      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00679-CV



                    Sandra Turbeville and Michael Turbeville, Appellants

                                                 v.

          Lorraine M. Dailey, Individually and d/b/a LMD Architects, PLLC;
Lorraine M. Dailey, Architect, PLLC; TBP Enterprises I, Ltd.; and TBP Enterprises, Inc.,
                        d/b/a Genesis Custom Homes, Appellees


    FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
         NO. CV06361, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Sandra and Michael Turbeville have filed a notice of appeal from an adverse

district court judgment.1 Appellees have moved to dismiss the appeal for want of subject-matter

jurisdiction, asserting that the Turbevilles filed their notice of appeal more than fifteen days

after the applicable deadline to perfect their appeal. See Tex. R. App. P. 26.3; Verburgt v. Dorner,

959 S.W.2d 615, 617 (Tex. 1997) (explaining that once the fifteen-day period for filing a motion for

extension of time to file notice of appeal has passed, “a party can no longer invoke the appellate

court’s jurisdiction”). Complaining that they did not receive timely notice of the judgment, the

Turbevilles have filed a motion purporting to seek relief under Texas Rule of Civil Procedure

306a(4) and an extension as permitted by the Texas Rules of Appellate Procedure. Concluding that



       1
         The judgment ordered that the Turbevilles take nothing on claims they had asserted against
appellees and awarded damages against the Turbevilles on a counterclaim asserted by one of
the appellees.
the Turbevilles are not entitled to relief and that we have no discretion but to dismiss their appeal,

we grant appellees’ motion and overrule the Turbevilles’ motion.

                The district court’s final judgment was based on an interlocutory no-evidence

summary judgment foreclosing some claims asserted by the Turbevilles and jury findings in a

subsequent trial on other claims asserted by the parties. Following the jury’s rendition of its verdict,

trial concluded on June 6, 2011. The district court signed the final judgment roughly one month

later, on July 6, 2011. On August 2, 2011—within thirty days after the date the judgment was

signed, i.e., timely—the Turbevilles filed a motion for new trial. See Tex. R. Civ. P. 329b(a)

(motion for new trial must be filed within thirty days after the judgment is signed). Under the

Texas Rules of Appellate Procedure, the Turbevilles’ timely filing of a new trial motion served to

extend their deadline to file their notice of appeal until October 4, 2011, the ninetieth day after

the judgment was signed. See Tex. R. App. P. 26.1(a)(1) (where timely new-trial motion is filed,

appellate deadline is the ninetieth day after the judgment is signed). But the Turbevilles did not file

their notice of appeal until October 24, at the earliest2—twenty days after the deadline. Thus, the

Turbevilles not only failed to comply with the appellate deadline in Rule 26.1(a)(1), but also missed

the fifteen-day window thereafter in which this Court would have had jurisdiction to grant an

extension of that deadline. See Verburgt, 959 S.W.2d at 617. Citing these reasons, appellees have

moved to dismiss the Turbevilles’ appeal for want of subject-matter jurisdiction.

                The Turbevilles have responded with a “verified motion to extend time to file

their notice of appeal.” In it, they request that we “find that the appellate deadlines ran from July 27,


        2
          The Turbevilles, through counsel who is based in Fredricksburg, Gillespie County, filed a
notice of appeal to our sister court who serves that area, the Fourth Court of Appeals, on October 24,
2011. On October 26, they filed an amended notice of appeal correcting the error. Appellees do not
dispute that the Turbevilles’ October 24 filing is the one relevant to our jurisdictional analysis.

                                                   2
2011,” rather than July 6, when the judgment was signed. If we do so, as the Turbevilles observe,

their new trial motion (timely under either start date) would have served to extend their appellate

deadline until the ninetieth day after July 27—October 25—as opposed to the ninetieth day after the

date the judgment was signed, October 4. See Tex. R. App. P. 26.1(a)(1). In turn, the Turbevilles’

October 24 notice of appeal would have been timely.3

               The Turbevilles purport to rely on paragraph 4 of Texas Rule of Civil Procedure 306a.

Paragraph 4 of Rule 306a is an exception to the general rule, stated in paragraph 1 of rule 306a,

that deadlines for filing post-judgment motions or notices of appeal begin to run on the date

the judgment is signed. See Tex. R. Civ. P. 306a(1), (4); see also Vaughn v. Drennon, 324 S.W.3d

560, 563 (Tex. 2010) (per curiam); John v. Marshall Health Services, Inc., 58 S.W.3d 738, 741

(Tex. 2001) (per curiam). Paragraph 4 states, in relevant part:


       If within twenty days after the judgment or other appealable order is signed, a party
       adversely affected by it or his attorney has neither received the notice required by
       paragraph (3) of this rule nor acquired actual knowledge of the order, then with
       respect to that party all the periods mentioned in paragraph (1) shall begin on the date
       that such party or his attorney received such notice or acquired actual knowledge of
       the signing, whichever occurred first . . . .


