Lap Tak Samuel Lam and Heather Lam v. Carmen Traweek and Capital Title of Texas, LLC

• Court: Court of Appeals of Texas
• Decided: October 12, 2023
• Docket: 10-23-00248-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00248-CV

LAP TAK SAMUEL LAM AND HEATHER LAM, Appellants v.

CARMEN TRAWEEK AND CAPITAL TITLE OF TEXAS, LLC, Appellees

From the 18th District Court Johnson County, Texas Trial Court No. DC-C202000744

MEMORANDUM OPINION

Appellants Lap Tak Samuel Lam and Heather Lam attempt to appeal from

separate summary judgments rendered in favor of Appellees Carmen Traweek and

Capital Title of Texas, LLC. We conclude we lack jurisdiction and dismiss the appeal. The summary judgments were signed April 26, 2023.1 Appellants filed their notice

of appeal in the trial court on July 21, 2023. Because it appeared the notice of appeal was

untimely, the Clerk of this Court notified Appellants that this cause was subject to

dismissal for want of jurisdiction. The Clerk further notified them that the appeal may

be dismissed unless, within fourteen days, they filed a response showing grounds for

continuing the appeal. In their response, Appellants explained that they were unaware

of the judgments until June 7, 2023, and twenty-eight days later, on July 5, 2023, they filed

their motion for new trial in which they asserted that they had no notice of the motions

for summary judgment or the hearing, and therefore could not respond. They contended

that they timely filed their motion for new trial and notice of appeal pursuant to the

extended deadlines for parties who receive no notice of a judgment against them.

Unfortunately, Appellants misconstrued the applicable rules of procedure. Each

Appellee filed a response to Appellants' jurisdictional brief in which they focus on

whether Appellants, through their previous attorney, had received proper notices in the

trial court. Such a discussion, appropriate in the trial court, is inapplicable at this

juncture.

The trial court has plenary power to grant a new trial or to vacate, modify, correct,

or reform a judgment or order within thirty days after the judgment is signed. TEX. R.

1Our record includes only the summary judgment in favor of Traweek and an indication that a separate summary judgment was rendered in favor of Capital Title of Texas, LLC on the same day. Lam v. Traweek Page 2 CIV. P. 329b(d). Accordingly, a motion for new trial shall be filed prior to or within thirty

days after the judgment or order is signed. Id. 329b(a). A properly filed motion for new

trial extends a trial court's plenary power over its judgment. Mitschke v. Borromeo, 645

S.W.3d 251, 254 (Tex. 2022). Appellants' motion for new trial was filed more than a month

late. In it, they explained that they did not learn of the judgments until June 7, 2023, more

than a month after the judgments were signed.

The rules anticipate the possibility that a party may not receive timely notice of a

judgment. See TEX. R. CIV. P. 306a; TEX. R. APP. P. 4.2. If a party does not receive the

required notice or acquire actual knowledge of the judgment until more than twenty but

less than ninety-one days after the judgment is signed, Rule 306a allows the time periods

to run from the date the party received notice or acquired actual knowledge of the

judgment. TEX. R. CIV. P. 306a(4). But to trigger application of the Rule 306a(4) time

extensions, the party adversely affected must comply with the jurisdictional

requirements of Rule 306a(5). See id. 306a(5); TEX. R. APP. P. 4.2(b); Mem'l Hosp. of

Galveston Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam). That party is

required to prove in the trial court, on sworn motion and notice, the date on which the

party or his attorney first either received notice of the judgment or acquired actual

knowledge of the signing and that this date was more than twenty days after the

judgment was signed. TEX. R. CIV. P. 306a(5). A sworn motion complying with Rule 306a

establishes a prima facie case that the party lacked timely notice and invokes a trial court's

Lam v. Traweek Page 3 otherwise-expired jurisdiction for the limited purpose of holding an evidentiary hearing

to determine the date on which the party or its counsel first received notice or acquired

knowledge of the judgment. In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig.

proceeding).

The rules do not set a deadline for filing a motion under Rule 306a(5). See John v.

Marshall Health Servs., 58 S.W.3d 738, 741 (Tex. 2001). (per curiam). However, the

supreme court has determined that a Rule 306a(5) motion must be filed and ruled upon

while the trial court retains plenary power, and the time for the court's plenary power is

counted from the date of notice of the judgment as alleged in the Rule 306a(5) motion. Id.

Therefore, Appellants were required to file a Rule 306a(5) motion within thirty days from

June 7, 2023. Appellants filed only an unsworn motion for new trial complaining that

they had no notice of the summary judgment hearing and asking for a new trial because

they have a meritorious defense. They never filed a sworn motion attempting to comply

with Rule 306a(5). Accordingly, they never became entitled to the extended deadlines

promised in Rule 306a(4). See Gillis, 741 S.W.2d at 365.

Texas Rule of Appellate Procedure 26.1 requires the notice of appeal to be filed

within thirty days after the judgment is signed or within ninety days after the judgment

is signed if any party timely files a motion for new trial. TEX. R. APP. P. 26.1(a). Here, the

trial court's plenary power expired on May 25, 2023. Appellants' July 5, 2023 motion for

new trial was untimely and did not extend the time for filing the notice of appeal.

Lam v. Traweek Page 4 Appellants' notice of appeal was due on or before May 25, 2023. Their July 21,

2023 notice of appeal was not timely. Neither did they file a timely motion for extension

of time to file the notice of appeal. See TEX. R. APP. P. 26.3. The time for filing a notice of

appeal is jurisdictional in this court, and absent a timely filed notice of appeal or a timely

filed motion for extension, we must dismiss the appeal. Id. 25.1(b), 26.1, 26.3; Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Appellants did not avail themselves of the Rule 306a procedure to extend the post-

judgment timetables and, thus, never extended the applicable, jurisdictional time period

for filing their notice of appeal. Because the notice of appeal was not timely, we dismiss

this cause for want of jurisdiction.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith (Chief Justice Gray concurs.) Dismissed Opinion delivered and filed October 12, 2023 [CV06]

Lam v. Traweek Page 5