Georgina Rendon v. Bobby Swanson. Bobby Swanson, Inc., and Model Cleaners ( 2021 )

Opinion filed August 19, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00260-CV
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GEORGINA RENDON, Appellant
V.
BOBBY SWANSON, BOBBY SWANSON, INC., AND MODEL
CLEANERS, Appellees
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-17-07-0806-CV
MEMORANDUM OPINION
This is an appeal from an order of dismissal for want of prosecution. See
TEX. R. CIV. P. 165a. Georgina Rendon sued Bobby Swanson, Bobby Swanson,
Inc., and Model Cleaners for injuries sustained during a workplace accident. After
a substantial period of inactivity, the trial court dismissed the case for want of
prosecution. Rendon appeals.
On appeal, Rendon contends (1) that the trial court’s order pursuant to
Rule 4.2 of the Texas Rules of Appellate Procedure was improper because it was
untimely and was in contravention of the evidence at the hearing, (2) that the trial
court erred in denying Rendon’s motion for new trial because she was entitled to
relief under Rule 306a(4 )of the Texas Rules of Civil Procedure, (3) that the trial
court erred in dismissing the suit for want of prosecution without giving notice to
Rendon, and (4) that the trial court deprived Rendon of her due process rights under
the Texas and United States Constitutions by failing to send two separate required
notices. We dismiss this appeal for lack of jurisdiction.
Background Facts
Rendon filed her original petition on July 24, 2017. On August 26, 2017,
Rendon filed her first amended petition. The record reflects that no actions were
taken in the case for eighteen months thereafter until March 22, 2019, when the trial
court signed an order of dismissal for want of prosecution. On March 26, 2019, the
court clerk e-mailed notice of the dismissal—along with a copy of the order attached
thereto—to one of Rendon’s counsel, Kevin Miller, at the e-mail address listed in
Rendon’s petitions. On May 20, 2019, Rendon filed her motion for new trial and
motion to reinstate in which she asserted that she had not received the Rule 306a
notice and had not learned of the dismissal order until May 20, 2019. On June 4,
2019, the trial court conducted a hearing on the motion for new trial and motion to
reinstate; the motion was overruled by operation of law on June 5, 2019. See TEX. R.
CIV. P. 165a.3, 329b.(c).
Rendon subsequently filed a notice of appeal on August 19, 2019. In her
notice of appeal, Rendon asserted that she had not received timely notice of the trial
court’s dismissal order, and she attempted to invoke the protections of Rule 306a(4).
On August 30, 2019, this court issued an abatement order in which we noted that
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Rendon had not presented this court with a trial court finding reflecting the date that
Rendon or her attorney had received notice or acquired actual knowledge of the
dismissal order. The purpose of the abatement was “to provide Rendon an
opportunity to . . . obtain the requisite findings” from the trial court. On
September 11, 2019, pursuant to our abatement order and Rule 4.2(c) of the Texas
Rules of Appellate Procedure, the trial court issued an order in which it found that
Rendon’s counsel acquired actual knowledge of the March 22 dismissal order on
March 26, 2019, the date Rendon’s counsel was sent an e-mail containing notice of
the dismissal.
Analysis
Absent a timely filed notice of appeal, this court does not have jurisdiction
over an appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex.
2005). When the appellant has not filed a timely motion for new trial, motion to
modify the judgment, motion to reinstate, or request for findings of fact and
conclusions of law, a notice of appeal from a final judgment must be filed within
thirty days after the judgment is signed. TEX. R. APP. P. 26.1(a). 1
However, Rule 306a provides that, if within twenty days after a judgment or
other appealable order is signed, a party adversely affected by it has neither received
the required notice nor acquired actual knowledge of the judgment or the order, the
appellate deadlines shall begin to run from the date that the party received notice or
acquired actual knowledge of the rendition of the judgment or the order. TEX. R.
