AdvoCare International, L.P., v. Badgett, Bruce and Teresa Badgett



DISMISS; Opinion issued March 13, 2012

In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00917-CV
............................
ADVOCARE INTERNATIONAL, L.P., Appellant
V.
BRUCE BADGETT AND TERESA BADGETT, Appellees
.............................................................
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-02297-J
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Bridges

On August 4, 2010, appellees Bruce Badgett and Teresa Badgett
filed their motion to dismiss appellant Advocare International, L.P.'s
appeal for lack of jurisdiction. On August 24, 2010, this court deferred
consideration of appellees' motion to the submissions panel. This case
was submitted to the panel for consideration on December 14, 2011. For
the reasons stated below, we GRANT appellees' motion to dismiss for
lack of jurisdiction and DISMISS this appeal.
Background

The trial judge signed a final judgment on the verdict in favor
of appellees on April 20, 2010. On July 9, 2010, Appellant filed its
motion to extend post-judgment deadlines pursuant to rule 306a(4). The
trial court held an evidentiary hearing on appellant's motion on July
20, 2010. On July 21, 2010, the trial court announced the following
findings of fact: That on May 18, 2010, Defendant Advocare
International, L.P. acquired actual knowledge of the April 30, 2010

signing of the Final Judgment in these proceedings and that such actual
knowledge was acquired within twenty (20) days after the date Final
Judgment herein was signed on April 30, 2010.
The trial court also announced the following conclusion of law: That
based upon the foregoing findings of fact Tex. Rule Civ. Proc. 306a does
not apply.
On July 22, 2010, the trial court signed an order denying appellant's
motion to extend post-judgment deadlines. Appellant filed this appeal on
July 26, 2010.

Analysis

Rule 306a(4) states: 4. No notice of judgment. If within twenty
days after the judgment or other appealable order is signed, a party
adversely affected by it or his attorney has neither received the notice
required by paragraph (3) of this rule nor acquired actual knowledge of
the order, then with respect to that party all the periods mentioned in
paragraph (1) shall begin on the date that such party or his attorney
received such notice or acquired actual knowledge of the signing,
whichever occurred first, but in no event shall the period begin more
than ninety days after the original judgment or other appealable order
was signed.
See Tex. R. Civ. P. 306a(4) (emphasis added). The rule provides that the
party adversely affected by the judgment must prove the date it acquired
actual notice of the judgment. Thermex Energy Corp. v. Rantec Corp., 766
S.W.2d 402, 405 (Tex. App.-Dallas 1989, writ denied).
We review the trial court's findings of the date a party
received notice of judgment by the
standards of legal and factual sufficiency of the evidence. See

Footnote 1 See Nathan A. Watson v. Employers Mut. Cas. Co., 218 S.W.3d
797, 800-01 (Tex. App.-Fort Worth 2007, no pet.); Welborn Mortg. Corp.
v. Knowles, 851 S.W.2d 328, 331-32 (Tex. App.-Dallas 1993, writ denied).

A legal sufficiency challenge may only be sustained when (1) the
record discloses a complete absence of evidence of a vital fact, (2) the
court is barred by rules of law or of evidence from giving weight to the
only evidence offered to prove a vital fact, (3) the evidence offered to
prove a vital fact is no more than a mere scintilla, or (4) the evidence
establishes conclusively the opposite of a vital fact. Watson, 218
S.W.3d at 801 (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d
328, 334 (Tex. 1998)). The judge may accept or reject any witnesses'
testimony in whole or in part. Welborn, 851 S.W.2d at 332 (citing
Forscan Corp. v. Dresser Indus., Inc., 789 S.W.2d 389, 394 (Tex.
App.-Houston [14th Dist.] 1990, writ denied)). In addition, we may not
substitute our judgment for that of the trial court, as the fact finder,
even if we could reach a different result on the evidence. Welborn, 851
S.W.2d at 332 (citing Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.
App.-Dallas 1986, writ ref'd n.r.e.)).
In this case, the trial judge found appellant received actual
notice of the judgment on May 18, 2010, the date of a letter sent by
appellees' counsel (W.D. Masterson) to appellant's counsel (C. Brenton
Kugler). In that letter, Masterson states “the Badgetts are interested
in attempting to settle the . . . Advocare judgment.” During the

evidentiary hearing, Mr. Kugler admitted that he both received and read
this letter.
Therefore, we conclude there was more than a mere scintilla of
evidence that appellant received notice of the judgment on May 18, 2010.
See id. Because appellants failed to timely file its notice of appeal,
we have no jurisdiction. See Tex. R. App. P. 26.
We GRANT appellee's motion to dismiss for lack of jurisdiction
and DISMISS this appeal. Tex. R. App. P. 42.3.

DAVID L. BRIDGES
JUSTICE
100917F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADVOCARE INTERNATIONAL, L.P., Appellant
No. 05-10-00917-CVV.
BRUCE BADGETT AND TERESA BADGETT, AppelleesAppeal from the 191st
Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 07-
02297-J).
Opinion delivered by Justice Bridges, Justices O'Neill and Fillmore
participating.
Based on the Court's opinion of this date, this appeal is
DISMISSED. It is ORDERED that appellees Bruce Badgett and Teresa Badgett
recover their costs of appeal from appellant Advocare International,
L.P.
Judgment entered March 13, 2012.
/David L.
Bridges/
DAVID L. BRIDGES
JUSTICE
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Footnote 1
Appellant cites this Court to both legal and factual sufficiency
standards of review in its briefing. However, in its prayer for relief,
appellant requested only that this Court “reverse the trial court's
order establishing May 18, 2010 as the date [appellant] acquired actual
knowledge and render that July 7, 2010 is the date that [appellant]
acquired actual knowledge of the judgment.” During oral argument,

appellant acknowledged that it was requesting this Court make a finding,
as a matter of law, of the date on which appellant acquired actual
knowledge of judgment. Appellant, therefore, seeks a review of the
evidence only under a legal sufficiency standard.
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