant alleged in the initial motion for new trial that it did not have notice of the default judgment until October 25, 2006. Appellant subsequently filed a sworn motion for new trial on November 29, 2006, in the form of a Asupplemental@ motion for new trial.

The trial court conducted a hearing on appellant=s motion for new trial on December 14, 2006.  The trial court found that appellant had notice of the default judgment on or before October 20, 2006, thereby making appellant=s motion for new trial initially filed on November 20, 2006, untimely.  The trial court denied appellant=s motion for new trial in a written order entered on December 15, 2006. Appellant filed its notice of appeal on December 19, 2006.

Upon the receipt of the clerk=s record in this cause, the clerk of this court wrote the parties advising them that it appeared that appellant=s motion for new trial was not timely filed and that, therefore, the notice of appeal was not timely filed.  The clerk=s letter noted the trial court=s finding that appellant had notice of the default judgment on or before October 20, 2006.  The clerk=s letter directed appellant to provide the court with a reasonable explanation for continuing the appeal.  The letter concluded with a notification that the appeal would be dismissed if appellant did not provide the court with a reasonable explanation.

Appellant asserted in its written response to the clerk=s letter that it intended to appeal the trial court=s determination of the date that it received notice of the default judgment.  It asserted in the response that the evidence offered at the hearing on the motion for new trial established that it did not have notice of the default judgment until October 25, 2006.  Even if appellant=s contention that it did not have notice of the default judgment until October 25, 2006, is correct, we conclude that its motion for new trial seeking an extension pursuant to Rule 306a(5) was untimely filed.

                                                                        Analysis

The supreme court recently addressed the requirements of Rule 306a(5) in In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding):

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.  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.  The motion must be filed before the trial court=s plenary power‑‑measured from the date of notice established under Rule 306a(4)-- expires.  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 (citations omitted).

In summary, a party seeking to extend postjudgment deadlines under Rule 306a(5) must file a sworn motion to invoke the trial court=s otherwise-expired jurisdiction within thirty days after the date that it alleges that it obtained notice of the judgment.  See Tex. R. Civ. P. 329b(d). 

Appellant alleged in its initial motion for new trial filed on November 20, 2006, that it did not obtain notice of the default judgment until October 25, 2006.  While appellant filed the initial motion for new trial within thirty days of October 25, 2006, the motion was unsworn. Appellant=s unverified motion for new trial did not reinvoke the trial court=s jurisdiction to consider its claim of delayed notice.  See Carrera v. Marsh, 847 S.W.2d 337, 340-42 (Tex. App.CEl Paso 1993, no writ).  Since appellant did not file a sworn motion within thirty days after October 25, 2006, the trial court would not have had jurisdiction to extend the postjudgment deadlines even if it had found that appellant did not obtain notice of the default judgment until October 25, 2006.

Appellant has not invoked the appellate jurisdiction of this court by the timely filing of a notice of appeal.  Tex. R. App. P. 26.1; see Tex. R. Civ. P. 306a, 329b.

                                                 This Court=s Ruling

The appeal is dismissed for want of jurisdiction.

TERRY McCALL

JUSTICE

May 3, 2007

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.