CIV. P. 306a.4; see also TEX. R. APP. P. 4.2(a). In order to establish the application
of the rule, the adversely affected party must “prove in the trial court, on sworn
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We recognize that we may extend the time to file the notice of appeal if, within fifteen days after
the deadline for filing the notice of appeal, the party files the notice of appeal in the trial court and files a
motion for extension of time in the appellate court. See TEX. R. APP. P. 26.3. However, even applying
Rule 26.3, Rendon’s notice of appeal would not have been timely.
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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.” TEX. R. CIV. P. 306a.5;
see also TEX. R. APP. P. 4.2(b). After hearing the motion, the trial court is required
to sign a written order that indicates the date when the party first received notice or
acquired actual knowledge of the signing of the judgment or order. TEX. R. APP. P.
4.2(c).
Rendon contends that she acquired actual knowledge of the dismissal order
for the first time on May 20, 2019. Rendon also contends that the trial court’s
September 11, 2019 finding—that she had actual knowledge of the dismissal on
March 26, 2019—“was outside the plenary power of the trial court” and was made
in contravention of the evidence.
We first note that Rendon misconstrues the application of the rules
surrounding a trial court’s plenary powers. Generally, a trial court has plenary power
to grant a new trial or vacate, modify, correct, or reform the judgment until thirty
days after the judgment was signed or, if a motion for new trial was timely filed,
until thirty days after the motion was overruled. See TEX. R. CIV. P. 329b(d), (e).
The trial court, however, did not rule on Rendon’s motion for new trial on
September 11, 2019. Rather, in accordance with the instructions set forth in our
order of abatement, the trial court found in its “Order Pursuant to TEX. R. APP. P.
4.2(c)” that Rendon’s counsel acquired actual knowledge on March 26, 2019, of the
trial court’s signing of the March 22, 2019 dismissal order. The trial court was not
using its plenary powers to alter a judgment or other appealable order when it made
the finding required by Rule 4.2(c); therefore, the jurisdictional rules governing a
trial court’s plenary powers are inapplicable. See Johnson Cty. Special Util. Dist. v.
Pub. Util. Comm’n of Tex., No. 03-17-00160-CV, 2018 WL 2170259, at *5–6 (Tex.
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App.—Austin May 11, 2018, pet. denied) (mem. op.) (concluding that trial court had
jurisdiction—after its plenary power had expired—for the limited purpose of holding
a hearing to determine the date on which the appellant or its counsel first received
actual notice or acquired knowledge of the judgment and to enter its finding in an
order).
Even so, a ruling that the trial court’s finding was untimely and made outside
of its plenary powers would only harm Rendon, as this court would have no
jurisdiction without such an order. See TEX. R. APP. P. 4.2(c) (“After hearing the
motion, the trial court must sign a written order that finds the date when the party or
the party’s attorney first either received notice or acquired actual knowledge that the
judgment or order was signed.”); Nedd-Johnson v. Wells Fargo Bank, N.A., 338
S.W.3d 612, 613 (Tex. App.—Dallas 2010, no pet.). Rendon implies that an express
finding is not necessary because her sworn motion establishes a prima facie case of
the alternate date of notice (May 20, 2019), and Rendon cites to In re Lynd Co. as
support. See 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) (“when the trial
court fails to specifically find the date of notice, the finding may be implied from the
trial court’s judgment, unless there is no evidence supporting the implied finding or
the party challenging the judgment establishes as a matter of law an alternate notice
date”). However, we agree with our sister court’s analysis in Nedd-Johnson, in
which the court, under facts similar to the instant case, held:
Lynd is distinguishable. . . . The Court’s holding in Lynd was based on
the fact that the trial court granted a new trial. Moreover, Lynd did not
involve an appeal. Thus, rule 4.2(c) of the rules of appellate procedure
requiring a written finding of the actual date of notice of the judgment
did not come into play.
