Opinion issued August 26, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00613-CV
                           ———————————
                           MINH TRAN, Appellant
                                       V.
 HONG KONG DEVELOPMENT CORP. A/K/A HONG KONG CITY MALL,
                      Appellee


                   On Appeal from the 333rd District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-23,479


                       MEMORANDUM OPINION

      Minh Tran is appealing the trial court’s take-nothing-judgment rendered on a

jury verdict in his slip-and-fall case against Hong Kong Development Corp. In six

issues, Tran contends that the trial court erred in granting HKDC’s motion to

extend the post-judgment deadlines based on Texas Rule of Civil Procedure 306a,
and that the trial court erred when it denied his post-trial motion to vacate the

judgment. Finding no error in the trial court’s judgment, we affirm.

                                   Background

        Tran slipped and fell while visiting HKDC’s shopping mall in July 2008.

Two months later, Tran made a demand against HKDC for injuries he sustained as

a result of the fall. HKDC’s insurer investigated, interviewed witnesses, reviewed

video surveillance of the incident, and ultimately denied the claim in October

2008.

        Six months later, Tran sued HKDC in district court for premises liability,

alleging that he suffered a concussion after he slipped on a puddle of water on the

floor of the shopping mall caused by a leak in the roof that HKDC had failed to

repair, and that HKDC failed to either warn him of the danger posed by the puddle

on the floor or correct the danger. Tran served HKDC through its registered agent,

Dan Nip.

        When HKDC failed to file an answer or otherwise make an appearance in

the case, Tran moved for default judgment and set the motion for submission. The

certificates of service indicate that Tran sent copies of the motion and notice to

HKDC via its registered agent, Nip, by certified mail, return receipt requested and

by regular mail on July 21, 2009. The trial court granted the motion on August 17,




                                         2
2009, and awarded Tran nearly $6 million in damages (including $2 million in

exemplary damages), plus post-judgment interest.

      On October 19, 2009, HKDC filed a motion to extend the appellate

deadlines pursuant to Texas Rule of Civil Procedure 306a(5), attaching affidavits

in support, including one from its property manager and authorized representative,

James Duong. James testified in his affidavit that he is HKDC’s property manager

and its “authorized representative.” He further testified that he receives all of the

mail addressed to HKDC as part of his duties as property manager and that HKDC

did not acquire actual knowledge of the default judgment until October 13, 2009––

the date James received an October 8, 2009 letter from Tran’s counsel attempting

to collect on the judgment. James further testified that HKDC had not received a

copy of the signed judgment, or otherwise received any other form of official

notice of the judgment from the clerk’s office prior to that date.

      HKDC also attached affidavits from its attorney in support of the motion in

which the attorney testified that he did not know about the default judgment until

HKDC’s insurance carrier hired his firm to represent HKDC in this matter on

October 14, 2009. HKDC’s attorney also testified that he and his associate had

contacted Nip and Nip told them that he first learned of the default judgment

sometime between October 9, 2009 and October 13, 2009, when he received

the October 8, 2009 letter from Tran’s counsel. Nip also informed him that he did



                                          3
not receive any notice of the default judgment from the district clerk’s office

prior to receiving the October 8, 2009 letter, and that he had no communications

with Tran’s counsel regarding entry of a judgment. Although Nip initially

agreed to sign an affidavit attesting to those facts, he subsequently informed

counsel that he had changed his mind and he indicated that counsel should speak to

James, HKDC’s property manager, “about the potential value of the affidavit” to

HKDC, and that he would not sign the affidavit unless he received substantial

compensation for his efforts.

       On October 22, 2009, HKDC filed an original answer, as well as a motion to

set aside the default judgment, motion for new trial, or alternative motion for

remittitur.

       On November 18, 2009, HKDC filed a reply to Tran’s response to the Rule

306a motion with additional affidavits, including one from HKDC’s sole owner,

Ha Duong, James’s mother. Like her son, Ha testified that she did not acquire

actual knowledge of the default judgment until October 13, 2009, when she

received a letter from Tran’s counsel. According to Ha, HKDC was not then

represented by an attorney. She further testified that HKDC had not received a

copy of the signed judgment, or any other official notice from the clerk’s office

regarding the judgment, prior to October 13, 2009.




