Guaranty Federal Savings Bank v. Donald R. Dearing and Wife, Lula Mae Dearing, and James K. Presnal

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





ON MOTION FOR REHEARING





NO. 3-91-467-CV





GUARANTY FEDERAL SAVINGS BANK,

APPELLANT

vs.





DONALD R. DEARING AND WIFE, LULA MAE DEARING, AND JAMES K. PRESNAL,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. 471,245, HONORABLE JOE B. DIBRELL, JUDGE

PER CURIAM

Appellant Guaranty Federal Savings Bank has filed a motion for rehearing asking this Court to reconsider its opinion and judgment of November 20, 1991, dismissing the appeal for want of jurisdiction. We previously granted Guaranty Federal leave to file a transcript and statement of facts in support of its motion. We will overrule the motion for rehearing.

The district court signed a summary judgment in favor appellees Donald and Lula Mae Dearing and James K. Presnal on June 26, 1991. Guaranty Federal timely filed a motion for rehearing and new trial on July 25, 1991. Tex. R. Civ. P. Ann. 329b(a) (Supp. 1991). Nevertheless, Guaranty Federal filed a motion to amend judgment date. See Tex. R. Civ. P. Ann. 306a(4),(5) (Supp. 1991). After a hearing, the trial court determined that

. . . the motion is meritorious and should be granted in part.

IT IS THEREFORE, ORDERED that the date that shall determine the beginning of the period prescribed by the Texas Rules of Civil Procedure for the Court's plenary power to act and for other various matters described in Rule 306(a)(1) shall be and the same is hereby ordered to be July 10, 1991.

(Emphasis added). Guaranty Federal then counted the time within which to perfect its appeal from July 10th and not June 26th, the date of signing of the judgment. Because July 10th was not more than twenty days from the day judgment was signed, we concluded that Guaranty Federal should have complied with Tex. R. App. P. Ann. 41(a) (Pamph. 1991) and dismissed the appeal for want of jurisdiction. See Rule 306a(4),(5); Tex. R. App. P. Ann. 5(b) (Pamph. 1991); Memorial Hosp. v. Gillis, 741 S.W.2d 364 (Tex. 1987).

After we issued our opinion and judgment, Guaranty Federal filed, in the trial court, a motion regarding no notice of judgment. Guaranty Federal asked that court to find that: (1) Guaranty Federal first received notice of judgment on July 10, 1991; (2) the amended judgment date was based upon counsels' agreement to facilitate a hearing on the motion for rehearing filed in the trial court; ⁽¹⁾ and (3) "the beginning of the period that runs from the signing of the judgment be July 21, 1991." On December 17, 1991, the trial court issued its order stating:

For the benefit of the Court of Appeal, . . . the Court conditionally grants that Guaranty Federal received actual notice of signing of judgment on July 21, 1991. The Court further finds that Guaranty Federal received notice of judgment on July 9, 1991.

In its motion for rehearing and brief filed in this Court, Guaranty Federal requests that we reconsider our judgment of dismissal. Guaranty Federal asserts that the record now before this Court "demonstrates that Guaranty Federal first received either notice or actual knowledge of the entry of" judgment on July 21, 1991.

We do not address Guaranty Federal's assertion. The trial court initially stated that the relevant date was July 10, 1991, and did not make a finding that the date was more than twenty days after the judgment was signed. Only after this Court dismissed its appeal did Guaranty Federal return to the trial court to obtain the findings necessary pursuant to Rule 306a and Rule 5. Although neither rule sets a time limit within which to establish the date of notice, we conclude that, in this case, Guaranty Federal should have perfected its appeal pursuant to Rule 41(a). Sur v. R.W. Otts, Inc., 800 S.W.2d 647 (Tex. App. 1990, writ denied).

The date Guaranty Federal's attorney received notice did not prevent Guaranty Federal from filing a timely motion for new trial. Furthermore, Guaranty Federal did not obtain the requisite finding at the time of the first motion and hearing pursuant to Rule 306a.

Accordingly, the motion for rehearing of Guaranty Federal Savings Bank is overruled.

[Before Chief Justice Carroll, Justices Aboussie and Kidd]

Filed: February 19, 1992

[Do Not Publish]

1. ¹  We find no merit to the argument that the parties agreed to the date of July 10, 1991. Texas R. Civ. P. Ann. 329b (Supp. 1991) does not provide for an extension of time within which to hear a motion for new trial. Compare Tex. R. Civ. P. Ann. 329b(4) (1961, amended 1981) (motions for new trial must be determined within forty-five days after filing unless decision postponed by written agreement of parties). Rule 306a allows for time limits to run other than from the date of judgment only if a party did not receive notice within twenty days of the signing of judgment. See Tex. R. Civ. P. Ann. 5 (Supp. 1991); Cent. St. Dep. of Crim. Rec. v. M M M , 665 S.W.2d 562, 564 (Tex. App. 1984, writ ref'd n.r.e.). Parties cannot confer appellate jurisdiction on a court by consent. Hogan v. G.,C.&S.F. Railway Company, 411 S.W.2d 815, 816 (Tex. Civ. App. 1966, writ ref'd); Welder v. Fritz, 750 S.W.2d 930, 932 (Tex. App. 1988, orig. proceeding).