Medical Arts Clinic, P.A. v. South Texas Provider Service, Inc.--Appeal from County Court at Law No 2 of Nueces County

NUMBER 13-00-068-CV 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

___________________________________________________________________

MEDICAL ARTS CLINIC, P.A., Appellant,

v.

SOUTH TEXAS PROVIDER SERVICE, INC., Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 2
of Nueces County, Texas.

____________________________________________________________________

O P I N I O N
Before Justices Hinojosa, Castillo, and Amidei(1)
Opinion by Justices Castillo

A no-answer default judgment was entered against appellant Medical Arts Clinic, P.A. on November 3, 1999. Notice of the judgment was not sent out until twenty-seven days after the judgment was signed. On December 16, 1999, forty-three days after the entry of the default judgment, a motion for new trial was filed by appellant, which was later heard and denied. On January 19, 2000, some seventy-seven days after the original default, appellant filed a notice of appeal. This Court informed appellant that its notice was not timely and gave appellant ten days to correct the defective notice. Appellant filed a "Motion For Leave to Correct Defect in Record and Proceed with Appeal" in this Court. Appellant took no action in the trial court.

Texas Rule of Civil Procedure 306(a) Requirements

The Texas Rules of Civil Procedure provide that the date a judgment is signed as shown of record shall determine the periods for the trial court's plenary power. Tex. R. Civ. P. 306a(1). The rules also mandate the court clerk to send notice of the judgment to the parties or their attorneys immediately. Tex. R. Civ. P. 306a(3). If a party has not received notice of the signing of a judgment within twenty days of its signing, nor had actual knowledge thereof, the relevant periods shall begin on the date the party or his attorney received or acquired actual notice, but in no event shall such period begin more than ninety days after the date of the signing of the original judgment. Tex. R. Civ. P. 306a(4). In order to establish the application of paragraph four to a particular case, the affected party must prove in the trial court, on sworn motion and notice, the date on which notice or actual knowledge of the judgment was received. Tex. R. Civ. P. 306a(5).

Texas Rule of Appellate Procedure 4.2 Requirements

The Texas Rules of Appellate Procedure provide that where there is no notice of an appealable order or judgment to a party within twenty days after the judgment or order was signed, the time periods applicable for appeal, which would include the deadline for filing notice of appeal, shall begin on the date on which notice was received or actual knowledge of the signing was acquired. Tex. R. App. P. 4.2(a). However, the application of this rule is not automatic. Subsections (b) and (c) of this same rule specifically provide that in order to obtain the additional time allowed by subsection (a): 1) the affected party must comply with the procedure outlined in Tex. R. Civ. P. 306a(5); and 2) the trial court, after hearing such motion, must sign a written order which affirmatively finds the date of notice or actual knowledge. Tex. R. App. P. 4.2(b) and (c).

Discussion

In the instant case, no motion under Tex. R. Civ. P. 306a(5) was ever filed in the trial court. The trial court never made any affirmative finding of the relevant date nor signed a written order stating the same as required by Tex. R. App. P. 4.2(c). This Court has constantly held that compliance with the dictates of Tex. R. Civ. P. 306a(5) are mandatory before deadlines under Tex. R. Civ. P. 306a and the rules of appellate procedure may be extended. Koch Gathering Systems v. Harms, 946 S.W.2d 453, 453 (Tex. App. -- Corpus Christi 1997, no pet.); Montalvo v. Rio Nat'l Bank, 885 S.W.2d 235, 237 (Tex. App. -- Corpus Christi 1994, no pet.). As appellant has not complied with the dictates of Tex. R. Civ. P. 306a(5) required by Tex. R. App. P. 4.2(b), the expansion of the time limitations of Tex. R. App. P. 4.2(a) were never effectuated. Accordingly, appellant is bound by the time limits of Texas Rule of Appellate Procedure 26. In order for this Court to have acquired jurisdiction, appellant must either have filed a notice of appeal within thirty days of the judgment or filed a notice of appeal within ninety days of the judgment if a timely motion for new trial was filed. Tex. R. App. P. 26.1.

Conclusion

Appellant's motion for new trial, filed forty-four days after judgment, was untimely and did not extend the deadline for the filing of its notice of appeal. Notice of appeal was then due thirty days after the entry of judgment. Appellant's notice of appeal, filed seventy-seven days after the entry of judgment, was therefore also untimely and thus confers no jurisdiction on this Court. We deny appellant's "Motion for Leave to Correct Defect in Record and Proceed with Appeal" and dismiss this appeal for want of jurisdiction.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 19th day of April, 2001.

1. Senior Justice Maurice Amidei assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).