                                        4
      On November 20, 2009 and December 11, 2009, the trial court held hearings

on HKDC’s Rule 306a motion. During the hearing, HKDC’s former registered

agent Nip testified 1 that he did not remember ever receiving official notice of the

default judgment from the clerk’s office, and that he did not have actual awareness

of the judgment until he received Tran’s counsel’s October 8th letter. Specifically,

Nip testified that his office is in the same building as HKDC’s office and that even

though he had not done any accounting work for HKDC in over ten years, it was

his practice to sign for any certified mail sent to him, as their registered agent, and

deliver any mail he received for HKDC—certified or otherwise—by bringing the

mail to HKDC or slipping the mail under HKDC’s door. According to Nip, he did

not read the mail, he only delivered it.

      After considering the motion, the evidence, and the record, the trial court

found that HKDC did not receive notice of the August 17, 2009 default judgment

within twenty days of the signing of that judgment and that HKDC “first acquired

actual knowledge of the Court’s August 17, 2009 default judgment on October

13, 2009, which is within 90 days of the signing of the judgment.” Accordingly,

the trial court granted HKDC’s Rule 306a motion on December 11, 2009, and

ordered that the post-judgment deadlines were to be calculated from the date

HKDC received actual knowledge of the default judgment—October 13, 2009.


1
      Dan Nip was called to testify by Tran, not HKDC.

                                           5
See TEX. R. CIV. P. 306a(4) (stating that if party does not receive notice or acquire

actual knowledge of judgment within twenty days after judgment signed, then date

party receives actual notice becomes starting point from which post-judgment

deadlines run); In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig.

proceeding) (stating that Rule 306a(4)’s date of notice is date from which all post-

judgment deadlines and trial court’s plenary power runs).

      The case proceeded to trial a little over three years later, at the conclusion of

which the jury found that HKDC was not liable for Tran’s fall and that Tran was

100% negligent.     On April 26, 2013, the trial court rendered a take-nothing

judgment against Tran, based on the jury’s verdict.

      Tran then filed several post-judgment motions, including a motion to vacate

all orders after January 11, 2010, including the April 26, 2013 judgment, on the

basis that there was no order granting a new trial filed in the Harris County District

Clerk’s records prior to the expiration of the trial court’s plenary power on January

11, 2010. 2 On July 10, 2013, the trial court signed an order denying all of Tran’s

post-trial motions, including his motion to vacate.



2
      If Tran was correct, and the trial court’s plenary power expired in January 2010,
      then any action the trial court took on Tran’s motion to vacate the April 2013
      judgment would also be void and not reviewable on direct appeal. See In re
      Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008) (stating “[m]andamus
      relief is appropriate when a trial court issues an order after its plenary power has
      expired” because such rulings are void).


                                           6
      This appeal followed.

                                     Jurisdiction

      In his first and third issues, Tran contends that the trial court did not have

jurisdiction to hold a hearing on HKDC’s Rule 306a(5) motion because HKDC

failed to make a prima facie showing of lack of notice. Specifically, Tran argues

that HKDC was required to submit affidavits from all of its corporate officers

alleging the date on which the officers first received a notice of the judgment or

acquired actual knowledge of the signing of the judgment, and that the affidavit of

James, HKDC’s “property manager,” is insufficient to make a prima facie showing

of HKDC’s lack of notice.

      Rule 306a(5) requires the party alleging late notice of judgment to file a

sworn motion establishing the date the party or its counsel first learned of the

judgment. TEX. R. CIV. P. 306a(5). Rule 306a(5)’s requirements are jurisdictional.

Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex.

App.—Houston [1st Dist.] 2003, no pet.) (citing Mem’l Hosp. of Galveston Cnty. v.

