Passero, John R. and Wife, Nelda C. Passero v. Maxon, Carroll Ann Shelton and James M. Shelton, Jr. Ind. & dba C. & J and CSJ Investments, C. Michael Maddox CPA, Ind., James M. Shelton, Ralph WM. Scoggins and Carroll Ann Shelton Maxon, Co. Independent Executors of the Estate of James M. Shelton--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOHN R. PASSERO AND WIFE, )

NELDA C. PASSERO, ) No. 08-02-00216-CV

)

Appellants, ) Appeal from

)

v. ) 41st District Court

)

CARROLL ANN SHELTON MAXON AND ) of El Paso County, Texas

JAMES M. SHELTON, JR., INDIVIDUALLY, )

AND d/b/a C & J AND CSJ INVESTMENTS; ) (TC# 2002-014)

C. MICHAEL MADDOX, CPA, )

INDIVIDUALLY; JAMES M. SHELTON, )

RALPH WM. SCOGGINS AND )

CARROLL ANN SHELTON MAXON, )

CO-INDEPENDENT EXECUTORS OF THE )

ESTATE OF JAMES M. SHELTON, )

)

Appellees. )

O P I N I O N

This appeal is before the court on its own motion, for determination of whether it should be dismissed for want of jurisdiction. Having determined that the Passeros failed to timely perfect this appeal, we dismiss the appeal for want of jurisdiction.

FACTUAL SUMMARY

In 1993, the Passeros filed suit in cause number 93-4937 against James M. Shelton. Following a jury trial, judgment was granted in favor of Shelton on January 2, 1998. After the trial court overruled their motion for new trial, the Passeros filed a notice of appeal and an affidavit of indigence. The court reporter and Shelton contested the affidavit of indigence. When the Passeros failed to appear at the hearing, the trial court sustained both contests. The Passeros did not file the record or a brief, and this Court issued an unpublished opinion affirming the trial court=s judgment. See Passero v. Shelton, No. 08-98-00084-CV (Tex.App.--El Paso, June 3, 1999)(not designated for publication). On rehearing, the Passeros sought to disqualify the members of this Court and the trial judge. The various motions were denied and the Passeros= effort to obtain review in the Supreme Court was denied.

On January 2, 2002, the Passeros filed a petition for bill of review in the instant cause, seeking to set aside the prior judgment. Appellees filed a motion to dismiss alleging, among other things, that the procedure utilized by the Passeros is an improper attack on the prior judgment. Following a hearing, the trial court granted the motion and dismissed the case by a written order signed on March 7, 2002. The trial court=s order recites that all parties received notice of the hearing and appeared in court.

On May 8, 2002, the Passeros filed a request for findings of fact and conclusions of law. They then filed notice of appeal on May 17, 2002. Upon receipt of the notice of appeal, this Court notified the Passeros of our intention to dismiss their appeal because it did not appear that the notice of appeal had been timely filed. Acting pursuant to Tex.R.App.P. 4.2 and Tex.R.Civ.P. 306a, the Passeros filed in the trial court, on May 17, 2002, a motion for additional time to file documents. Additionally, the Passeros filed a Amotion to reinstate@ in the trial court on May 20, 2002. Despite the recitation in the judgment that they were provided with notice and appeared at the hearing, the Passeros claim in both motions and in a motion filed in this Court on May 24, 2002, that they did not have notice of the hearing and did not know the court had signed a dismissal order until April 18, 2002. Their motions assert that they received actual notice of the dismissal order on April 18, 2002. In the motion filed with this Court, the Passeros also requested that the time be extended in order to provide the trial court with an opportunity to rule on their pending motions. They represented that they had requested that the motions be set for hearing on May 30, 2002 but the trial court had refused to communicate with them about the hearing date.[1]

On June 20, 2002, this Court granted the Passeros= motion for an extension of time in which to perfect appeal but our order made the extension conditional upon resolution of the proceedings still pending in the trial court, namely, the Rule 306a(5) motion. We ordered the Passeros to notify the Court of the outcome of the proceedings in the trial court no later than fifteen days after the date of the hearing. No hearing was ever held in the trial court. Consequently, on September 5, 2002, this Court entered an order finding that no hearing had been held in the trial court and establishing the due date for the record as October 5, 2002. We received the clerk=s record on October 7, 2002. After reviewing the clerk=s record, the Court notified the Passeros of our intention to dismiss the appeal for want of jurisdiction. The Passeros have objected to dismissal of the appeal because they claim the Court granted their motion for extension of time in which to perfect the appeal.

