                           NUMBER 13-18-00605-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG
____________________________________________________________

ALFREDO REVELES AND DORA REVELES,                                      Appellants,

                                         V.

GERMANIA FARM MUTUAL INSURANCE
ASSOCIATION AND JOSE LOPEZ,                        Appellees.
____________________________________________________________

          On appeal from the County Court at Law No. 4
                  of Cameron County, Texas.
____________________________________________________________

                        MEMORANDUM OPINION
   Before Chief Justice Contreras and Justices Benavides and Longoria
            Memorandum Opinion by Chief Justice Contreras

      Appellants Alfredo Reveles and Dora Reveles attempted to perfect an appeal from

a judgment entered by the County Court at Law No. 4 of Cameron County, Texas in trial

court cause number 2017-CCL-01297. We dismiss the appeal for want of jurisdiction.
                                        I. BACKGROUND

       On April 9, 2018, the trial court granted a post-appraisal motion for summary

judgment filed by appellees, Germania Farm Mutual Insurance Association and Jose

Lopez. On July 12, 2018, appellants filed a verified motion for reinstatement of the case

on grounds that they did not receive timely notice of the judgment. See TEX. R. CIV. P.

306a. Their motion for reinstatement read, in relevant part:

               4.      An order was apparently signed on April 11, 2018[1], granting
       Defendants’ Motion for Summary Judgment. However, this order was not
       entered into the Court’s docket, nor was it sent to the email Plaintiffs’
       counsel had provided on any filing. No written notice was provided to
       Plaintiffs or their counsel. No notice of a final order was sent by mail as
       required by Texas Rules of Civil Procedure 306a. See TEX. R. CIV. P.
       306a(3) (“When the final judgment or other appealable order is signed, the
       clerk of the court shall immediately give notice to the parties or their
       attorneys of record by first-class mail. . . .”).

              5.     On June 14, 2018, Plaintiffs sent Defendants a written
       demand to resolve the outstanding claim for fees and costs under the Texas
       Insurance Code. Defendants’ response refused to pay for damages
       included in the insurance code, stating that the Court had ruled in their favor
       and that the Court had lost plenary power. Prior to this email, Plaintiffs and
       their counsel had not received constructive or actual knowledge of any
       appealable order.

       ....

       12.     Under Rule 306a(4), if there is no notice of judgment within 20 days,
       a party may file a motion to reinstate 30 days from the date of actual notice,
       not to exceed 90 days from the date. See TEX. R. CIV. P. 306a(4). Here,
       Plaintiffs’ counsel acquired actual knowledge on June 18, 2018. Plaintiffs’
       motion to reinstate under Rule 306a is therefore timely.

(Internal citations omitted). On July 12, 2018, appellants also filed a motion for new trial,

or alternatively, for reconsideration of the summary judgment. On September 25, 2018,


       1 The clerk’s record indicates that the summary judgment was signed on April 9, 2018. This
discrepancy is not relevant to our analysis.
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the trial court granted appellant’s motion to reinstate but did not include a finding regarding

the date that appellants received notice of the judgment. That same day, the trial court

denied appellants’ motion for new trial.

          Appellants filed a notice of appeal on October 25, 2018, an amended notice of

appeal on October 29, 2018, and a second amended notice of appeal on November 1,

2018. On November 1, 2018, the Clerk of this Court notified appellants that it appeared

that their notice of appeal had not been timely perfected. The Clerk advised appellants

that the appeal would be dismissed if the defect was not corrected within ten days from

the date of receipt of the Court’s directive. The appellants did not respond to the Clerk’s

notice.

          On November 7, 2018, appellees filed an objection to the appellants’ second

amended notice of appeal. Appellees contended that appellants failed to timely perfect

their appeal insofar as they filed their notice of appeal one hundred and ninety-nine days

after the trial court signed the order granting the summary judgment and one hundred

and twenty-nine days after appellants received notice of the court’s order. Appellees

requested that we dismiss this appeal. Appellants did not respond to the Court’s notice

regarding the timeliness of their notice of appeal or appellees’ request that we dismiss

the case. However, appellants have subsequently filed three motions for extensions of

time to file their brief in this matter.

                                           II. APPLICABLE LAW

          Appellants have argued that they lacked timely notice that the trial court had signed

the summary judgment. Texas Rule of Civil Procedure 306a(3) requires the clerk of the


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court to provide notice regarding the entry of judgments or appealable orders. This rule

states, in relevant part:

       When the final judgment or other appealable order is signed, the clerk of
       the court shall immediately give notice to the parties or their attorneys of
       record by first-class mail advising that the judgment or order was signed.
       Failure to comply with the provisions of this rule shall not affect the periods
       mentioned in paragraph (1) of this rule, except as provided in paragraph (4).

TEX. R. CIV. P. 306a(3). Paragraph one, as referenced in the rule, provides that the

deadline for filing post-judgment motions, such as a motion for new trial or motion to

reinstate a case, begins to run on the date the judgment is signed. See id. R. 306a(1).

Paragraph four addresses what happens, as here, when a party does not receive notice

of a judgment. See id. R. 306a(4). Rule of Civil Procedure 306a(4) provides that when

more than twenty days have passed between the date that the trial court signs the

judgment or appealable order and the date that a party receives notice or acquires actual

knowledge of the signing, the periods referenced in paragraph one will begin on the earlier

of the date the party received notice or acquired actual knowledge of the signing, and in

no event will the period begin more than ninety days after the judgment was signed. TEX.

