      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00618-CV



                                   Barbara A. Wright, Appellant

                                                   v.

                                Estate of Billy R. Wright, Appellee


          FROM THE COUNTY COURT AT LAW NO. 2 OF TOM GREEN COUNTY
         NO. 04P149-L2, HONORABLE PENNY ANNE ROBERTS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                On July 10, 2007, the trial court signed the final judgment finding that appellant

Barbara Wright owed the estate of Billy R. Wright more than $65,000. On August 14, 2007, Wright

filed a verified motion under rule 306a of the rules of civil procedure, asserting that she did not get

actual notice of the judgment until August 13, when her attorney, Jeffrey Lisson, checked the court’s

website and discovered that the judgment had been signed. See Tex. R. Civ. P. 306a(5). On

August 28, the trial court held a hearing on Wright’s motion. During that hearing, the court heard

testimony from Lisson, the County Clerk, and an employee of the clerk’s office. The testimony

established that the County Clerk’s Office in Tom Green County does not mail copies of judgments

to local attorneys. Instead, the clerk’s office places copies of an order or judgment, labeled with each

attorney’s name, in a basket in the office, and the attorneys or their runners come to the clerk’s office

to retrieve the copies from the basket; Lisson’s law firm has a runner who checks the box for the firm
every day. Lisson testified that he had been practicing in the county for more than four years and that

he knew of and participated in this practice. He also testified that on June 6, the trial court sent a

letter stating it was ruling in favor of appellee. On June 13, appellee sent a proposed judgment to

Lisson and the trial court. Lisson checked the court’s website for several weeks after receiving the

proposed judgment but then stopped checking and assumed he would get a copy when it was signed.

               At the conclusion of the hearing, the trial court stated that it was going to “deny”

Wright’s motion. That afternoon, Wright filed a document entitled, “Notice of Filing,” “giv[ing]

notice that had her Motion to Set Date For Periods to Run been granted, she would have requested

Findings of Fact and Conclusions of Law, as shown by the document attached hereto, as well as a

Notice of Appeal of the Court’s July 10, 2007 Judgment.” On September 24, the trial court signed

an order finding that Wright or her attorney acquired actual notice of the judgment on July 13.

On October 1, Wright filed a notice of appeal from “the Order Denying Motion to Set Dates for

Periods to Run,” signed September 24. The appeal proceeded from that notice, and Wright filed a

brief arguing that the trial court erred in denying her motion under rule 306a and asking this Court

to reverse the trial court’s order and require the court to provide findings of fact and conclusions of

law and to allow Wright to appeal from the July 10 judgment. Appellee filed its brief on January

16, 2008, arguing that the September 24 order was not appealable separately from the July 10

judgment order, which Wright had not appealed. Appellee further argued that Wright’s notice of

appeal was untimely even if measured from August 13, Wright’s asserted date of notice, and that

because she had not appealed the July 10 order, any relief on appeal would be of no practical

benefit to Wright.

               On February 7, Wright filed a motion to amend her notice of appeal asking that we

allow her to appeal from both the September 24 order and the July 10 order. She argues that the

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record shows that she intended all along to appeal from the July 10 order and that her notice of

appeal was a bona fide attempt to invoke this Court’s jurisdiction over an appeal of the July 10 order.

                Assuming without deciding that the trial court should have granted Wright’s rule 306a

motion to allow appellate deadlines to run from August 13, Wright did not file any post-judgment

motions that would have extended the deadline to perfect an appeal until October 1.1 Wright’s notice

that she “would have requested” findings of fact, even though it was accompanied by an exhibit

showing what that request would have been, is not a request for findings that would extend the

appellate deadline for ninety days. See Tex. R. App. P. 26.1(a); Tex. R. Civ. P. 296 (request must

be titled “Request for Findings of Fact and Conclusions of Law” and filed within twenty days of

judgment; clerk “shall immediately call such request to the attention of” trial court).

                Furthermore, even if we were to allow the “would have requested” notice to amount

to a request for findings of fact that could extend the appellate deadline for ninety days, in her notice

of appeal Wright explicitly stated that she was appealing from the trial court’s September 24 order

overruling her rule 306a motion. After a party has filed her brief, she may amend her notice of

appeal only with leave of court. Tex. R. App. P. 25.1(f). A party may amend her notice of appeal

to correct “a defect or omission.” Id. “However, Rule 25.1(f) does not permit an amendment to add

an entirely different order from which the appeal is taken.” Rainbow Group, Ltd. v. Wagoner,

219 S.W.3d 485, 492 (Tex. App.—Austin 2007, no pet.); see also Ward v. Parham, 198 S.W.3d 861,

863 (Tex. App.—Texarkana 2006, no pet.) (party’s notice of appeal was limited to rule 306a order,




        1
           Assuming that Wright or her attorney did not learn of the judgment until August 13, she
still had time to file a notice of appeal from the judgment within the fifteen-day window for an
extension of time under rule 26.3. See Tex. R. App. P. 26.3.

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which is not separately appealable; even if party could amend notice of appeal to add different order,

appellate deadline began to run from asserted date of notice).

               To allow Wright to appeal from the July 10 order, we would have to: allow a notice

of appeal taken solely from an order on a rule 306a motion, which is not a separately appealable

order, see Ward, 198 S.W.3d at 863; hold that a notice that Wright “would have filed” a request for

findings of fact amounts to an actual request for findings of fact such that it extended to ninety days

the deadline to perfect appeal, see Tex. R. App. P. 26.1(a); and then grant Wright’s motion to amend

her notice of appeal, filed nearly seven months after the order was signed, and allow her amended

notice of appeal from an entirely new order to refer back to her original notice of appeal, something

the rules do not allow, see Rainbow Group, 219 S.W.3d at 492. This we cannot do.

               As noted earlier, even if we assume that Wright’s rule 306a motion should have been

granted, that holding would not give Wright the benefit or remedy she seeks. See Save our Springs

Alliance v. City of Austin, 149 S.W.3d 674, 681 (Tex. App.—Austin 2004, no pet.) (“A case

becomes moot when . . . one seeks a judgment on some matter that, when rendered for any reason,

cannot have any practical legal effect on a then-existing controversy.”). Wright’s attempted appeal

from the rule 306a order is moot and we thus lack jurisdiction over it. We deny Wright’s motion to

amend her notice of appeal and dismiss the appeal.


                                               __________________________________________

                                               David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Dismissed for Want of Jurisdiction

Filed: April 18, 2008

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