FAILURE TO PERFECT THE APPEAL

A civil appeal is perfected when the notice of appeal is filed. Tex.R.App.P. 26.1; see Restrepo v. First Nat=l Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238 (Tex.App. -El Paso 1995, no writ). If the appellant does not timely file a motion for new trial, a motion to modify, a motion to reinstate under Rule 165a, or a request for findings of fact or conclusions of law, the notice of appeal must be filed within thirty days after the judgment or other appealable order is signed. Tex.R.App.P. 26.1; Restrepo, 892 S.W.2d at 238. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); see also Tex.R.App.P. 26.3. Here, the notice of appeal was due to be filed no later than April 6, 2002.[2]

If a party affected by a judgment or other appealable order has not--within 20 days after the judgment or order was signed--either received the notice required by Texas Rule of Civil Procedure 306a(3) or acquired actual knowledge of the signing, then a period that, under these rules, runs from the signing will begin for that party on the earlier of the date when the party receives notice or acquires actual knowledge of the signing. Tex.R.App.P. 4.2(a)(1). The procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a(5). Tex.R.App.P. 4.2(b). That rule requires the party adversely affected 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 or order was signed. Tex.R.Civ.P. 306a(5). The purpose of the Rule 306a motion is to establish a prima facie showing of lack of notice, thereby reinvoking the trial court=s jurisdiction for the limited purpose of holding a Rule 306a hearing. In re Ray, 967 S.W.2d 951, 953 (Tex.App.--Dallas 1998, orig. proceeding). Only when the motion makes a prima facie showing of lack of notice is the trial court required to holding an evidentiary hearing. Id. Failure to hold a hearing and make a finding once a prima facie case is established constitutes an abuse of discretion. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Ray, 967 S.W.2d at 953.

The Passeros sustained their burden by filing a sworn motion pursuant to Rules 306a(5) which established a prima facie showing of lack of notice. Although the Passeros filed a proposed order setting the motion for a hearing to be held on May 30, 2002, no hearing has ever been set or held.[3] Consequently, the trial court has not made the finding required by Rule 4.2(c).[4] In the absence of this finding, the Passeros are unable to invoke the benefits of Rule 4.2(a)(1).

The Passeros maintain that the trial court either ignored or denied their request to set the Rule 306a(5) motion for hearing on May 30, 2002, but there is no evidence that they ever requested that a hearing be set on another date. Despite our stated intention to dismiss the appeal for want of jurisdiction, the Passeros have not sought mandamus review of the trial court=s alleged refusal to set a hearing date on their Rule 306a(5) motion. See Cantu, 878 S.W.2d at 132 (plaintiff was entitled to mandamus directing trial court to determine when plaintiff received notice of court=s adverse judgment). Instead, they have allowed five months to elapse since they last requested a hearing on their Rule 306a(5) motion.[5]

The Passeros= assertion that this Court granted their motion for extension of time in which to perfect appeal is erroneous. Rather than dismissing the appeal, we allowed the appeal to remain on the docket for the limited purpose of allowing the Passeros to litigate the Rule 306a(5) motion in the trial court. When it became obvious that the Passeros had not taken advantage of the opportunity, the Court notified the Passeros of our intention to dismiss the appeal. The Passeros have not taken the steps necessary to protect their right to proceed under Rules 4.2 and 306a(5). Accordingly, we decline to delay resolution of this appeal any longer. Because the record before us demonstrates that the Passeros did not timely file their notice of appeal, we dismiss the appeal for want of jurisdiction.

December 19, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] In another document, the Passeros assert that the Court denied their request for a hearing on May 30. The record does not contain a written ruling to that effect. It is unclear whether the trial court affirmatively denied the request or simply did not respond.

[2] Since April 6 fell on a Saturday, the notice of appeal was actually due to be filed on the following Monday, April 8, 2002.

[3] The record before us does not reflect that the Passeros ever presented their request for a hearing to the trial court. However, the Passeros claim in documents filed with this Court that the trial court has refused to return telephone calls or correspond with them regarding their request for a hearing.

[4] Rule 4.2(c) provides: AAfter hearing the motion, the trial court must sign a written order that finds the date when the party or the party=s attorney first either received notice or acquired actual knowledge that the judgment or order was signed.@

[5] If the Passeros filed a petition for writ of mandamus at this late date, they would undoubtedly face an assertion that laches bars the requested relief. Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. RivercenterAssociates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993); Callahan v. Giles, 137 Tex. 571, 575, 155 S.W.2d 793, 795 (1941). Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. Rivercenter, 858 S.W.2d at 367. One such principle is that equity aids the diligent and not those who slumber on their rights. Id. Several courts, including this one, have denied mandamus because of unreasonable delay in filing the petition. See e.g., Rivercenter, 858 S.W.2d at 367; International Awards, Inc. v. Medina, 900 S.W.2d 934, 936 (Tex.App.--Amarillo 1995, orig. proceeding); Furr=s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex.App.--El Paso 1995, orig. proceeding).