PCA Health Plan of Texas, Inc. v. Marta McInnis ( 1994 )

PCA Health Plan of Tex., Inc. v. McInnis IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-609-CV





PCA HEALTH PLAN OF TEXAS, INC.,

APPELLANT

vs.





MARTA McINNIS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. 216,201, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

PER CURIAM

Appellee Marta McInnis has filed a motion to dismiss this appeal because the transcript was not filed timely. Tex. R. App. P. 60(a)(1). The transcript was tendered for filing with the Clerk of this Court November 18, 1993. Because a request for findings of fact and conclusions of law was filed, the transcript was due by September 30, 1993, one hundred twenty days after the judgment was signed. Tex. R. App. P. 54(a). A motion for extension of time for late filing the transcript was due by October 15, 1993, fifteen days after the last date for filing the record. Tex. R. App. P. 54(c); see B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982). Appellant PCA Health Plan of Texas, Inc.'s motion for extension of time for late filing the transcript was filed on November 18, 1993.

PCA claims that the trial court signed the final judgment on July 8, 1993, the date the judgment was stamped "filed" by the county clerk of Travis County, instead of June 2, 1993, the date the judgment recites it was signed. If the judgment was signed on July 8, 1993, PCA's motion for extension of time for late filing the transcript would be timely. In the alternative, PCA claims it had no notice of the June 2, 1993, judgment. See Tex. R. Civ. P. 306a(4); Tex. R. App. P. 5(b)(4). We reject both of PCA's arguments.

PCA judicially admits in both its certificate of cash deposit filed on June 22, 1993, and its notice of appeal filed on June 18, 1993, that the trial court's judgment was "entered" on June 2, 1993. PCA also admits in its December 3, 1993, brief that its counsel received a facsimile transmission on June 28, 1993, of a judgment with the notation "/s/ Judge Phillips." After receiving this document, PCA claims its counsel contacted counsel for McInnis, but did nothing further to verify the date the county-court judgment was signed. PCA alleges it first received a copy of the final judgment bearing the judge's original signature when its counsel inspected the transcript.

No credible evidence exists to show that the judgment was signed on any date other than June 2, 1993. The July 8, 1993, file stamp is not probative of the date the county court signed the judgment because proposed judgments need not be filed with the clerk. Furthermore, PCA has not complied with Texas Rule of Civil Procedure 306a(5) and Texas Rule of Appellate Procedure 5(b)(5) by obtaining a finding from the trial court regarding the date PCA first either received a notice of the judgment or acquired actual knowledge. See Conaway v. Lopez, 843 S.W.2d 732, 733-34 (Tex. App.--Austin 1992, no writ).

McInnis' motion to dismiss the appeal is meritorious and we grant it. Tex. R. App. P. 54(a). PCA's motion for extension of time for late filing the transcript is overruled.

The appeal is dismissed.

Before Justices Powers, Jones and Kidd

Appeal Dismissed

Filed: February 2, 1994

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