Dale L. Vaughn v. Michael J. Sawyer and Sid L. Harle--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00297-CV
Dale L. VAUGHN,
Appellant
v.
Michael J. SAWYER and Sid L. Harle,
Appellees
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-15616
Honorable Martha Tanner, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 11, 2003

DISMISSED FOR LACK OF JURISDICTION

Appellant attempts to appeal the trial court's interlocutory order granting Sid L. Harle's plea to the jurisdiction and dismissing all of appellant's claims against Harle. An appeal from such an interlocutory order is accelerated. See Tex. R. App. P. 28.1; Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2003). The trial court signed the order on December 17, 2002. Because this is an accelerated appeal, the notice of appeal was due on January 6, 2003. See Tex. R. App. P. 26.1(b). A motion for extension of time to file the notice of appeal was due on January 21, 2003. See Tex. R. App. P. 26.3. Appellant filed a notice of appeal on April 21, 2003 and did not file a motion for extension of time. We, therefore, ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.

Appellant responded that he did not receive notice of the order until January 21, 2003. On January 23, 2003, he filed a motion under Texas Rule of Civil Procedure 306a, seeking to modify the date of the order. In John v. Marshall Health Services, Inc., 58 S.W.3d 738, 741 (Tex. 2001), the supreme court held that a party may file a motion to extend postjudgment deadlines under rule 306a at any time within the trial court's plenary jurisdiction. The trial court's plenary jurisdiction is measured from the date determined under rule 306a(4), that is, "the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing," as long as such date was more than twenty days after the judgment was signed. Id. (quoting rule 306a(4)). The trial court has not ruled on appellant's motion.

Because the trial court has not ruled on appellant's rule 306a motion, we would normally abate the appeal and order the trial court to hold a hearing in accordance with rule 306a to determine the date on which appellant received notice or acquired actual knowledge of the signing of the order. Here, however, there is no need to abate the appeal. Appellant claims he received notice of the order on January 21, 2003. Using that date, his notice of accelerated appeal was due on February 10, 2003. See Tex. R. App. P. 26.1(b) (requiring that appellant to file notice of accelerated appeal within twenty days after judgment or order is signed). Appellant did not file his notice of appeal until April 21, 2003. Even using appellant's date, his notice of appeal was untimely.

Appellant is incorrect in his assertion that his deadline for filing notice of an accelerated appeal was extended by filing a motion to modify the judgment and request for findings of fact and conclusions of law. Such motions do not extend the appellate timetable in accelerated appeals. See Tex. R. App. P. 28.1 (stating that filing motion for new trial will not extend time to perfect appeal). Compare Tex. R. App. P. 26.1(a) (allowing deadline to be extended by ninety days in a regular appeal), with id. 26.1(b) (providing that in accelerated appeal, party must file notice of appeal within twenty days).

Because appellant's notice of appeal was untimely, we dismiss this appeal for lack of jurisdiction.

PER CURIAM