Harvey Vorwerk, James Matyastik and Jane Vorwerk v. Custom Ag Service, Inc.

• Court: Court of Appeals of Texas
• Decided: October 14, 1992
• Docket: 03-91-00134-CV
• Status: Published

Opinion

Vorwerk v. Custom Ag Serv., Inc.

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

ON MOTION FOR REHEARING

NO. 3-91-134-CV

HARVEY VORWERK, JAMES MATYASTIK, AND JANE VORWERK,

APPELLANTS

vs.

CUSTOM AG SERVICE, INC.,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT

NO. 86-323-C, HONORABLE JOHN R. CARTER, JUDGE PRESIDING

PER CURIAM

On motion for rehearing appellants contend, among other things, that this Court erred in holding that delivery of mail to an incorrect postal address is notice. Appellants argue that the notice was mailed to a street address instead of attorney Vorwerk's post office box, and have attached to the motion for rehearing an affidavit from Stephanie Kunze stating that on an unspecified occasion she has received in her post office box a notice of arrival of certified or registered mail addressed to attorney Vorwerk. Appellants also have attached a photocopy of what purports to be the envelope containing the notice allegedly mailed on December 17, 1990, by first-class mail. The photocopy reflects a postage meter date of December 18, 1990. These items are not part of the appellate record and we cannot consider them. Nuby v. Allied Bankers Life Ins. Co., 797 S.W.2d 396, 398 (Tex. App.--Austin 1990, no writ); Gowan v. Reimers, 220 S.W.2d 331, 336 (Tex. Civ. App.--Fort Worth 1949, writ ref'd n.r.e.); see Tex. R. App. P. 50(a).

Appellants also contend that this Court erred in its disposition of point of error three because Harvey Vorwerk sought a protective order to avoid the deposition. Appellants have tendered a supplemental transcript containing the motion for a protective order and at this Court's request have filed a motion requesting permission to file a postsubmission supplemental transcript. The motion, however, fails to show unusual circumstances that warrant the Court's granting the motion, and we overrule it. See Nuby, 797 S.W.2d at 398; Tex. R. App. P. 19, 55(c). The clerk of this Court has, therefore, marked the supplemental transcript "Received," not "Filed," and we will not consider the supplemental transcript at this late date.

We overrule all points of error and, therefore, overrule the motion for rehearing.

[Before Justices Powers, Jones and Kidd]

Motion for Rehearing Overruled

Filed: October 14, 1992

[Do Not Publish]