Stephen Patrick Black v. Christian Cruz

• Court: Court of Appeals of Texas
• Decided: August 9, 2023
• Docket: 07-23-00262-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00262-CV

STEPHEN PATRICK BLACK, APPELLANT

V.

CHRISTIAN CRUZ, APPELLEE

On Appeal from the County Court Lamb County, Texas Trial Court No. CC-3443, Honorable James M. DeLoach, Presiding

August 9, 2023 ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Stephen Patrick Black, proceeding pro se, appeals from the trial court’s

summary judgment order in favor of Appellee, Christian Cruz. The trial court signed the

summary judgment order on April 13, 2023. On June 27, 2023, Black filed a notice of

appeal and a sworn motion to extend the appellate deadline pursuant to Rule of Civil

Procedure 306a. In his Rule 306a motion, Black asserts that he did not receive notice or

acquire actual knowledge of the order until June 13, 2023, when he received a certified

mailing from the trial court clerk. The Rule 306a motion remains pending in the trial court. We remand the cause to the trial court to rule on the motion pursuant to Rule of Appellate

Procedure 4.2(c).

A timely notice of appeal is essential to invoking our jurisdiction. See TEX. R. APP.

P. 25.1(b), 26.1; Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997). To be timely,

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. TEX. R. APP. P. 26.1(a). However, 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 Rule 306a motion 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); TEX. R. CIV. P. 306a.5.

Black filed a sworn Rule 306a motion with the trial court seeking additional time to

file his notice of appeal and requesting a hearing. “The sworn motion establishes a prima

facie case that the party lacked timely notice and invokes a trial court’s 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). We, therefore, abate this

appeal and remand the cause to the trial court to conduct a hearing, rule on Black’s

motion, and enter a finding of the date Black received notice or acquired actual knowledge

of the signing of the summary judgment order. See TEX. R. APP. P. 4.2; TEX. R. CIV.

2 P.306a; PDG, Inc. v. Abilene Vill., LLC, No. 07-19-00118-CV, 2019 Tex. App. LEXIS

3129, at *3 (Tex. App.—Amarillo Apr. 17, 2019, order) (per curiam) (remanding for the

trial court to enter findings in accordance with appellate rule 4.2).

The trial court shall enter its findings in a written order and include the order in a

clerk’s record to be filed with this Court by September 8, 2023.

It is so ordered.

Per Curiam