Tex. R. Civ. P. 306a(4). Paragraph 3 of Rule 306a requires that when a final judgment or other

appealable order is signed, “the clerk of the court shall immediately give notice to the parties”

of same by first-class mail. Id. R. 306a(3). The Turbevilles claim that the clerk failed to give this

required notice here. They attach an affidavit from Sandra Turbeville averring that she first learned

that the judgment had been signed on July 22, 2011, when she visited the district clerk’s office and



       3
          The same would be true of the October 26 amended notice of appeal, as it would fall within
the fifteen-day extension window that would follow the expiration of the October 25 deadline.

                                                  3
made inquiry.4 Sandra further indicates that she obtained a copy of the judgment and contacted her

counsel (who was in Arizona at the time) by telephone. According to Sandra, counsel advised that

he would return to the office on July 27 and instructed her to mail him a copy so he could review it.

The Turbevilles’ counsel verifies the same facts in the motion and adds that he first reviewed the

judgment upon his return to the office on July 27.

                 In the Turbevilles’ view, Rule 306a, paragraph 4, requires that we deem their

appellate deadlines to begin to run from July 27, 2011, the date on which their counsel reviewed

the judgment upon his return to the office. Their analysis is flawed in several respects.

                 To invoke the extension mechanism in Rule 306a(4), a party adversely affected

by a judgment must (1) comply with procedural requirements of paragraph 5 of Rule 306a, and

(2) prove it received notice of the judgment more than twenty days after it was signed. In re Lynd

Co., 195 S.W.3d 682, 685 (Tex. 2006) (citing Tex. R. Civ. P. 306a). The Turbevilles have not met,

and cannot meet, these requirements. Among other procedural defects, they have filed their motion

in this Court rather than the district court, and cannot possibly obtain relief there now.5 As for proof,



        4
            As previously noted, the case had been tried to a jury verdict a few weeks earlier.
        5
          Paragraph 5 of Rule 306a requires that the party alleging late notice of judgment file a
sworn motion with the trial court establishing the date the party or its counsel first learned of the
judgment and that this date was more than twenty days after the judgment was signed. Tex. R. Civ.
P. 306a(5); In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006). This motion, moreover, “must be
filed before the trial court’s plenary power—measured from the date of notice established under
Rule 306a(4)—expires.” In re Lynd Co., 195 S.W.3d at 685 (citing John v. Marshall Health Servs.,
58 S.W.3d 738, 741 (Tex. 2001) (per curiam)). Here, accepting the Turbevilles’ assertion that the
date of notice was July 27, the district court’s plenary power would have expired on November 9
(the date following the thirtieth day after their new trial motion would have been overruled by
operation of law). See Tex. R. Civ. P. 329b(c), (e). See also Grondona v. Sutton, 991 S.W.2d 90,
91 (Tex. App.—Austin 1998, pet. denied) (holding that “[e]ven if [appellant] had offered prima-facie
evidence during the court’s plenary power, he failed to obtain a ruling on his [Rule 306a] motion
within that period,” and that order signed after the plenary power expired was “of no effect”).

                                                   4
the Turbevilles’ verified motion and affidavit affirmatively negate that they could meet their burden

of proof. Specifically, the verified motion and affidavit establish that both Sandra Turbeville and

the Turbevilles’ attorney acquired actual knowledge of the judgment on July 22, 2011—only sixteen

days after the judgment was signed. Cf. Tex. R. Civ. P. 306a(4) (applying only if the “party . . . or

his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual

knowledge of the order” within twenty days after it was signed) (emphasis added), (5) (requiring

movant to prove that “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.”) (emphasis added). It is this date, July 22, 2011, the date on which

they acquired actual notice of the judgment, that is material and controlling under Rule of Civil

Procedure 306a(4)—not, as the Turbevilles suggest, the date when their attorney returned to his

office and reviewed the written judgment. See id. R. 306a(4).6 In short, the Turbevilles have not,

and cannot, show themselves entitled to relief under this rule.

               Absent relief under Rule 306a, paragraph 4, the Turbevilles’ appellate deadlines

began to run on the date the judgment was signed, July 6, 2011, making their notice of appeal too



       6
           Also immaterial to our analysis under Rule 306a(4) are various assertions by the
Turbevilles’ counsel regarding the underlying causes of the clerk’s failure to give notice. Even
taking these assertions as true, none would cure the fatal procedural and substantive defects in the
Turbevilles’ motion.

          We would further observe that this is not a case where any absence of the notice required
by Rule 306a, paragraph 3, deprived the Turbevilles of a reasonable opportunity to perfect their
appeal. After obtaining actual notice of the judgment on July 22, the Turbevilles filed a timely
motion for new trial, which served to extend their appellate deadline until October 4—giving them
over seventy days to file their notice of appeal, plus an additional fifteen days in which they
could have sought an extension. Similarly, even counting from July 27, the date on which counsel
reviewed the judgment, the Turbevilles had sixty-nine days to perfect their appeal, plus fifteen days
to seek an extension.

                                                  5
late even to invoke our jurisdiction to grant an extension of their appellate deadlines. See Tex. R.

App. P. 26.3; Verburgt, 959 S.W.2d at 617. Consequently, we must grant the appellees’ dismissal

motion, deny the Turbevilles’ extension motion, and dismiss the Turbevilles’ appeal for want of

subject-matter jurisdiction. See Tex. R. App. P. 42.3(a).




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Dismissed for Want of Jurisdiction

Filed: December 14, 2011




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