STEVE RAY NIXON, ET AL. v. OSCAR A. KNIGHT--Appeal from 92nd District Court of Hidalgo County

NUMBER 13-04-228-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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STEVE RAY NIXON, ET AL., Appellants,

v.

OSCAR A. KNIGHT, Appellee.

____________________________________________________________________

On appeal from the 92nd District Court

of Hidalgo County, Texas.

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MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion Per Curiam

Appellants, Steve Ray Nixon, et al., attempted to perfect an appeal from a judgment entered by the 92nd District Court of Hidalgo County in cause number C-869-01-A. A jury trial was held in April 2003. Judgment in this cause was signed on February 6, 2004. The record does not show that any post-judgment motions were filed. Pursuant to Texas Rule of Appellate Procedure 26.1, appellants notice of appeal was due on March 8, 2004, but was not filed until May 7, 2004.

On May 12, 2004, the Clerk of this Court gave appellants notice of this defect. Appellants were advised that if the defect was not corrected within ten days from the date of receipt of this Court s letter, the appeal would be dismissed. Appellants responded to the Court s notice on June 11, 2004. According to appellants, the trial court signed a final judgment on February 6, 2004; however, this judgment was lost, and no party was notified that a judgment had been signed. The trial court signed another final judgment on April 2, 2004, but back-dated the judgment to February 6, 2004. Appellants allegedly filed a motion for new trial and notice of appeal based on this new judgment.

On June 22, 2004, the Clerk of this Court again notified appellants that the record failed to show that appellants had complied with rule 306a of the rules of civil procedure and that the record failed to show that a motion for new trial had been filed. Appellants were again advised that if the defect was not corrected within ten days from the date of receipt of this Court s letter, the appeal would be dismissed. Appellants response to this notice fails to establish that this Court has jurisdiction over their appeal.

Under the appellate rules, when a party fails to receive notice of an appealable order or judgment within twenty days after the judgment or order was signed, the time periods for appeal begin 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); see also Tex. R. Civ. P. 306a(4). However, the application of this rule is not automatic. The procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a(5). See Tex. R. Civ. P. 306a(4). Under rule 306a(5), the party adversely affected by the lack of notice is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.

In the instant case, no motion under rule 306a(5) was ever filed in the trial court. The trial court did not make any affirmative finding regarding the date of notice and did not sign a written order stating the same as required by appellate rule 4.2(c). Tex. R. App. P. 4.2(c). This Court has held that compliance with the requirements of rule 306a(5) is mandatory before the appellate deadlines may be extended. See Koch Gathering Systems v. Harms, 946 S.W.2d 453, 453 (Tex. App. Corpus Christi 1997, writ denied).

The Court, having examined and fully considered the documents on file, is of the opinion that the appeal should be dismissed for want of jurisdiction. If appellants did not receive timely notice of the trial court judgment, they could have extended the deadlines for appeal by following the procedures set out in rule 306a. See Tex. R. Civ. P. 306(a)(4)-(5). Because appellants failed to follow the procedures for establishing late notice of the judgment, the deadline for perfecting the appeal was not extended. Accordingly, the appeal is hereby DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Memorandum Opinion delivered and

filed this the 28th day of April, 2005.