Traci Yocham v. Farmers Texas County Mutual Company

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00572-CV

Traci Yocham, Appellant

v.

Farmers Texas County Mutual Company, Appellee

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 39546, HONORABLE ALAN M. MAYFIELD, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Traci Yocham seeks to appeal a final judgment signed on July 8, 2014.

The record does not reflect that Yocham filed a motion for new trial or any other post-judgment

motion extending her deadline to file a notice of appeal. See Tex. R. App. 26.1 (when certain

post-judgment motions are filed, notice of appeal is due within ninety days after judgment signed).

Accordingly, Yocham had until August 7, 2014—thirty days after the judgment was signed—to file

her notice of appeal. See Tex. R. App. P. 26.1 (generally, notice of appeal must be filed within thirty

days after judgment is signed); see also Tex. R. App. P. 26.3 (allowing fifteen-day extension of

notice of appeal deadline on appellant’s motion); Verburgt v. Dorner, 959 S.W.2d 615, 617

(Tex. 1997) (motion for extension of time implied when appellant files notice of appeal within

fifteen days of deadline for filing notice of appeal). Yocham did not file her notice of appeal until

September 3, 2014.

The Clerk of this Court notified Yocham that it appeared from the trial court clerk’s

record that her notice of appeal was untimely and, as a result, that this Court lacked jurisdiction over

this appeal. In response to our notice, Yocham informed the Court that although the trial court had

signed the judgment on July 8, 2014, the judgment was not filed with the trial court clerk or sent to

the parties until August 21, 2014. See Tex. R. Civ. P. 306a(3) (when appealable order is signed,

clerk of court shall immediately give notice to parties). Citing Rule 306a of the Texas Rules of Civil

Procedure, Yocham asserts that her notice of appeal is timely because (1) she has submitted to this

Court an affidavit complying with Rule 306a(5); (2) her affidavit demonstrates that she did not

receive notice or obtain actual knowledge of the judgment until August 21; and (3) consequently,

her notice of appeal was not due until September 21, 2014—thirty days from the day she first

received notice of the judgment. We disagree that Yocham’s appellate deadline was extended by

operation of Rule 306a.

Ordinarily, a party’s deadline for filing a notice of appeal is computed from the date

the judgment or other appealable order was signed. See Tex. R. App. P. 26.1. If a party does not

receive notice of a judgment or appealable order within twenty days after it is signed, Texas Rule

of Appellate Procedure 4.2 provides a mechanism by which a party may, effectively, obtain an

extension of his appellate deadline. See id. R. 4.2. When a party establishes his right to an extension

under Rule 4.2, the time period for filing notice of appeal begins to run from the date the party

received notice or actual knowledge of the judgment or appealable order, whichever is earlier, not

to exceed ninety days after the judgment was signed. See id. R. 4.2(a).

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The procedure for obtaining additional time under Rule 4.2 is governed by Rule 306a

of the Texas Rules of Civil Procedure. Id. R. 4.2(b) (providing that procedure to gain extension of

appellate deadlines due to lack of notice or actual knowledge of signing of judgment is governed by

Rule 306a); see Tex. R. Civ. P. 306a. Under Rule 306a, “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 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.” Tex. R. Civ. P. 306a(4). Further, Rule

4.2 requires the trial court, after hearing the motion, to sign an order finding the date on which the

party or the party’s attorney first either received notice or acquired actual knowledge that the

judgment or order was signed. Tex. R. App. P. 4.2(c).

In this case, Yocham contends that she is entitled to an extension of her appellate

deadline because she was unaware of the trial court’s judgment until August 21, 2014. However,

Yocham does not contend, nor does the record suggest, that a sworn motion under Rule 306a

was ever filed in the trial court.1 See Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., Inc.,

377 S.W.3d 40, 44 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that appellant failed

to establish application of Rule 306a because record did not contain sworn motion under Rule

306a(5)). Consequently, Yocham has failed to demonstrate that her appellate deadlines were

1

In this Court, Yocham has filed a sworn affidavit with attached documents that, according

to Yocham, establish that she did not receive timely notice of the judgment. However, Rule 306a

requires that proof of late notice be made in the trial court and in the manner set forth in the Rule.

Memorial Hosp. of Galveston Cnty. v. Gillis, 741 S.W.2d 364, 366 (Tex. 1987). Accordingly, we

cannot consider Yocham’s affidavit in determining whether she has established her right to an

extension under Rule 4.2.

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extended through application of Rule 4.2.2 See Tex. R. App. P. 4.2(a). Because Yocham’s notice

of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal. See id.

R. 25.1(b). We dismiss the appeal for want of jurisdiction. See id. R. 42.3(a).

____________________________________

Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Dismissed for Want of Jurisdiction

Filed: February 12, 2015

2

A motion under Rule 306a must be filed before the trial court’s plenary power expires as

measured from the date of notice established under Rule 306a. John v. Marshall Health Servs., Inc.,

58 S.W.3d 738, 741 (Tex. 2001). The trial court’s plenary power in this case—even when measured

from the date Yocham contends she first received notice of the judgment—has long expired. See

Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (explaining that trial

court retains jurisdiction over case for minimum of thirty days after signing of judgment, during

which time court retains plenary power to change judgment); see also Tex. R. Civ. P. 329 (outlining

effects of motions for new trial and other similar motions on trial court’s plenary power). As a

result, any Rule 306a motion filed by Yocham now would be untimely and could not be considered

by the trial court.

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