Gillis, 741 S.W.2d 364, 365 (Tex. 1987)). The sworn motion establishes a prima

      If Tran was also correct that no order granting the motion for new trial was signed
      prior to 2013, the court’s plenary power would not have expired on January 11,
      2010, as Tran contends; it would have expired on February 4, 2010—thirty days
      after the October 22, 2009 motion for new trial was overruled by operation of law.
      See TEX. R. CIV. P. 329b(c) (stating that timely motion for new trial that has yet to
      be determined is overruled by operation of law seventy-five days after judgment),
      329b(e) (stating that plenary power extends thirty days after timely motion for new
      trial is overruled by written order or operation of law).


                                            7
facie case that the party lacked timely notice and invokes a trial court’s

otherwise-expired jurisdiction for the limited purpose of holding an evidentiary

hearing to determine the date on which the party or its counsel first received notice

or acquired knowledge of the judgment. See Lynd, 195 S.W.3d at 685; Cont’l Cas.

Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—Fort Worth 2004, pet. denied).

A Rule 306a(5) motion is timely so long as it is filed prior to the expiration of the

trial court’s plenary power, as measured from the date of notice established under

Rule 306a(4). See Lynd, 195 S.W.3d at 685.

      Rule 306a(5) requires “the party adversely affected” to prove “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.” TEX. R. CIV.

P. 306a(5). The rules do not require that a corporate officer—much less all of the

corporate officers—of an incorporated defendant submit sworn testimony on this

issue. See Gee v. Lewisville Mem’l Hosp., Inc., 849 S.W.2d 458, 460 (Tex. App.—

Fort Worth 1993, writ denied) (holding unsworn motion with attached sworn

affidavit from corporate defendant’s agent sufficient to make prima facie showing

of lack of notice). Indeed, the rules of civil procedure expressly provide that a

party’s affidavit “may be made by either the party or his agent or his attorney.”

TEX. R. CIV. P. 14 (emphasis added). The term “agent” means a “person or

business authorized to act on another’s behalf.” Columbia Rio Grande Healthcare,



                                          8
L.P. v. Hawley, 284 S.W.3d 851, 863 (Tex. 2009) (quoting dictionary definition of

“agent”).

      Here, James testified in his affidavit that he is HKDC’s property manager

and its “authorized representative” (i.e., HKDC’s agent for purposes of the

motion). See Hawley, 284 S.W.3d at 863 (defining “agent” as “person or business

authorized to act on another’s behalf”). James, who receives all of the mail

addressed to HKDC as part of his duties as property manager, testified that HKDC

did not acquire actual knowledge of the default judgment until October 13, 2009––

the date James received a letter from Tran’s counsel attempting to collect on the

judgment. James further testified that HKDC had not received a copy of the signed

judgment, or otherwise received any other form of official notice of the judgment

from the clerk’s office prior to that date. James’s sworn testimony is sufficient to

establish a prima facie case of lack of notice. See Gee, 849 S.W.2d at 460 (sworn

affidavit from corporate defendant’s agent sufficient to make prima facie showing

of lack of notice under Rule 306a). Moreover, the affidavit from HKDC’s sole

owner, Ha, which was attached to HKDC’s reply to Tran’s response to the Rule

306a motion filed on November 18, 2009, was also sufficient to make a prima

facie showing of lack of notice. See, e.g., Lynd, 195 S.W.3d at 685–86 (holding

Rule 306a(5) motion timely so long as it is filed prior to expiration of trial court’s

plenary power, as measured from date of notice established under Rule 306a(4)



                                          9
and holding affidavits from defendant company’s president, his secretary,

company’s corporate representative, and its attorney were sufficient to make prima

facie showing of lack of notice).

      Accordingly, the trial court had jurisdiction to determine the date of notice

for purposes of Rule 306a(4).

      We overrule Tran’s first and third issues.

              Rule 306a(5) Motion to Extend Appellate Deadlines

      In his second and fourth issues, Tran contends that the court, even assuming

the trial court had jurisdiction, nevertheless erred in granting HKDC’s Rule 306a

motion because (1) HKDC failed to tender any evidence at its Rule 306a hearing

and failed to refute evidence of receipt of the postcard by HKDC; and (2) the

primary case 3 relied on by HKDC and by the trial court for the proposition that a

party and a party’s registered agent are not the same thing with respect to notice of

a default judgment, is not binding precedent and does not modify the finality of the

default judgment. We construe these arguments as a challenge to the legal and

factual sufficiency of the evidence supporting the trial court’s granting of HKDC’s

Rule 306a motion.

