Estate of Mary Luella Clayton Hardie

Opinion

Fourth Court of Appeals

San Antonio, Texas

February 2, 2015

No. 04-14-00786-CV

ESTATE OF MARY LUELLA CLAYTON HARDIE, Deceased,

From the Probate Court No 2, Bexar County, Texas Trial Court No. 2008-PC-2790 Honorable Tom Rickhoff, Judge Presiding

ORDER

Appellant attempts to appeal from a judgment signed April 14, 2014. The notice of appeal was filed on October 28, 2014. Appellant claims that the notice of appeal is timely because he did not receive notice of the final judgment until July 20, 2014.

On December 3, 2014, appellee filed a Motion to Dismiss Appeal arguing that appellant cannot rely on Rule 306a(4) because he received notice of the judgment 97 days after it was signed, and the rule expressly provides that the time period for discovery of a final judgment cannot extend beyond 90 days. TEX. R. CIV. P. 306a(4); Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993).

The Court has considered the motion to dismiss, as well as appellant’s response and appellee’s reply. The Court agrees that appellant received notice of the signing of the final judgment outside of the 90-day time period prescribed by Rule 306a(4), and that appellant cannot rely on Rule 306a(4) to extend the time period for filing the notice of appeal. See TEX. R. CIV. P. 306a(4); Levit, 850 S.W.2d at 470.

The Court, however, has not determined whether appellant’s notice of appeal may be construed as a notice of restricted appeal under Rule 30. See TEX. R. APP. P. 30. Accordingly, appellant is ORDERED to show cause in writing showing that this court has jurisdiction to retain this appeal on its docket as a restricted appeal under Rule 30. See id. Any response to this order must specifically address whether appellant participated in the hearing that resulted in the judgment complained of. The response must be filed within fifteen days of the date of this order. See TEX. R. APP. P. 42.3(a), (c).

All appellate deadlines are SUSPENDED pending our determination of whether we have jurisdiction over this appeal.

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Rebeca C. Martinez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 2nd day of February, 2015.

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Keith E. Hottle Clerk of Court