                                 NO. 12-04-00084-CV


                        IN THE COURT OF APPEALS


           TWELFTH COURT OF APPEALS DISTRICT


                                    TYLER, TEXAS

FIDELITY AND GUARANTY
INSURANCE CO.,                                    §   APPEAL FROM THE 145TH
APPELLANT


V.                                                §   JUDICIAL DISTRICT COURT OF

DREWERY CONSTRUCTION CO., INC.,
APPELLEE                                          §   NACOGDOCHES COUNTY, TEXAS

                                   MEMORANDUM OPINION

        On January 7, 2004, the trial court granted a default judgment against Appellant Fidelity &
Guaranty Insurance Company. On March 12, 2004, Appellant filed a motion for new trial, which
was denied by order signed on March 19, 2004. On March 22, 2004, Appellant filed a notice of
appeal from the default judgment.
       On March 29, 2004, this Court notified Appellant, pursuant to rule of appellate procedure
42.3, that its notice of appeal was not timely filed and there was no timely motion for extension of
time to file the notice as permitted by rule of appellate procedure 26.3. Appellant was further
notified that the appeal would be dismissed unless, on or before April 8, 2004, the information was
amended to show the jurisdiction ofthis Court. In response to our letter, Appellant informed us that
it did not receive notice of the signing ofthe default judgment until more than twenty days after the
judgment was signed. Appellant further informed us that it had filed a motion pursuant to rule of
civil procedure 306(a)(5) to establishtheoperative dateof thejudgment. However, Appellant stated
that the trial court did not sign a written order, as required by rule of appellate procedure 4.2(c),
findingthe datewhen Appellantor Appellant's attorneyfirst eitherreceived notice or acquiredactual
knowledge that the judgment was signed. Accordingly, we abate the appeal and remand the cause
for a hearing to provide Appellant an opportunity to obtain the requisite finding and order.
         The parties' attorneys are directed to contact the trial court coordinator to set the hearing date
and to notify all parties and the court reporter of such date. The hearing shall be set for a date no
later than sixty days from the date ofthis opinion. The trial court coordinator shall advise the Clerk
of this Court of the hearing date as soon as it is set.
         The trial judge shall have a court reporter record the hearing and shall make findings of fact
and conclusions of law. A supplemental record from the hearing and the trial judge's findings and
conclusions shall be sent to this Court no later than fifteen days after the date of the hearing. No
later than the date for filing the reporter's record, the clerk ofthe trial court shall file a supplemental
record including the trial court's order finding the date of notice.
         The appeal is abated, treated as a closed case, and removed from this Court's active docket.
The appeal will be reinstated when the supplemental record, the trial judge's findings of fact and
conclusions of law, and the order are filed here.

         Appeal abated.

                                                                     SAM GRIFFITH
                                                                           Justice


Opinion delivered May 12, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.




                                                    (PUBLISH)
                                               ORDER


                                              MAY 12, 2004



                                       NO. 12-04-00084-CV


                  FIDELITY AND GUARANTY INSURANCE COMPANY,
                                                 Appellant
                                                     V.

                           DREWERY CONSTRUCTION CO., INC.,
                                                 Appellee

                           Appeal from the 145th Judicial District Court
                     of Nacogdoches County, Texas. (Tr.Ct.No. CI 9,776-2003)

                        THIS CAUSE is Abated and Remanded to the trial court for a hearing to
find the date when Appellant or Appellant's attorneyfirst either received notice or acquired actual
knowledge that the judgment was signed. The parties' attorneys are directed to contact the trial court
coordinator to set the hearing date and to notify all parties and the court reporter of such date. The
hearing shall be set for a date no later than sixty days from the date of this order. The trial court
coordinator shall advise the Clerk of this Court of the hearing date as soon as it is set.
                        The trial judge shall have a court reporter record the hearing and shall make
findings of fact andconclusions of law. Asupplemental record from thehearing andthetrial judge's
findings and conclusions shall be sent to this Court no later than fifteen days after the date of the
hearing. The trial court shall also sign an order stating the date of notice as required by rule of
appellateprocedure 4.2(c). No later than the date for filingthe reporter's record, the clerk ofthe trial
court shall file a supplemental record including the trial court's order finding the date of notice.
                        The appeal is Abated, treated as a closed case, and removed from this
Court's active docket. The appeal will be reinstated when the supplemental record and the trial
judge's findings of fact and conclusions of law, and the order are filed here.
                       Sam Griffith, Justice.
                       Panel consistedof Worthen, C.J., Griffith, J., and DeVasto, J.
