Opinion
08-23-00184-CV
08-17-2023
WINTON MORTGAGE COMPANY, LLC AND WINTON AND ASSOCIATES, INC. Appellants, v. MELISSA LIVINGSTON, Appellee.
Appeal from the County Court at Law No. 7 of El Paso County, Texas (TC# 2005-7022)
Before Rodriguez, C.J., Palafox and Soto, JJ.
ORDER
PER CURIAM
This matter is before the Court to determine whether to dismiss this appeal for want of jurisdiction. We will ABATE this appeal for fifteen days and withhold dismissal pending further inquiry.
County Court at Law No. 7 signed a final judgment in this case dated March 10, 2023. Appellants filed their notice of appeal on July 17, 2023. Because the notice of appeal appeared to be untimely filed, we questioned our jurisdiction over this matter and directed Appellants to show cause why this case should not be dismissed for want of jurisdiction. In their response to the Court, Appellants averred that they did not receive notice of the trial court's March 10 judgment until April 21, 2023. As such, under Texas Rule of Civil Procedure 306a(4), the July 17 notice of appeal was timely because it was filed within 30 days of the date Appellants received actual notice of the trial court's judgment.
In order to establish the date of actual notice of a judgment for purposes of the appellate timetables under Rule 306a(4), the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party of his attorney either first received notice of the judgment or acquired actual knowledge of the signing. See Tex. R. Civ. P. 306a(5), Hanash v. Walter Antiques, Inc., 551 S.W.3d 920, 924-25 (Tex. App.-El Paso 2018, pet. denied). At this time, we do not have proof such a motion has been filed in the trial court or that the trial court has otherwise established the late notice date this Court should use, as is required by Rule 306a(5).
Therefore, we ORDER this appeal to be abated for FIFTEEN DAYS to provide Appellants with the opportunity to either (1) show proof that the trial court has issued a Rule 306a(5) order that designates the date of actual notice of judgment, or (2) file a proper Rule 306a(5) motion with the trial court and provide this Court with proof such motion has been filed. Failure to provide these items to this Court before the abatement period ends may result in dismissal of this action without further notice to the parties.
IT IS SO ORDERED.