Leal v. Besfki
Dallas Court of Appeals, No. 05-23-00117-CV (November 20, 2024)
Justices Partida-Kipness (Opinion, linked here), Goldstein, and Miskel
Ordinarily, a notice of appeal must be filed no later than 30 days after a judgment is signed, unless that deadline is extended by the filing of a qualifying post-trial motion in that same 30-day period. When a party and his or her attorney don’t receive timely notice that a judgment has been signed, however, Rule of Civil Procedure 306a(4) allows the deadline for filing an appeal or post-judgment motion to be calculated from the date the party or attorney does receive notice or gain actual knowledge that a judgment has been signed. See also Tex. R. App. P. 4.2.
Rule 306a(5) provides that, to invoke the grace period of Rule 306a(4), “the party adversely affected [by the judgment] 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 ….” The Dallas Court of Appeals and others have construed this to mean the movant must prove and include in its sworn motion both “(1) the specific date the party first either (a) received the clerk’s notice of the judgment, or (b) acquired actual knowledge of the judgment; and (2) the specific date the party’s attorney [did so].“
Leal’s counsel did not receive timely notice of an adverse, take-nothing judgment. When counsel discovered the problem, he sought to invoke the Rule 306a(4) extension for post-judgment motions or the notice of appeal. But Leal’s sworn Rule 306a(5) motion established only the dates when his attorney received notice and learned of the judgment. It did not say when Leal, himself, got notice or first knew of the judgment. The Dallas Court of Appeals held that omission to be fatal and dismissed Leal’s appeal for want of jurisdiction, as untimely filed.
