Emilio Lopez v. CLEAR LAKE REGIONAL MEDICAL CENTER, CIICA CLEAR LAKE, L.P. D/B/A CLEAR LAKE REGIONAL MEDICAL CENTER, GABRIEL RODRIGUEZ, M.D., TEXAS ONCOLOGY P.A. D/B/A TEXAS UROLOGY SPECIALISTS, TEXAS ONCOLOGY P.A. AND TEXAS UROLOGY SPECIALISTS-WEBSTER

Order filed May 30, 2019
In The
Fourteenth Court of Appeals
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NO. 14-19-00315-CV
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EMILIO LOPEZ, Appellant
V.
CLEAR LAKE REGIONAL MEDICAL CENTER, CIICA CLEAR LAKE,
L.P. D/B/A CLEAR LAKE REGIONAL MEDICAL CENTER,
GABRIEL RODRIGUEZ, M.D., TEXAS ONCOLOGY P.A. D/B/A
TEXAS UROLOGY SPECIALISTS, TEXAS ONCOLOGY P.A. AND
TEXAS UROLOGY SPECIALISTS-WEBSTER, Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2016-15836
ABATEMENT ORDER
This appeal is from a judgment signed November 26, 2018. The clerk’s
record was filed April 26, 2019. The record reflects the notice of appeal was filed
April 9, 2019. In response to a notice from the court explaining that the notice of
appeal appeared untimely, appellant alleges he did not receive notice of the
November 26, 2018 judgment until January 2, 2019. When a party contends he did
not receive official notice of a judgment from the clerk or otherwise obtain actual
knowledge of the judgment within twenty days of the date the judgment was
signed, the party may request an order establishing that the time period for appeal
begins on the date the party or his attorney received the clerk’s notice or acquired
actual knowledge of the judgment, whichever occurred first. See Tex. R. Civ. P.
306a(4). In no event will the new time period begin more than ninety days after the
date the original judgment was signed. Id. To establish application of rule 306a(4),
a party adversely affected must 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. See Tex. R. Civ. P. 306a(5).
Our clerk’s record shows that appellant filed a motion seeking to establish
application of rule 306a(4). The motion is supported by an affidavit from
appellant’s counsel stating that he did not receive notice of the judgment by mail
and instead discovered that the judgment had been signed by looking at the district
clerk’s website on January 2, 2019. January 2, 2019 is more than twenty days after
November 26, 2018. We also have a reporters’ record from a hearing held
February 21, 2019, at which the parties argued the merits of appellant’s request for
rule 306a(4) relief. At the conclusion of the hearing, the trial court indicated that it
found that appellant’s counsel first received actual knowledge of the judgment on
January 2, 2019. The record, however, does not contain a signed order to that
effect. A trial court granting rule 306a(4) relief is required to sign a written order
that finds the date on which the party or the party’s attorney first either received
notice or acquired actual knowledge that the judgment was signed. See Tex. R.
App. P. 4.2(c); see also LDF Construction, Inc. v. Texas Friends of Chabad
Lubavitch, Inc., 459 S.W.3d 720, 724 (Tex. App.—Houston [14th Dist.] 2015, no
pet.) (the date must be established by competent proof and included in a written
order signed by the trial judge).
Without a signed order under rule 4.2(c), we are unable to determine
whether appellant’s notice of appeal is timely. If the trial court finds that January 2,
2019, is the date when appellant or appellant’s counsel first either received notice
or acquired actual knowledge that the judgment was signed, then a notice of
appeal, or a motion extending the time to file a notice of appeal, was due on or
before February 1, 2019. See Tex. R. App. P. 26.1; Tex. R. Civ. P. 329b(a). The
clerk’s record reflects that appellant tendered a motion for new trial for filing on
February 1, 2019. If the motion for new trial was timely, then appellant’s notice of
appeal was due April 2, 2019. The notice of appeal was filed April 9, 2019, within
the fifteen-day time period during which we imply a motion to extend time. See
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
Accordingly, we order the case abated and remanded to the trial court for
entry of a written order finding the date when appellant first either received notice
or acquired actual knowledge that the judgment was signed. A supplemental
clerk’s record containing the trial court’s order shall be filed with the clerk of this
court within 30 days of the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the
supplemental clerk’s record is filed in this Court. The Court will also consider an
appropriate motion to reinstate the appeal filed by either party, or the Court may
reinstate the appeal on its own motion. It is the responsibility of any party seeking
reinstatement to request a hearing date from the trial court and to schedule a
hearing, if a hearing is required, in compliance with this Court’s order. If the
parties do not request a hearing, the court coordinator of the trial court shall set a
hearing date and notify the parties of such date.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Hassan.