Jon Alan Ashcraft v. Estate of Jay Arden Ashcraft and Richard Trachtenberg, Administrator

• Court: Court of Appeals of Texas
• Decided: July 6, 2011
• Docket: 03-11-00110-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00110-CV

Jon Alan Ashcraft, Appellant

v.

Estate of Jay Arden Ashcraft and Richard Trachtenberg, Administrator, Appellees

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C-1-PB-10-000318, HONORABLE GUY S. HERMAN, JUDGE PRESIDING

MEMORANDUM OPINION

On February 14, 2011, Appellant Jon Alan Ashcraft, appearing pro se, filed a notice

of appeal from the probate court’s declaratory judgment, which was signed on October 6, 2010. On

June 8, 2011, pursuant to rule of appellate procedure 42.3, this Court notified Ashcraft that the

notice of appeal appeared to be untimely and that his appeal would be dismissed unless he

provided information on or before June 20, 2011, to show the jurisdiction of this Court. See Tex.

R. App. P. 42.3. In response to our letter, Ashcraft informed us that he is incarcerated, the

probate court denied his motion for issuance of bench warrant and his motion to participate in the

hearing by teleconference, and he did not receive notice of the signing of the judgment until

November 15, 2010, more than twenty days after the judgment was signed. Ashcraft further

informed us, and the clerk’s record confirms, that on November 30, 2010, he filed a motion pursuant to rule of civil procedure 306a to establish the operative date of the judgment, which he re-urged on

January 4, 2011, and January 23, 2011. See Tex. R. Civ. P. 306a(5).

Rule 306a of the 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 the party

first received notice or acquired actual knowledge of the signing of the judgment. Tex. R. App. P.

4.2(c).

The probate court did not rule on Ashcraft’s motion. See Tex. R. App. P. 4.2(c).

Accordingly, we abate this appeal and remand the cause to the probate court to conduct the requisite

hearing and to sign an order ruling on Ashcraft’s motion. See id. After the hearing, the probate court

shall cause a supplemental clerk’s record with a copy of the order to be filed with this Court. The

supplemental clerk’s record shall be filed no later than 45 days following the date of this opinion.

2 __________________________________________

Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Abated

Filed: July 6, 2011