Opinion
01-20-00426-CV
02-01-2022
JOE ALFRED IZEN, JR. AND AFTON JANE IZEN, Appellants v. PASADENA INDEPENDENT SCHOOL DISTRICT AND HARRIS COUNTY, Appellees
On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2010-51329
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM ORDER
PER CURIAM
In the underlying suit for delinquent ad valorem property taxes, the district court entered a judgment against appellants Joe Alfred Izen, Jr. ("Joe") and Afton Jane Izen ("Afton") and in favor of several taxing authorities, including appellee Pasadena Independent School District ("PISD"). Several years later, on January 23, 2020, PISD filed an amended motion for judgment nunc pro tunc, (1) alleging that the 2014 final judgment awarded the correct amount of tax, penalty, and interest for all of the tax years but failed to properly identify all of the applicable tax years, and (2) requesting that the trial court correct this clerical error in a judgment nunc pro tunc. In its certificate of service, PISD noted that Afton was served via regular mail at "6433 Ross St."
The judgment was also entered in favor of Harris County, which sued to collect on its own behalf and on behalf of the following county-wide taxing authorities: the Harris County Department of Education, the Port of Houston Authority of Harris County, the Harris County Flood Control District, the Harris County Hospital District, and the City of Pasadena.
On February 21, 2020, the trial court entered the judgment nunc pro tunc at issue in this appeal. Joe filed a motion for new trial on March 23, 2020 and his notice of appeal on May 20, 2020. Afton did not file a motion for new trial until May 11, 2020. In her motion for new trial, Afton asserted that she did not receive notice of PISD's motion or the judgment nunc pro tunc until May 5, 2020. She did not file her notice of appeal until July 9, 2020.
On appeal, appellants challenge the judgment nunc pro tunc, in part, because they allege that each did not receive notice of the motion for or entry of the judgment. With respect to Afton, PISD admits that it did not properly serve the motion on Afton because it sent the motion to 6433 Ross St. instead of 6433 Roos St., which was the address for service. But PISD argues that we should not consider Afton's appeal because she did not obtain an order extending post-judgment deadlines and therefore her motion for new trial and subsequent notice of appeal are untimely.
A motion for new trial shall be filed prior to or within 30 days after the judgment or other order complained of is signed. Tex.R.Civ.P. 329b(a). Thus, here, appellants were required to file their motions for new trial within 30 days of the judgment nunc pro tunc, or by March 23, 2020. Joe timely filed his motion for new trial on March 23, 2020. Because he timely filed a motion for new trial, the time for any party to file a notice of appeal from the judgment nunc pro tunc was extended to 90 days, until May 21, 2020. See Tex. R. App. P. 26.1(a) ("[T]he notice of appeal must be filed within 90 days after the judgment is signed if any party timely files . . . a motion for new trial[.]"). Joe timely filed his notice of appeal on May 20, 2020. Afton's notice of appeal was due no later than June 3, 2020, or 14 days after Joe's timely notice of appeal. See Tex. R. App. P. 26.1(d) ("[I]f any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later."). Afton did not file her notice of appeal until July 9, 2020. Under the rules, Afton's notice of appeal was untimely, unless she timely requested (and obtained) an extension of time to file post-judgment motions, which would then extend the appellate timetable.
If a party does not receive notice or acquire actual knowledge of a judgment within 20 days of its signing, the period to file a notice of appeal will not begin to run until the date the party receives notice. Tex.R.App.P. 4.2(a); see also Tex. R. Civ. P. 306a(4) ("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, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed."). But an extension of time under Texas Rule of Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a(4) is not automatic. See Tex. R. Civ. P. 306a(5); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Rather, to gain this additional time to file a post-judgment motion and notice of appeal, a party must comply with Texas Rule of Civil Procedure 306a(5) and prove in the trial court, upon sworn motion, the date on which the party or the party's attorney first received notice or had actual knowledge of the judgment. Tex.R.App.P. 4.2(b); Tex.R.Civ.P. 306a(5). The Rule 306a(5) motion must be filed while the trial court retains plenary power, measured from the alleged date of notice in the motion. See Tex. R. Civ. P. 329b(d); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001) (per curiam). Finally, the trial court must issue a written order that finds the date the party received notice. See Tex. R. App. P. 4.2(c).
Compliance with Rule 306a(5)'s and Rule 4.2's requirements is jurisdictional: if not properly extended by Rule 306a, the trial court's plenary power expires 30 days after the signing of the judgment, and the court is without jurisdiction to grant or to deny a motion for new trial filed after the expiration of that period. Mem'l Hosp. of Galveston Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1988); see Moore Landrey, L.L.P., 126 S.W.3d at 540.
