in the Interest of A.J.G, S.S.G., and R.M.G. ( 2015 )

DISMISSED; Opinion Filed April 7, 2015
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-14-01469-CV
IN THE INTEREST OF A.J.G, S.S.G., AND R.M.G.
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-52068-2013
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Justice Stoddart
Appellant appeals the trial court’s final decree of divorce. The trial court signed its final
decree of divorce in this case on August 14, 2014. Appellant requested findings of fact and
conclusions of law and filed a motion for new trial on September 26, 2014 under the prison
mailbox rule, 1 forty-three days after the judgment was signed. Appellant filed his notice of
appeal on November 10, 2014, eighty-eight days after the judgment was signed, also under the
prison mailbox rule.
1
A pro se prisoner is deemed to have filed his pleadings at the time they are delivered to prison authorities for forwarding to the court clerk.
Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007); Warner v. Glass, 135 S.W.3d 681, 684–85 (Tex. 2004).
By letter dated December 18, 2014, the Court questioned its jurisdiction over this appeal
because it appeared appellant’s notice of appeal was not timely filed. Appellant responded that
he had not received notice of the trial court’s judgment until he received a letter from opposing
counsel, dated September 11, 2014, which he received on or about September 17, 2014. By
letter dated January 12, 2015, the Court advised appellant that in order to consider whether his
appeal was timely, the Court must have in the appellate record a written order from the trial court
on a motion filed pursuant to rule 306a of the Texas Rules of Civil Procedure establishing the
date on which he or his attorney either first received notice of the judgment or acquired actual
knowledge of the judgment. TEX. R. APP. P. 4.2. Appellant has now provided the Court with a
copy of his motion, filed in the trial court under the prison mailbox rule on February 2, 2015, in
which he seeks a determination of the date he or his attorney acquired notice or knowledge of the
judgment. We conclude relator’s motion was not timely filed. Consequently, we lack
jurisdiction over the appeal and must dismiss the appeal.
Absent a timely filed motion for a new trial, or a motion to vacate, modify, correct or
reform a judgment, the trial court loses its plenary power over its judgment thirty days after the
judgment is signed. TEX. R. CIV. P. 329b(d). An exception to the 30 day rule exists when a
party fails to receive notice within 20 days of the signing of the judgment as required by rule
306a(3). 2 In such a situation, the appellate timetables will begin to run from the date the party or
the party’s attorney receives notice from the clerk of the court or acquires actual notice of the
judgment. TEX. R. CIV. P. 306a(4). In “no event,” however, may the running of the timetables
begin more than 90 days after the signing of the original judgment. Id.
2
While rule 306a(3) of the rules of civil procedure requires the clerk of the court to give notice of final judgments and other appealable
orders by first class mail to all parties or their attorneys of record, the failure of the clerk to give notice does not impair the finality of the
judgment or otherwise render it void. See Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex. 1974).
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The requirements of rule 306(a)(4) are jurisdictional. Mem'l Hosp. of Galveston County
v. Gillis, 741 S.W.2d 364, 366 (Tex. 1987) (“Since Gillis did not establish the applicability of
Rule 306a(4) in the trial court in the manner prescribed by the rule, the trial court was without
jurisdiction to reinstate her cause upon a motion filed forty days after dismissal.”). A sworn
motion that establishes a prima facie case that the party lacked notice within the period
established by rule 306a(4) reinvokes a trial court's 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.” In re Lynd Co., 195 S.W.3d 682, 684
n.2 (Tex. 2006) (orig. proceeding); Florance v. State, 352 S.W.3d 867, 872 (Tex. App.—Dallas
2011, no pet.). Unless a party establishes, in the manner prescribed by Rule 306a(5), on sworn
motion, that he had no notice or knowledge of the judgment within the period covered by rule
306a, the general rule prevails: a trial court's plenary power to grant a new trial or to vacate,
modify, correct or reform a judgment expires 30 days after entry of judgment. Gillis, 741 S.W.2d
at 365.
The rules do not set a deadline for filing a motion under Rule 306a(5) and none can be
imposed by decision other than the deadline of the expiration of the trial court’s jurisdiction.
John v. Marshall Health Services, Inc., 58 S.W.3d 738, 741 (Tex. 2001). Thus, a rule 306a
motion must be filed before the trial court's plenary power—measured from the date of notice
established under Rule 306a(4)—expires. In re Lynd Co., 195 S.W.3d at 685.
Here the trial court’s judgment was signed on August 14, 2014. Appellant alleges he
received notice of the judgment on September 17, 2014 – more than twenty days after the
signing of the judgment. Thus, for purposes of determining whether appellant’s rule 306a
motion is timely, our calculations of post-trial and appellate deadlines begin from that date.
Appellant filed a motion for new trial on September 26, 2014 that would have been timely under
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the extended deadlines if appellant properly invoked rule 306a. Although the motion for new
trial would have been overruled by operation of law on December 1, 2014 under the extended
deadlines if appellant properly invoked rule 306a, see TEX. R. CIV. P. 329b(c) (motion for new
trial is overruled by operation of law seventy-five days after judgment signed), the trial court’s
plenary power to rule on a 306a motion would extend to 105 days of the date appellant or his
attorney first received notice of the signing of the judgment. See TEX. R. CIV. P. 329b (“If a
motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal
has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform
the judgment until thirty days after all such timely-filed motions are overruled, either by a
written and signed order or by operation of law, whichever occurs first.”).
Appellant filed his rule 306a motion on February 2, 2015. The last day for him to obtain
a ruling on a 306a motion was December 31, 2014 because, based on the date appellant contends
he received notice of the judgment, the trial court’s plenary power to act on a rule 306a motion
expired on that date. Because appellant’s rule 306a motion was not timely filed, he failed to
invoke the trial court’s jurisdiction to determine the date of notice of the judgment. As a result,
he is not entitled to the extension permitted by rule 306a. See Grondoma v. Sutton, 991 S.W.2d
90, 93 (Tex. App.—Austin 1998, pet. denied). Appellant’s notice of appeal, filed eighty-eight
days after the rendition of the trial court’s judgment, is thus untimely because, without resort to
rule his rule 306a motion, which was untimely filed in the trial court, his motion for new trial
was untimely and did not operate to extend the appellate deadlines. TEX. R. APP. P. 26.1(a).
Without a timely filed notice of appeal we lack jurisdiction. TEX. R. APP. P. 25.1(b).
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Accordingly, we dismiss the appeal for lack of jurisdiction.
/Craig Stoddart
CRAIG STODDART
JUSTICE
141469F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.J.G, S.S.G., AND On Appeal from the 380th Judicial District
R.M.G. Court, Collin County, Texas
Trial Court Cause No. 380-52068-2013.
No. 05-14-01469-CV Opinion delivered by Justice Stoddart. Chief
Justice Wright and Justice Lang-Miers
participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
It is ORDERED that appellee, OPRENSIE JUBOL, recover her costs of this appeal from
appellant STEVEN LEE GORDON.
Judgment entered this 7th day of April, 2015.
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