      Post-judgment procedural timetables run from the day a party receives

official notice or actual knowledge of the judgment, rather than the day the

3
      See Buddy “L”, Inc. v. Gen. Trailer Co., 672 S.W.2d 541, 545 (Tex. App.—Dallas
      1984, writ ref’d n.r.e.).

                                         10
judgment is signed, if the party: (1) complies with the sworn motion, notice, and

hearing requirements mandated by Rule 306a(5), and (2) proves it received notice

of the judgment more than twenty but less than ninety-one days after it was signed.

TEX. R. CIV. P. 306a(4), (5). An appellate court reviews the trial court’s Rule 306a

findings, including the date a party is found to have received notice of judgment,

for legal and factual sufficiency. Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex.

App.—Houston [1st Dist.] 2004, no pet.); Hot Shot Messenger Serv., Inc. v. State,

798 S.W.2d 413, 414–15 (Tex. App.—Austin 1990, writ denied).                As the

factfinder, the trial judge weighs the evidence and judges a witness’s credibility,

and the judge may accept or reject any witness’s testimony in whole or in part.

See Texaco, Inc., 137 S.W.3d at 768. The trial court enjoys “great latitude” with

regard to the resolution of fact issues raised in the context of a Rule 306a motion.

See id.

      Here, HKDC submitted affidavits from its authorized agent, James, and its

sole owner, Ha, testifying that HKDC (1) did not acquire actual knowledge of the

default judgment until October 13, 2009––the date James received a letter from

Tran’s counsel attempting to collect on the judgment and (2) had not received a

copy of the signed judgment, or otherwise received any other form of official

notice of the judgment from the clerk’s office prior to that date. This testimony is

uncontradicted.    Thus, contrary to Tran’s position, HKDC did rebut the



                                        11
presumption that it received notice of the default judgment. See id. (stating denial

of receipt of notice of default judgment sufficient to rebut presumption, but not

conclusive, and merely presents fact issue for factfinder).       As such, it was

incumbent upon Tran to adduce evidence corroborating his claim that HKDC

received notice of judgment. See Davilla, 139 S.W.3d at 379–80 (stating that once

defendant rebuts presumption, plaintiff must come forward with corroborating

evidence). Tran, however, made no attempt to submit any evidence to support his

claim that HKDC had received notice (i.e., sworn affidavits or live testimony from

someone in clerk’s office, or copy of the clerk’s notice or return receipt). Cf.

Texaco, Inc., 137 S.W.3d at 768 (plaintiff called witnesses from clerk’s office to

testify during Rule 306a hearing regarding process of generating notice of default

and subsequent mailing procedures to counter defendant’s testimony that it did not

receive clerk’s notice).

      Although Tran contends that the uncontradicted affidavits attached to

HKDC’s Rule 306a motion are insufficient and must be accompanied by live

testimony in order for HKDC to meet its burden of proof, the case law does not

support such a proposition. See generally Strackbein v. Prewitt, 671 S.W.2d 37,

38–39 (Tex. 1984) (affirming appellate court’s reversal of trial court’s denial of

motion for new trial challenging default judgment based upon uncontroverted

factual allegations in affidavits attached to motion for new trial); Womack–



                                        12
Humphreys Architects, Inc. v. Barrasso, 886 S.W.2d 809, 816 n.9 (Tex. App.—

Dallas 1994, writ denied), overruled on other grounds by John v. Marshall Health

Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001) (“[A]t any rule 306a hearing the trial

court is free to believe or disbelieve a movant’s jurisdictional evidence or believe

or disbelieve the nonmovant’s contradicting evidence. However, absent a hearing,

the trial court is bound to accept the movant’s sworn affidavit as true.”).