R. CIV. P. 306a(4); see TEX. R. APP. P. 4.2(a)(1); Pilot Travel Ctrs., LLC v. McCray, 416

S.W.3d 168, 176 (Tex. App.––Dallas 2013, no pet.); see also John v. Marshall Health

Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001). To benefit from the extension of time

contemplated by Rule 306a, the movant must prove, on sworn motion and notice, the

date on which it first received notice or acquired actual knowledge of the judgment—a

date that must be more than twenty days after the date the order was signed. See TEX.

R. CIV. P. 306a(5); see also TEX. R. APP. P. 4.2(a)(1),(b).


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                                        III. ANALYSIS

       The trial court signed the judgment subject to appeal on April 9, 2018. Based

upon the record presented, appellants received notice of the judgment on June 18, 2018.

Appellants filed their motion to reinstate and motion for new trial on July 12, 2018. The

trial court granted the motion to reinstate but denied the motion for new trial. The trial

court did not make a written finding of the date that the appellants first either received

notice or acquired actual knowledge that the judgment was signed. See In re Lynd Co.,

195 S.W.3d 682, 686 (Tex. 2006) (orig. proceeding) (discussing the difference between

Texas Rule of Civil Procedure 306a and Texas Rule of Appellate Procedure 4.2).

       Here, there is evidence to imply from the trial court’s order of reinstatement that

appellants received notice that the judgment had been signed on June 18, 2018.

Appellants’ verified motion for reinstatement specifically averred that they “acquired

actual knowledge on June 18, 2018.” Because June 18, 2018 was more than twenty,

but less than ninety-one days after the judgment was signed on April 9, 2018, and

because appellants timely filed their Rule 306a sworn motion and accompanying motion

for new trial on July 12, 2018, within thirty days of first receiving notice of the judgment

on June 18, 2018, Rule 306a operated to extend the trial court’s plenary power to grant

their motion to reinstate or motion for new trial. See id. Thus, June 18, 2018 served as

the date from which all post-judgment deadlines and the trial court’s plenary power began

to run. See id.

       However, in its order granting the motion to reinstate and its order denying the

motion for new trial, the trial court did not make a finding as to the date appellants obtained


                                              5
notice of the judgment. For purposes of appellate jurisdiction, Texas Rule of Appellate

Procedure 4.2(c) requires that the trial court sign a written order that finds the date when

the party or the party’s attorney first either received notice or acquired actual knowledge

that the judgment was signed. See TEX. R. APP. P. 4.2(c); Nedd-Johnson v. Wells Fargo

Bank, N.A., 338 S.W.3d 612, 613 (Tex. App.—Dallas 2010, no pet.). Without the trial

court order and finding required by Rule 4.2(c), the time for filing a notice of appeal of the

April 9, 2018 judgment was not extended. See TEX. R. APP. P. 4.2(c); Nedd-Johnson,

338 S.W.3d at 613; see also Johnson v. Linebarger Goggan Blair & Sampson, LLP, No.

01–15–00950–CV, 2017 WL 1173886, at *3 (Tex. App.–Houston [1st Dist.] Mar. 30, 2017,

no pet. h.) (mem. op.). In the absence of a finding from the trial court of the date of actual

notice, the period for filing a notice of appeal of the judgment began on April 9, 2018, the

date the summary judgment was signed. See TEX. R. APP. P. 4.2(c) & 26.1; Nedd-

Johnson, 338 S.W.3d at 613; see also Smith v. Aldine Indep. Sch. Dist., No. 01-17-00700-

CV, 2017 WL 5623579, at *1 (Tex. App.—Houston [1st Dist.] Nov. 21, 2017, pet. denied)

(mem. op.).

       In the absence of this order and finding, we lack jurisdiction over the attempted

appeal. See Mem’l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam);

Grondona v. Sutton, 991 S.W.2d 90, 92 (Tex. App.–Austin 1998, pet. denied); see also

Smith, 2017 WL 5623579, at *1. And, even if appellants had complied with applicable

procedures, the extension of time provided under the rules would still be insufficient to

make their notice of appeal timely. Stated otherwise, even if we utilize June 18, 2018 as

the date upon which appellants first received notice of the judgment, appellant’s notice of


                                              6
appeal was untimely. The notice of appeal must be filed within thirty days after the

judgment or other appealable order is signed when appellant has not filed a timely motion

for new trial, motion to modify the judgment, motion to reinstate, or request for findings of

fact and conclusion of law. See TEX. R. APP. P. 26.1. The notice of appeal must be filed

within ninety days after the judgment is signed if the appellant has filed a qualifying post-

judgment motion. See id. Appellants filed a motion for new trial, and accordingly, the

notice of appeal was due ninety days after June 18, 2018, or September 16, 2018. See

id. The notice of appeal was not filed until October 25, 2018. Appellants’ notice of

appeal was indisputably late.

                                      IV. CONCLUSION

       The Court, having examined and fully considered the second amended notice of

appeal, the record before this Court, and appellee’s motion to dismiss, is of the opinion

that we lack jurisdiction over this appeal. Accordingly, we grant appellees’ motion to

dismiss.   We deny appellants’ motions for extension of time to file their brief.        We

dismiss this appeal for want of jurisdiction. All other pending motions, if any, are likewise

dismissed.

                                                                DORI CONTRERAS
                                                                Chief Justice

Delivered and filed the
14th day of February, 2019.




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