Carlos & Emily Enterprises, Inc., and Carlos Garcia, Individually, D/B/A Express International v. Jose Luis Martinez

• Court: Court of Appeals of Texas
• Decided: January 22, 2015
• Docket: 13-14-00578-CV
• Status: Published

Opinion

NUMBER 13-14-00578-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

CARLOS & EMILY ENTERPRISES, INC., AND CARLOS GARCIA, INDIVIDUALLY, D/B/A EXPRESS INTERNATIONAL, Appellants,

v.

JOSE LUIS MARTINEZ, Appellee. ____________________________________________________________

On appeal from the County Court at Law No. 8 of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion Per Curiam

Appellants, Carlos & Emily Enterprises, Inc., and Carlos Garcia, Individually, d/b/a

Express International, attempted to perfect an appeal from a judgment entered by the

County Court at Law No. 8 of Hidalgo County, Texas, in trial court cause number CL-09- 0030-H. Judgment in this cause was signed on June 16, 2014. Appellants filed a notice

of appeal on September 22, 2014, stating that a motion to extend post judgment deadlines

was pending in the trial court. On October 17, 2014, this Court abated the appeal and

remanded to the trial court for proceedings in accordance with Texas Rule of Civil

Procedure 306a. See TEX. R. CIV. P. 306a. A supplemental record containing the trial

court’s findings has been filed and accordingly this appeal is REINSTATED.

Absent a timely filed notice of appeal from a final judgment or recognized

interlocutory order, we do not have jurisdiction over an appeal. See Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The notice of appeal must be filed within

thirty days after the judgment or other appealable order is signed when appellant has not

filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or

request for findings of fact and conclusion of law. See TEX. R. APP. P. 26.1.

Rule 306a of the Texas Rules of Civil Procedure provides that if within twenty days

after a judgment is signed, a party adversely affected by it has neither received the

required notice nor acquired actual knowledge of the judgment, then appellate deadlines

shall begin to run from the date that such party received notice or acquired actual

knowledge of the rendition of judgment. TEX. R. CIV. P. 306a(4); see also TEX. R. APP.

P. 4.2(a). In order to establish the application of the rule, the adversely affected party

must prove in the trial court on sworn motion and notice the date on which the party first

received notice of the judgment or acquired actual knowledge of it and that this date was

more than twenty days after it was signed. TEX. R. CIV. P. 306a(5); TEX. R. APP. P. 4.2(b).

After hearing the motion, the trial court must sign a written order that finds the date when

2 the party first received notice or acquired actual knowledge of the signing of the judgment.

TEX. R. APP. P. 4.2(c).

The trial court conducted a hearing and denied appellants’ motion to extend post

judgment deadlines to August 28, 2014. The trial court concluded that appellants first

received notice of the signed final judgment on June 17, 2014, and first acquired actual

knowledge of the final judgment on July 31, 2014.

In this case, the trial court found that appellant received notice of the final judgment

within 20 days after the judgment was signed. Accordingly, rule 306a(4) is inapplicable.

Pursuant to Texas Rule of Appellate Procedure 26.1, appellants’ notice of appeal was

due on July 16, 2014, but was not filed until September 22, 2014. The Court, having

examined and fully considered the documents on file and appellants’ failure to timely

perfect their appeal, is of the opinion that the appeal should be dismissed for want of

jurisdiction. The appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See

TEX. R. APP. P. 42.3(a).

PER CURIAM

Delivered and filed the 22nd day of January, 2015.