Gilchrist Community Association v. J. Marcus Hill and James E. Bradley

Dismissed and Memorandum Opinion filed November 29, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00630-CV
GILCHRIST COMMUNITY ASSOCIATION, Appellant
V.
J. MARCUS HILL AND JAMES E. BRADLEY, Appellees
On Appeal from the County Court No. 2
Galveston County, Texas
Trial Court Cause No. CV76026A
MEMORANDUM OPINION
Appellant Gilchrist Community Association (Gilchrist) challenges the trial
court’s final judgment in favor of appellees J. Marcus Hill and James E. Bradley.
Concluding Gilchrist did not timely file its notice of appeal, we dismiss this appeal
for want of subject-matter jurisdiction.
Generally, the notice of appeal must be filed within 30 days after the
judgment is signed.1 Tex. R. App. P. 26.1. The period for filing a notice of appeal
may be extended to 90 days if any party timely files, among other documents, a
motion for new trial. Tex. R. App. P. 26.1(a)(1); see Tex. R. Civ. P. 329b(a)
(motion for new trial shall be filed within thirty days after judgment is signed). A
timely-filed notice of appeal is a jurisdictional requirement. In re United Services
Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010).
Under Texas Rule of Appellate Procedure 4.2, however, the time for filing
the notice of appeal may begin running later than the signing of the judgment if a
party adversely affected by the signing does not receive notice of the judgment
within 20 days after the judgment was signed. Rule 4.2(a)(1) provides:
If a party affected by a judgment or other appealable order has not—
within 20 days after the judgment or order was signed—either
received the notice required by Texas Rule of Civil Procedure 306a.3
or acquired actual knowledge of the signing, then a period that, under
these rules, runs from the signing will begin for that party on the
earlier of the date when the party receives notice or acquires actual
knowledge of the signing. But in no event may the period begin more
than 90 days after the judgment or order was signed.
Tex. R. App. P. 4.2(a)(1). Rule 4.2 further states that the procedure to gain
additional time is governed by Texas Rule of Civil Procedure 306a(5), which
provides:
5. Motion, notice and hearing. In order to establish the application of
paragraph (4) of this rule,2 the party adversely affected is required to
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.
1
The instant appeal is not an accelerated or restricted appeal. Tex. R. Civ. P. 26.1(b), (c).
2
Paragraph 4 of Rule 306a discusses circumstances in which a party does not receive
timely notice of the trial court’s judgment. Tex. R. Civ. P. 306a(4).
2
Tex. R. Civ. P. 306a(5); see Tex. R. App. P. 4.2(b). Texas Rule of Appellate
Procedure 4.2 further requires that, after the hearing on the Rule 306a(5) motion,
“the trial court must sign a written order that finds the date when the party or the
party’s attorney first either received notice or acquired actual knowledge that the
judgment or order was signed.” Tex. R. App. P. 4.2(c).
In the instant case, the trial court signed its final judgment3 confirming an
arbitration award in favor of appellees and awarding appellees actual damages and
pre- and post-judgment interest from Gilchrist on May 25, 2021. No notice of
appeal or motion for new trial was filed within 30 days after the judgment was
signed. Tex. R. App. P. 26.1; Tex. R. Civ. P. 329b(a). Instead, Gilchrist filed a
motion for vacatur and modification of the arbitration award as well as a verified
motion for new trial pursuant to Texas Rule of Civil Procedure 306(a)on August
17, 2021, 84 days after the trial court signed its judgment. See Tex. R. Civ. P.
305a(5). In its motion for new trial, Gilchrist argued that “neither [Gilchrist] nor
[its] counsel of record received actual notice of the entry of the Final Judgment by
June 14, 2021.” See id. While it appears the trial court held additional proceedings
after these filings, there is no signed written order in the record finding the date
that Gilchrist or its attorney first either received notice or acquired actual
knowledge that the judgment was signed as required by Rule 4.2. Tex. R. App. P.
4.2(c). Absent such a signed, written order containing such a finding, and absent a
timely-filed postjudgment motion extending the time to file a notice of appeal,
Gilchrist’s notice of appeal was due 30 days after the trial court signed its
judgment on May 25, 2021. Tex. R. App. P. 26.1. Gilchrist did not file its notice of
3
The trial court’s judgment states, “This judgment is final, disposes of all claims and all
parties, whether brought or could have been brought, including compulsory or permissive
counterclaims and is appealable.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex.
2001).
3
appeal until November 1, 2021, 160 days after the trial court signed its judgment,
making the notice untimely and depriving this court of subject-matter jurisdiction
over this appeal. Tex. R. App. P. 4.2, 26.1; see United Services Auto. Ass’n, 307
S.W.3d at 307; see also Cantu v. Longoria, 878 S.W.2d 131, 131–32 (Tex. 1994)
(if trial court does not determine when party received notice of the judgment under
Rule 4.2(c)’s predecessor, party is precluded from pursuing appeal).4
We dismiss this appeal for want of subject-matter jurisdiction. Tex. R. App.
P. 42.3(a).5
/s/ Charles A. Spain
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
4
Under Cantu, any further relief potentially available to Gilchrist is not available by
appeal, and accordingly we deny Gilchrist’s request to abate this appeal to the trial court for
further proceedings complying with Rule 4.2. See Cantu, 878 S.W.2d at 131–32; see also Unity
Nat’l Bank v. Scroggins, No. 01-20-00593-CV, 2021 WL 4897833, at *5 (Tex. App.—Houston
[1st Dist.] Oct. 21, 2021, pet. filed) (mem. op.) (denying request to abate, citing Cantu, and
explaining that appellant bears burden of compliance with Rule 4.2). This makes sense, given
that absent the finding required by Rule 4.2, there has been no extension of either the trial court’s
plenary power or the time to file a notice of appeal.
5
Because the parties addressed the jurisdictional issue in their briefing, notice of
involuntary dismissal is unnecessary. See Tex. R. App. P. 42.3(a).
4