Thus, to proceed under Texas Rule of Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a, Afton was required to file a Rule 306a(5) motion in the trial court, present proof, and obtain an order from the trial court specifically finding the date she or her attorney first received notice of the judgment. Afton filed a motion for new trial, with supporting declaration, on May 11, 2020, pursuant to Texas Rules of Civil Procedure 329(b) and 306a(4), stating, in part, that she was not properly served with the motion for judgment nunc pro tunc and, therefore, she did not receive actual notice of the judgment until she was contacted by Joe on May 5, 2020.
Although Afton's motion and supporting declaration arguably demonstrate that she did not have actual notice of the judgment nunc pro tunc until May 5, 2020, there is nothing in the record to indicate that Afton ever requested an extension of the post-judgment deadlines under Rule 306a or obtained the required notice finding from the trial court. She styled her motion only as a motion for new trial, not as a request for an extension of post-judgment deadlines. And although she references Rule 306a in the motion's opening paragraph, Afton does not separately request that the court conduct a hearing to determine the date on which she obtained actual notice of the judgment. She also does not include such a request in the motion's prayer for relief. Nothing in the record shows that the trial court held a hearing or made any findings.
Because Afton did not request an extension of the post-judgment deadlines or obtain the required finding from the trial court, the trial court's plenary power and the appellate timetables were not properly extended under Texas Rule of Civil Procedure 306a or Texas Rule of Appellate Procedure 4.2. See Scott v. Healey, No. 01-04-00716-CV, 2005 WL 1776234, at *2 (Tex. App.-Houston [1st Dist.] July 28, 2005, no pet.) (mem. op.) ("Rule 306a(5) did not extend the trial court's plenary power because the trial court did not enter a written order finding the date on which Scott received notice or acquired actual knowledge of the final judgment."); McDowell v. Walt, No. 07-03-0188-CV, 2003 WL 21197313, at *1-2 (Tex. App.- Amarillo May 21, 2003, no pet.) (mem. op.) (internal citations omitted) ("In other words, the prospective appellant must obtain a finding from the trial court establishing that such notice or knowledge was received more than 20 days after the date the judgment was signed. We cannot make the requisite finding. Finally, without it, the affected party cannot invoke the benefits of appellate Rule 4.2(a)(1)."). Thus, it appears that Afton's notice of appeal, which was not filed until July 9, 2020, was untimely and, as a result, we have no jurisdiction over a direct appeal from the judgment nunc pro tunc. See Tex. R. App. P. 25.1(b), 26.1(a).
However, Afton's notice of appeal was filed within the time for perfecting a restricted appeal. Tex.R.App.P. 26.1(c) ("[I]n a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed[.]"). If Afton's appeal is a restricted appeal, then we possess jurisdiction. In the interest of justice and to ensure Afton receives a merits-based review, we construe Afton's notice of appeal as a notice in a restricted appeal. See Tex. R. App. P. 26.1(c); Tex.R.App.P. 30.
The notice of appeal, however, does not comply with requirements applicable to a notice in a restricted appeal. If the appeal is a restricted appeal, the notice of appeal must: (1) state that the appellant is a party affected by the trial court's judgment but did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of; (2) state that the appellant did not timely file either a post judgment motion, request for findings of fact and conclusions of law, or notice of appeal; and (3) if appellant is not represented by counsel, appellant must verify the notice of appeal. Tex. R. App. 25.1(d)(7). Afton's notice of appeal does not meet the Rule 25.1(d)(7) requirements for restricted appeals. Accordingly, we direct Afton to file an amended notice of appeal that meets the requirements set out in Texas Rule of Appellate Procedure 25.1(d) within 14 days of the date of this order or this Court will dismiss her appeal for lack of jurisdiction.
We further order Afton to file supplemental briefing addressing the issue of whether she can meet the requirements for sustaining a restricted appeal. See Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) ("To 'sustain' a restricted appeal, the filing party must show that: (1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment complained of, and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record."). Afton's supplemental brief is due in this Court within 30 days of the date of the filing of the amended notice of appeal. We further request PISD to file a reply to Afton's supplemental brief on the restricted appeal requirements. PISD's reply, if any, is due within 30 days of the date Afton's supplemental brief is filed. The supplemental brief and reply, if any, must be limited to the topics identified and may not, without leave of court, be longer than 4, 500 words if computer-generated and 15 pages if not.