Big Bend Communications, Inc. D.B.A Granite Publications D.B.A. Ft. Stockton Pioneer and Jim Chionsini, CEO v. Holly Meiller

• Court: Court of Appeals of Texas
• Decided: August 28, 2003
• Docket: 08-03-00201-CV
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BIG BEND COMMUNICATIONS, INC. D/B/A GRANITE PUBLICATIONS D/B/A FORT STOCKTON PIONEER AND JIM CHIONSINI, CEO,                             Appellants, v. HOLLY MEILLER,                             Appellee.

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No. 08-03-00201-CV Appeal from the County Court of Pecos County, Texas (TC#2759)

MEMORANDUM OPINION

Pending is appellants= motion to retain this appeal on the docket of this Court.  For the reasons that follow, we deny the motion and dismiss the appeal.

Background    

We sent the parties notice of our intent to dismiss this appeal for want of jurisdiction unless any party could show grounds for continuing the appeal.  See Big Bend Communications v. Meiller, No. 08-03-00201-CV, 2003 WL 21517836, at *1 (Tex. App.--El Paso July 3, 2003, no pet. h.).  The notice was based on documents on file with this Court, indicating that the judgment was signed on December 30, 2002, and that appellants filed their motion for new trial on January 30, 2003 and their notice of appeal on May 2, 2003.  Id.  Based on a judgment date of December 30, 2002, the motion for new trial and notice of appeal were untimely.  Id.; see also Tex. R. Civ. P. 306a.1, 329b(a); Tex. R. App. P. 26.1(a).

Appellants responded to our notice with a motion to retain the appeal.  In their motion, appellants claim that they did not receive notice that the judgment was signed until January 30, 2003.  Accordingly, they argue that the time for filing the motion for new trial and the notice of appeal did not begin running until that date.  See Tex. R. Civ. P. 306a.4; Tex. R. App. P. 4.2(a)(1).  Because it appeared that the trial court had conducted a hearing to determine when appellants received notice of the judgment, we ordered appellants to make arrangements with the county clerk and the court reporter to have clerk=s and reporter=s records filed in this Court.  See Meiller, 2003 WL 21517836, at *2.  We have now received the clerk=s record and we have been informed by appellants and the county clerk that a court reporter was not present for the hearing.

The clerk=s record contains appellants= AMotion for Additional Time to File Documents.@  Attached to this motion are affidavits by one of the appellants and by appellants= attorney.  The affiants state that they did not learn that the judgment had been signed until January 30, 2003.  The clerk=s record also contains an AOrder Denying Motion for New Trial Nunc Pro Tunc.@  In this order, the court made the following findings: (1) the parties received notice of the judgment on January 30, 2003; (2) based on the sworn testimony of the county clerk, the judgment was mailed to appellants= attorney on December 30, 2002; (3) appellants= attorney was given notice of the judgment by his presence when the judgment was rendered; and (4) appellants= motion for new trial was not timely filed.

Discussion

Generally, the time for filing a motion for new trial and a notice of appeal runs from the date the judgment was signed.  See Tex. R. Civ. P. 306a.1; Tex. R. App. P. 26.1 But if a party does not receive notice or actual knowledge of the signing of the judgment within twenty days after its signing, the time runs from the date the party received notice or actual knowledge.  Tex. R. Civ. P. 306a.4; Tex. R. App. P. 4.2(a)(1).  To establish the applicability of this exception, the party must prove in the trial court, on sworn motion, the date the party received notice or actual knowledge of the signing.  Tex. R. Civ. P. 306a.5; Tex. R. App. P. 4.2(b).  If notice of the judgment was properly addressed, stamped, and mailed to the party or the party=s attorney, the trial court may presume that the notice was received in due course.  Hot Shot Messenger Serv. v. State, 798 S.W.2d 413, 415 (Tex. App.--Austin 1990, writ denied); Jimmy Swaggart Ministries v. City of Arlington, 718 S.W.2d 83, 86 (Tex. App.--Fort Worth 1986, no writ).

Appellants argue that:  (1) the trial court=s findings that their attorney was present when judgment was rendered and that the judgment was mailed to the attorney are immaterial because appellants did not receive notice that the judgment was signed until January 30, 2003; and (2) the trial court=s finding that the motion for new trial was untimely is erroneous.

We review the trial court=s findings regarding the date a party received notice or actual knowledge of the signing of a judgment under the standards for legal and factual sufficiency of the evidence.  Sharm Inc. v. Martinez, 885 S.W.2d 165, 167 (Tex. App.--Corpus Christi 1993, no writ); Hot Shot Messenger Serv., 798 S.W.2d at 414.  When there is no reporter=s record, we must presume that sufficient evidence was introduced to support both the trial court=s express findings and any omitted findings necessary to support the order.  Mays v. Pierce, 154 Tex. 487, 493, 281 S.W.2d 79, 82 (1955); Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex. App.--Houston [1st Dist.] 1992, writ dism=d w.o.j.); Nacol v. Metallic Dev. Corp., 614 S.W.2d 172, 175 (Tex. Civ. App.--Fort Worth 1980, writ dism=d).

In this case, we do not have a reporter=s record.  Accordingly, we presume that there is sufficient evidence to support the trial court=s order and its relevant findings.  In particular, we note that the trial court found that the judgment was mailed to appellants= attorney on December 30, 2002.  We presume that there was also evidence that the judgment was properly addressed and stamped.  Although appellants claimed that the attorney never received the notice, this merely created a fact issue for the trial court to resolve.  See Jimmy Swaggart Ministries, 718 S.W.2d at 86.

Having no reporter=s record, we accept the trial court=s finding that the motion for new trial was untimely.  Therefore, the notice of appeal was also untimely.  See Tex. R. App. P. 26.1.

Conclusion

For the reasons stated herein, the motion to retain the appeal is denied, and the appeal is dismissed for want of jurisdiction.

SUSAN LARSEN, Justice

August 28, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.