PDG, Inc. v. Abilene Village, LLC

• Court: Court of Appeals of Texas
• Decided: April 17, 2019
• Docket: 07-19-00118-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00118-CV

PDG, INC., APPELLANT

V.

ABILENE VILLAGE, LLC, APPELLEE

On Appeal from the 42nd District Court1 Taylor County, Texas Trial Court No. 50228-A, Honorable James Eidson, Presiding

April 17, 2019

ORDER OF ABATEMENT AND REMAND Before CAMPBELL and PIRTLE and PARKER, JJ.

Appellant, PDG, Inc., appeals a no-answer default judgment granted in favor of

appellee, Abilene Village, LLC. We remand the cause to the trial court to enter a finding

of the date PDG received notice or acquired actual knowledge of the default judgment

per Texas Rule of Appellate Procedure 4.2(c).

1 This appeal was transferred to this Court from the Eleventh Court of Appeals by order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). The trial court signed a default judgment on November 30, 2018. On February 13,

2019, PDG filed a verified motion to extend the post-judgment deadlines pursuant to

Texas Rule of Civil Procedure 306a.5, a motion for new trial, and a motion to set aside

the default judgment. In its motion, PDG asserted that it did not receive notice or acquire

actual knowledge of the judgment until January 15, 2019, the day its attorneys discovered

that a default judgment was signed. By an agreed order, the trial court granted PDG’s

motion to extend the post-judgment deadlines, finding that (a) the notice of judgment was

not sent to PDG as required by Texas Rule of Civil Procedure 239a, and (b) “Plaintiff

Abilene Village, LLC agree[d] to the extension of post-judgment deadlines as requested

by Defendant PDG, Inc.” The trial court later denied PDG’s motion for new trial and

motion to set aside the default judgment. PDG filed a notice of appeal on March 25, 2019.

A notice of appeal is due within thirty days after the judgment is signed or within

ninety days if a motion for new trial, motion to modify the judgment, motion to reinstate,

or request for findings is timely filed. See TEX. R. APP. P. 26.1(a). If a party does not

receive notice or acquire actual knowledge of a judgment within twenty days of its signing,

the period to file a notice of appeal will not begin to run until the date the party received

notice or acquired actual knowledge of the judgment. TEX. R. APP. P. 4.2(a); TEX. R. CIV.

P. 306a.4. To gain this additional time, a party must file a sworn motion in compliance

with Rule of Civil Procedure 306a.5 and obtain a written order that finds the date when

the party or the party’s attorney first received notice or acquired actual knowledge that

the judgment was signed. TEX. R. APP. P. 4.2(b), (c). A 306a.5 motion must be filed while

the trial court retains plenary power, measured from the date the movant received notice

2 of the judgment as determined by the trial court. John v. Marshall Health Servs., Inc., 58

S.W.3d 738, 741 (Tex. 2001) (per curiam).

The trial court granted PDG’s motion to extend the post-judgment deadlines

pursuant to Rule 306a.5, but did not make a finding of the date PDG first received notice

or acquired actual knowledge of the default judgment. Without this finding, we are unable

to determine whether PDG filed its notice of appeal timely. See TEX. R. APP. P. 26.1(a),

4.2.

Accordingly, we abate this appeal and remand the cause to the trial court to

conduct a hearing to determine the date on which PDG, or its attorney, first received

notice or acquired actual knowledge that the judgment was signed. See TEX. R. APP. P.

4.2; TEX. R. CIV. P. 306a.4, 306a.5; Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc., No.

12-04-00084-CV, 2004 Tex. App. LEXIS 4484, at *2-3 (Tex. App.—Tyler May 12, 2004,

order) (mem. op.) (remanding cause to the trial court to enter a finding in accordance with

Appellate Rule 4.2(c)). The trial court shall enter a written order of its findings and the

order shall be included in a supplemental clerk’s record filed with this Court by May 17,

2019. See TEX. R. APP. P. 4.2(c).

It is so ordered.

Per Curiam