338 S.W.3d at 613. Accordingly, “[w]ithout a finding of the date notice was actually
received, there can be no extension of the appellate timetables.” Id. Under these
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facts, a ruling that the trial court’s September 11, 2019 order was untimely and
entered outside of its plenary power would only serve to eliminate any remaining
possibility that this court has jurisdiction to hear this appeal. See id.; see also
Florance v. State, 352 S.W.3d 867 (Tex. App.—Dallas 2011, no pet.). Without
otherwise being able to consider the trial court’s answer to our Rule 4.2(c) inquiry,
we could only conclude that the trial court’s failure to grant Rendon’s motion for
new trial implied a finding against Rendon’s asserted notice date. See Lynd, 195
S.W.3d at 686 (“the finding [of a notice date required under Rule 306a] may be
implied from the trial court’s judgment”).
Because we hold that the trial court could properly issue its Rule 4.2(c) order
at the time that it did so, we now address whether sufficient evidence existed to
support the trial court’s finding that Rendon’s counsel, on March 26, 2019, acquired
actual knowledge of the trial court’s dismissal order. We review the trial court’s
findings as to the date a party received notice of a judgment by the standards of
factual and legal sufficiency of the evidence. Housing Auth. of City of Austin v.
Elbendary, 581 S.W.3d 488, 492 (Tex. App.—Austin 2019, no pet.) (citing LDF
Constr., Inc. v. Tex. Friends of Chabad Lubavitch, Inc., 459 S.W.3d 720, 724 (Tex.
App.—Houston [14th Dist.] 2015, no pet.)). If a party attacks the sufficiency of an
adverse finding on which it had the burden of proof at trial, the party must
demonstrate on appeal that “the record conclusively establishes all vital facts in
support of the issue.” Id. (quoting Shields Ltd. P’ship v. Bradberry, 526 S.W.3d
471, 480 (Tex. 2017)).
During the June 4, 2019 hearing on the motion for new trial, Mark Cevallos,
another of Rendon’s attorneys, testified that Miller’s name and e-mail address were
listed first under the signature block of the original petition, and he acknowledged
that the e-mail containing the notice was sent to Miller’s correct e-mail address.
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However, Cevallos testified that no one in his firm ever saw or read it until Cevallos
found it on May 20, 2019, in Miller’s archive folder. Cevallos testified that, although
no one in his firm knew how it ended up in the archive folder, Miller’s “standard
practice” would have been to forward it along to Cevallos or their legal assistant,
had Miller actually seen the e-mail. Cevallos also testified that the e-mail had never
been opened when he found it in Miller’s archive folder. Based on these facts,
Cevallos contended that neither he nor Miller had “actual notice” of the dismissal
order.
Even if Cevallos’s factual assertions are taken as true, they nevertheless fail
to establish that Rendon’s attorneys did not receive the required notice or acquire
actual knowledge of the dismissal order. See TEX. R. CIV. P. 306a.4. Under
Rule 306a, the clerk of the court shall give notice to the parties or their attorneys of
record by first-class mail advising that a final judgment or other appealable order
has been signed. TEX. R. CIV. P. 306a.3; cf. TEX. R. CIV. P. 21(f)(10) (“The clerk
may send notices, orders, or other communications about the case to the party
electronically.”). As we noted above, if a party fails to receive the required
Rule 306a.3 notice and otherwise has not acquired actual knowledge of the
appealable order within twenty days of when the order is signed, the time periods
for filing a motion for new trial and a notice of appeal begin on the date the party
first received notice or acquired actual knowledge of the signing of the final
judgment or appealable order. TEX. R. CIV. P. 306a.4. However, actual knowledge
of the contents of the order is not required, so long as the party received actual notice
of the order. See In re Rhodes, 293 S.W.3d 342, 344 (Tex. App.—Fort Worth 2009,
no pet.). While Texas law has not extensively addressed the correlation between
Rule 306a notice and notice sent by e-mail, a number of our sister courts have held,
under similar factual circumstances, that a party received actual notice sufficient to
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render the Rule 306a filing extensions inapplicable where the party received an e-
mail containing notice of the appealable order from the trial court clerk within twenty
days of when the order was signed, regardless of whether the party had actual
knowledge of the e-mail’s contents. See Park v. