Bettie Buchanan, Independent Administratrix of the Estate of Johnnie Barton, Deceased; Barbara Lane Jefferson; Julia Lane Goodwin; and Bettie Barton Buchanan v. Robert Barton and Mary Henley, Co-Independent Executors of the Estate of W. A. Barton, Deceased; Robert Barton, Individually; and Dale Olson--Appeal from County Court at Law of Bastrop County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00432-CV
Bettie Buchanan, Independent Administratrix of the Estate of Johnnie Barton, Deceased;
Barbara Lane Jefferson; Julia Lane Goodwin; and Bettie Barton Buchanan, Appellants
v.
Robert Barton and Mary Henley, Co-Independent Executors of the Estate of W. A.
Barton, Deceased; Robert Barton, Individually; and Dale Olson, Appellees
FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY
NO. 90-1497-CCL, HONORABLE M. BENTON ESKEW, JUDGE PRESIDING
PER CURIAM

Appellants, Bettie Buchanan, independent administratrix of the estate of Johnnie Barton; Barbara Lane Jefferson; Julia Lane Goodwin; and Bettie Barton Buchanan, appeal the trial court's judgment dismissing their cause. Appellants disputed with appellees, Robert Barton and Mary Henley, co-independent executors of the estate of W. A. Barton, and Robert Barton, individually, the location of the line dividing two tracts of land. Appellants sued Barton and Henley in 1990 to establish their rights to the portion of land they claimed. Barton and Henley in turn sued appellee Dale Olson, whose survey determined the boundary on which they relied. On April 30, 1996, the trial court signed a judgment dismissing appellants' cause for want of prosecution.

In their first reply point of error, appellees Barton and Henley contend that the appeal is untimely. For the reasons discussed below, we agree.

On June 19, 1996, fifty days after the trial court signed its judgment of dismissal, attorney Dewitt Hale moved on behalf of Buchanan to reinstate the cause. Hale asserted in the motion that he first received notice of the April 30 judgment on June 13 and that Rule 306a conferred jurisdiction on the court to reinstate the cause. See Tex. R. Civ. P. 306a. The trial court held a hearing and, on June 26, 1996, signed an order denying reinstatement; in its order, the court found that Rule 306a applied to preserve Buchanan's opportunity to show good cause to reinstate.

The date the trial court signs a judgment ordinarily activates both the appellate timetable and the court's plenary power over its judgment. See Rule 306a(1), 329b(d), (e). In the usual case, a party must move to reinstate a cause within thirty days after the judgment is signed. Rule 165a(3). If no motion to reinstate is filed, the trial court loses the power to reinstate thirty days after signing the judgment. Rule 329b(d). Rule of Civil Procedure 306a provides an exception to the start of the procedural timetables when a party receives notice of the judgment more than twenty, but less than ninety, days after it was signed. Rule 306a(4). Rule of Appellate Procedure 5(b) provides an essentially parallel exception. See Tex. R. App. P. 5(b)(4). To benefit from the exception, the party must prove in the trial court, on sworn motion and notice, the date she or her attorney first received notice or acquired actual knowledge of the signing. Tex. R. Civ. P. 306a(5); Tex. R. App. P. 5(b)(5). If evidence at the hearing on the motion establishes the date of notice, the appellate timetable and the court's plenary power start from that date rather than the date the judgment was signed. Tex. R. Civ. P. 306a(4); Tex. R. App. P. 5(b)(4); Carrera v. Marsh, 847 S.W.2d 337, 342 (Tex. App.-- El Paso 1993, orig. proceeding).

Complying with the provisions of Rules 306a and 5 is a jurisdictional prerequisite. In re Simpson, 932 S.W.2d 674, 677 (Tex. App.--Amarillo 1996, no writ). The movant bears the burden to establish the applicability of the exception in the manner prescribed. If she does not, the trial court lacks jurisdiction to determine the date of notice and any order doing so is void. Id. See Memorial Hosp. v. Gillis, 741 S.W.2d 364, 365-66 (Tex. 1987).

The sworn motion serves the purpose of establishing a prima facie case of lack of timely notice, thereby reinvoking the trial court's jurisdiction for the limited purpose of holding a hearing to determine the date of notice. Carrera, 847 S.W.2d at 342. We first consider whether Hale's motion reinvoked the trial court's jurisdiction to hear evidence to determine the date of notice. Hale avers in his motion to reinstate that the district clerk sent a copy of the judgment to Buchanan's prior attorney, Walter Jefferson, on June 11. Jefferson faxed a copy to Hale on June 13. Hale states that he first received notice or acquired actual knowledge that the judgment was signed on June 13.

The exception in Rules 306a and 5 requires that neither the party nor her attorney receive notice within twenty days after the judgment was signed. Tex. R. Civ. P. 306a(4), (5); Tex. R. App. P. 5(b)(4), (5). Hale, in his motion to reinstate, addresses only his own receipt of notice; he does not say when Buchanan first received notice. By failing to negate the possibility that Buchanan received notice of the judgment within twenty days, the motion did not present a prima facie case of lack of timely notice and did not reinvoke the court's jurisdiction to hold a hearing. City of Laredo v. Schuble, 943 S.W.2d 124, 126 (Tex. App.--San Antonio 1997, orig. proceeding); Simpson, 932 S.W.2d at 678. The court's order, which contains the finding that Rule 306a applies, is therefore void.

On receiving the appellate transcript in this cause, the Clerk of this Court noted the lack of a finding of the date of notice and asked appellants to cure the defect. All appellants responded by moving the trial court on August 19, 1996, to find that they and Hale first acquired notice of the judgment on June 13. On August 30, the trial court held a hearing and signed an order in which it found that Buchanan and Hale first acquired actual knowledge or notice of the judgment on June 13. The question raised is whether appellants timely moved the trial court to determine the date of notice.

Neither Rule 306a nor Rule 5 states a time within which a party must file a motion asserting late notice of judgment. Several courts of appeals have held that a party must file such a motion within thirty days of acquiring notice. See Gonzalez v. Sanchez, 927 S.W.2d 218, 221 (Tex. App.--El Paso 1996, no writ); Montalvo v. Rio Nat'l Bank, 885 S.W.2d 235, 237 (Tex. App.--Corpus Christi 1994, no writ); Womack-Humphreys Architects, Inc. v. Barrasso, 886 S.W.2d 809, 816 (Tex. App.--Dallas 1994, writ denied). These courts read Rules 306a and 329b together, reasoning that Rule 306a determines the beginning of the procedural timetables, while Rule 329b determines their length. Gonzalez, 927 S.W.2d at 221; Montalvo, 885 S.W.2d at 237; Barrasso, 886 S.W.2d at 815-16. See Tex. R. Civ. P. 329b.

In Vineyard Bay Development Co. v. Vineyard on Lake Travis, this Court concluded that a party can file a motion asserting late notice of judgment more than thirty days after receiving notice. 864 S.W.2d 170, 172 (Tex. App.--Austin 1993, writ denied). In Vineyard Bay, however, the motion was filed during the trial court's plenary power, counted from the date of notice, which had been extended by a motion for new trial. See id. at 172 & n.1. In the case before us, appellants moved the trial court to find the date of notice on August 19, sixty-seven days after the asserted date of notice. The motion to reinstate, filed six days after the asserted date of notice and overruled on June 26, would have extended the court's plenary power for thirty days beyond June 26, or until July 26. Tex. R. Civ. P. 165a(3). The appellants thus filed their August 19 motion outside the court's plenary power, counted from the asserted date of notice. We determine that appellants filed their motion to determine the date of notice too late to invoke the court's jurisdiction to hold a hearing to find the date of notice. See Conaway v. Lopez, 843 S.W.2d 732, 733-34 (Tex. App.--Austin 1992, no writ) (party who failed to obtain finding of date of notice within trial court's plenary power, as extended by motion for new trial, was not entitled to substituted date of judgment). We agree with the Gonzalez, Montalvo, and Barrasso courts to the extent that Rules 306a and 329b should be read together, Rule 306a setting the beginning of the court's plenary power and Rule 329b determining its length. A party who seeks to benefit from a substituted date of judgment should not also enjoy an enlarged post-judgment period in which to assert the benefit.

We conclude that appellants failed to invoke the trial court's jurisdiction to find the date they received notice of the judgment. Because we must consider April 30, 1996, as the beginning of the time to perfect an appeal, appellants' cash deposit, made on July 12, came too late. See Tex. R. App. P. 41(a)(1). We therefore sustain reply point one. Having sustained this point, we need not address the parties' remaining points of error.

We dismiss the appeal for want of jurisdiction.

 

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Appeal Dismissed for Want of Jurisdiction

Filed: August 14, 1997

Do Not Publish

red actual knowledge that the judgment was signed on June 13.

The exception in Rules 306a and 5 requires that neither the party nor her attorney receive notice within twenty days after the judgment was signed. Tex. R. Civ. P. 306a(4), (5); Tex. R. App. P. 5(b)(4), (5). Hale, in his motion to reinstate, addresses only his own receipt of notice; he does not say when Buchanan first received notice. By failing to negate the possibility that Buchanan received notice of the judgment within twenty days, the motion did not present a prima facie case of lack of timely notice and did not reinvoke the court's jurisdiction to hold a hearing. City of Laredo v. Schuble, 943 S.W.2d 124, 126 (Tex. App.--San Antonio 1997, orig. proceeding); Simpson, 932 S.W.2d at 678. The court's order, which contains the finding that Rule 306a applies, is therefore void.

On receiving the appellate transcript in this cause, the Clerk of this Court noted the lack of a finding of the date of notice and asked appellants to cure the defect. All appellants responded by moving the trial court on August 19, 1996, to find that they and Hale first acquired notice of the judgment on June 13. On August 30, the trial court held a hearing and signed an order in which it found that Buchanan and Hale first acquired actual knowledge or notice of the judgment on June 13. The question raised is whether appellants timely moved the trial court to determine the date of notice.

Neither Rule 306a nor Rule 5 states a time within which a party must file a motion asserting late notice of judgment. Several courts of appeals have held that a party must file such a motion within thirty days of acquiring notice. See Gonzalez v. Sanchez, 927 S.W.2d 218, 221 (Tex. App.--El Paso 1996, no writ); Montalvo v. Rio Nat'l Bank, 885 S.W.2d 235, 237 (Tex. App.--Corpus Christi 1994, no writ); Womack-Humphreys Architects, Inc. v. Barrasso, 886 S.W.2d 809, 816 (Tex. App.--Dallas 1994, writ denied). These courts read Rules 306a and 329b together, reasoning that Rule 306a determines the beginning of the procedural timetables, while Rule 329b determines their length. Gonzalez, 927 S.W.2d at 221; Montalvo, 885 S.W.2d at 237; Barrasso, 886 S.W.2d at 815-16. See Tex. R. Civ. P. 329b.

In Vineyard Bay Development Co. v. Vineyard on Lake Travis, this Court concluded that a party can file a motion asserting late notice of judgment more than thirty days after receiving notice. 864 S.W.2d 170, 172 (Tex. App.--Austin 1993, writ denied). In Vineyard Bay, however, the motion was filed during the trial court's plenary power, counted from the date of notice, which had been extended by a motion for new trial. See id. at 172 & n.1. In the case before us, appellants moved the trial court to find the date of notice on August 19, sixty-seven days after the asserted date of notice. The motion to reinstate, filed six days after the asserted date of notice and overruled on June 26, would have extended the court's plenary power for thirty days beyond June 26, or until July 26. Tex. R. Civ. P. 165a(3). The appellants thus filed their August 19 motion outside the court's plenary power, counted from the asserted date of notice. We determine that appellants filed their motion to determine the date of notice too late to invoke the court's jurisdiction to hold a hearing to find the date of notice. See Conaway v. Lopez, 843 S.W.2d 732, 733-34 (Tex. App.--Austin 1992, no writ) (party who failed to obtain finding of date of notice within trial court's plenary power, as extended by motion for new trial, was not entitled to substituted date of judgment). We agree with the Gonzalez, Montalvo, and Barrasso courts to the extent that Rules 306a and 329b should be read together, Rule 306a setting the beginning of the court's plenary power and Rule 329b determining its length. A party who seeks to benefit from a substituted date of judgment should not also enjoy an enlarged post-judgment period in which to assert the benefit.

We conclude that appellants faile