Opinion
No. 10-05-00361-CV
Opinion delivered and filed January 18, 2006.
Appeal fromthe 18th District Court, Johnson County, Texas, Trial Court No. C200400488.
Appeal dismissed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Apparajan Ganesan filed a notice of appeal from an order of the trial court dismissing his civil suit for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. The trial court signed the dismissal on March 23, 2005, and Ganesan's notice of appeal was filed on May 26, 2005.
We sent Ganesan a letter questioning our jurisdiction of the case because the notice of appeal appeared to be untimely filed. Ganesan responded that he did not receive the notice required by Rule 306a of the Texas Rules of Civil Procedure that the dismissal judgment had been signed and that he received actual notice of the judgment on May 23, 2005. He also responded that he promptly filed a motion to reinstate under the time table as extended by Rule 306a(4). Ganesan also characterized his motion to reinstate, "in the alternate," as a notice of appeal. This notice of appeal will be timely only if the time to file the notice of appeal is extended by compliance with Rule 306a(5). Tex. R. Civ. P. 306a(4) (5); Tex.R.App.P. 4.2(a) (b).
On the record before us, Ganesan is not entitled to the benefits of Rule 306a(4) because he did not comply with Rule 306a(5). TEX. R. CIV. P. 306a(4) (5); TEX. R. APP. P. 4.2(a) (b). Subsection (5) specifically provides,
In order to established the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, 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 and that this date was more than twenty days after the judgment was signed.
Rule 306a places the burden to establish its applicability on the party seeking to invoke the rule's benefits. See City of Loredo v. Schuble, 943 S.W.2d 124, 126 (Tex.App.-San Antonio 1997, orig. proceeding). To extend the appellate timetable, the trial court must sign an order finding the date when the party or his attorney first either received notice or acquired actual knowledge the judgment was signed. TEX. R. APP. P. 4.2(c). To invoke the trial court's power to so act, the party must file a sworn motion offering prima facie evidence of when the party or his attorney first received notice or actual knowledge of the signing of the judgment. See In re Jones, 974 S.W.2d 766, 768 (Tex.App.-San Antonio 1998, orig. proceeding); Schuble, 943 S.W.2d at 126; In the Interest of Simpson, 932 S.W.2d 674, 678 (Tex.App.-Amarillo 1996, no writ). TEX. R. APP. P. 4.2(b); TEX. R. CIV. P. 306a(5).
A motion filed pursuant to Rule 306a is sufficient only if it is accompanied by a verification or affidavit stating "directly and unequivocally that the facts alleged are true and within the personal knowledge of the affiant." Schuble, 943 S.W.2d at 126 n. 2; Simpson, 932 S.W.2d at 677. An unsworn motion is insufficient to invoke the trial court's jurisdiction to extend the date on which the appellate timetable begins to run. See Schuble, 943 S.W.2d at 126; Simpson, 932 S.W.2d at 677-679. See also Barnes v. Tex. Dep't of Crim. Justice-Institutional Div., No. 14-02-00801-CV, 2002 Tex. App. LEXIS 6925 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Quezada v. Hinkle, No. 04-99-00824-CV, 1999 Tex. App. LEXIS 8922 (Tex.App.-San Antonio 1999, pet. denied).
There is no motion by which Ganesan sought a determination of the date he received notice of the judgment. And further, what documents we have in the record, such as the motion to reinstate, are not sworn to so as to provide proof of the date Ganesan learned of the judgment against him. Thus, the appellate timetable has not been extended, and Ganesan's notice of appeal is untimely.
Accordingly, we have no jurisdiction of this appeal.
Ganesan's appeal is dismissed.