      However, even if live testimony was required, the record reflects that Nip,

HKDC’s former registered agent, testified during the Rule 306a hearing as to his

practice to sign for any certified mail sent to him, as HKDC’s registered agent, and

deliver all the HKDC mail—certified or otherwise—to HKDC. According to Nip,

he only delivered the mail, and neither opened nor read it unless it was already

opened when presented to him for his signature. Nip further testified that he did

not remember receiving official notice of the default judgment from the clerk’s

office and was without any actual awareness of the judgment until receipt of the

October 8th letter from Tran’s counsel. Thus, between the sworn affidavits and

testimony at the hearing, the evidence before the trial court was that neither HKDC

nor Nip, its registered agent, received official notice from the clerk or otherwise

had actual knowledge of the judgment until after twenty days from the date the

court signed the judgment.




                                          13
      Because Nip’s testimony established that he received no notice within

twenty days of the judgment, we need not consider Tran’s fourth issue (i.e.,

whether a particular case relied upon by HKDC and the trial court is binding

precedent) or the question of whether notice of a default judgment to a party’s

registered agent constitutes notice to the party for purposes of Rule 306a.

      We overrule Tran’s second and fourth issues.

               Denial of Appellant’s Post-Trial Motion to Vacate

      In his fifth and sixth issues, Tran contends that the trial court erred when it

denied his post-trial motion to vacate the judgment because (1) there was no order

signed by the trial court granting the motion for new trial before the court’s plenary

power expired on January 11, 2010, and (2) although HKDC tendered an unofficial

copy of a December 28, 2009 “order” purporting to grant a new trial, appellee

failed to comply with Rule of Civil Procedure 77 regarding treatment of “lost”

documents.

      A court’s ruling on a motion to vacate, like a ruling on a motion for new

trial, is reviewed for abuse of discretion. EnviroPower, LLC v. Bear, Stearns &

Co., 265 S.W.3d 16, 19 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

      Here, Tran argued in his motion to vacate that there was no signed order

granting the motion for new trial before expiration of the court’s plenary power

and, because HKDC failed to comply with Rule of Civil Procedure 77 regarding



                                         14
treatment of “lost” documents, the court could not rely on the unofficial copy of

the “order” HKDC attached to its response to the motion to vacate. See TEX. R.

CIV. P. 77 (stating that if papers or records are lost or destroyed during pendency of

a suit, trial court may, on agreement of parties or on sworn motion and hearing,

substitute copy for lost or destroyed original document and have copy filed with

clerk). HKDC maintained that Rule 77 was inapplicable because the December

order was never “lost.” Notably, the supplemental clerk’s record, certified by the

District Clerk’s office, contains a signed order dated December 28, 2009 that

vacates the August 17, 2009 default judgment, grants a new trial, and reinstates the

case on the court’s docket.

      On July 10, 2013, the trial court signed an order denying Tran’s post-trial

motions, including his motion to vacate the April 26, 2013 judgment and his

motion “Seeking Court Assistance to Investigate the Recently Filed Document

from Defendant which Purports to be an Order Granting a New Trial.” It is

undisputed that HKDC did not attempt to comply with Rule 77. Therefore, the

trial court’s denial of Tran’s post-judgment motions is treated as its implied finding

that Rule 77 was, in fact, inapplicable (i.e., that the order was not “lost”) and that a

signed order granting the motion for new trial was on file in the clerk’s office prior

to the expiration of the trial court’s plenary power. Cf. In re C.H.C., 396 S.W.3d

33, 41 (Tex. App.—Dallas 2013, no pet.) (stating authenticity of copy of “lost”



                                          15
order is fact issue for trial court); In re Taylor, 113 S.W.3d 385, 391 (Tex. App.—

Houston [1st Dist.] 2003, orig. proceeding) (“Whether the order had been signed

was a matter entrusted to the sound discretion of the trial court, and we hold that

the trial court did not abuse its discretion by determining that the order had been

lost and by entering an order to substitute a re-executed order granting a new trial

for that lost order.”).

       We overrule Tran’s fifth and sixth issues.

                                    Conclusion

       We affirm the trial court’s judgment.




                                               Jim Sharp
                                               Justice


Panel consists of Justices Keyes, Sharp, and Huddle.




                                         16
