Roy J. Elizondo, III v. Andrew Smallbone

• Court: Court of Appeals of Texas
• Decided: August 29, 2023
• Docket: 13-23-00301-CV
• Status: Published

Opinion

NUMBER 13-23-00301-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ROY J. ELIZONDO, III, Appellant,

v.

ANDREW SMALLBONE, Appellee.

On appeal from the 148th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria

This cause is before the Court on its own motion. We must sua sponte consider

whether appellant Roy J. Elizondo, III untimely perfected his appeal to this Court, an issue

which affects our jurisdiction. See State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); Allstate Ins. Co. v. Barnet, 589 S.W.3d 313, 317 (Tex. App.—El Paso 2019, no

pet.). After due consideration, we dismiss the appeal for lack of jurisidcition.

I. BACKGROUND

Appellant attempted to perfect an appeal from a judgment entered by the 148th

District Court of Nueces County, Texas, in cause number 2023DCV-0482-E. The

judgment dismissing appellant’s case under the Civil Practices and Remedies Code

Section 27, otherwise known as the Texas Citizens’ Participation Act, was signed on April

27, 2023. Appellant filed a notice of appeal on July 3, 2023.

On June 29, 2023, pursuant to Texas Rule of Civil Procedure 306(a)(4), appellant

filed a sworn motion with the trial court asking it to make a finding and issue an order

stating that he was not served with the judgment until June 23, 2023. On August 10, 2023,

the trial court issued an order denying plaintiff’s motion.

Furthermore, on July 13, 2023, the Clerk of the Court notified appellant that it

appeared that his appeal had not been timely perfected and requested correction of the

defect within ten days. See TEX. R. APP. P. 42.3. The Clerk advised appellant that the

appeal would be dismissed if the defect was not cured.

II. APPLICABLE LAW

Absent a timely filed notice of appeal, an appellate court lacks jurisdiction over the

appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010)(orig.

proceeding); Jarrell v. Bergdorf, 580 S.W.3d 463, 466 (Tex. App.—Houston [14th Dist.]

2019, no pet.); Baker v. Regency Nursing & Rehab. Ctrs., Inc., 534 S.W.3d 684, 684–85

(Tex. App.—Corpus Christi–Edinburg 2017, no pet.). Generally, a notice of appeal is due

2 within thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. The deadline to

file a notice of appeal is extended to ninety days after the date the judgment is signed if,

within thirty days after the judgment is signed, any party timely files a motion for new trial,

motion to modify the judgment, motion to reinstate, or, under certain circumstances, a

request for findings of fact and conclusions of law. See id. R. 26.1(a); TEX. R. CIV. P. 296,

329b(a),(g); Young v. Di Ferrante, 553 S.W.3d 125, 128 (Tex. App.—Houston [14th Dist.]

2018, pet. denied).

Texas Rule of Civil Procedure 306a(3) requires the clerk of the court to provide

notice regarding the entry of judgments or appealable orders. See TEX. R. CIV. P. 306a(3).

The rule states, in relevant part:

When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4).

Id. Paragraph (1), as referenced in the rule, provides that the deadline for filing post

judgment motions, such as a motion for new trial or motion to reinstate a case, begins to

run on the date the judgment is signed. See TEX. R. CIV. PRO. 306(a). Paragraph (4)

addresses what happens when a party does not immediately receive notice of a

judgment, as appellant alleges happened here. See id. R. 306a(4). It provides that, when

more than twenty days have passed between the date that the trial court signs the

judgment or appealable order and the date that a party receives notice or acquires actual

knowledge of the signing, the periods referenced in paragraph (1) will begin on the date

the party received notice or acquired actual knowledge of the signing, whichever is earlier,

3 but in no event will the period begin more than ninety days after the judgment was signed.

Id.; see Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 176 (Tex. App.––Dallas 2013,

no pet.); see also John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001)

(per curiam).

To obtain an extension of post judgment deadlines under Rule 306a(4), the party

must prove in the trial court, on sworn motion and notice: (1) the date the party or her

attorney first either received a notice of the judgment or acquired actual knowledge of the

signing; and (2) that this date was more than twenty but fewer than ninety-one days after

the judgment was signed. See TEX. R. CIV. P. 306a(4),(5); Estate of Howley v. Haberman,

878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding) (per curiam); In re J.S., 392 S.W.3d

334, 337 (Tex. App.—El Paso 2013, no pet.); Nathan A. Watson Co. v. Employers Mut.

Cas. Co., 218 S.W.3d 797, 800 (Tex. App.—Fort Worth 2007, no pet.). The purpose of a

sworn motion is to establish a prima facie case of lack of timely notice, thereby invoking

the trial court’s otherwise-expired jurisdiction for the limited purpose of conducting an

evidentiary hearing to determine the date on which the party or the party’s counsel first

received notice or acquired knowledge of the judgment. In re Lynd Co., 195 S.W.3d at

685; Jarrell v. Bergdorf, 580 S.W.3d 463, 467 (Tex. App.—Houston [14th Dist.] 2019, no

pet.); In re Estrada, 492 S.W.3d 42, 50 (Tex. App.—Corpus Christi–Edinburg 2016, orig.

proceeding); In re J.S., 392 S.W.3d at 337.

III. ANALYSIS

The judgment subject to appeal was signed on April 27, 2023. Appellant did not

file his notice of appeal until July 2, 2023. Since the trial court issued an order denying

4 appellant’s Rule 306a motion, the appellate timeline began the date the judgment was

originally signed. Therefore, the appeal was not filed timely under the appellate rules, and

we lack the power to consider it timely filed. See TEX. R. APP. P. 2 and 26.1. Furthermore,

appellant failed to correct the defect and has otherwise not responded to the notices from

the clerk requiring a response or other action within the time specified. See id. R. 42.3(a),

(b), and (c).

IV. CONCLUSION

The Court, having examined and fully considered the appellant’s pleadings and

the applicable law, is of the opinion that the notice of appeal was untimely, and we lack

jurisdiction over the appeal. Accordingly, we dismiss the appeal for lack of jurisdiction.

See id. R.42.3(a).

NORA L. LONGORIA Justice

Delivered and filed on the 29th day of August, 2023.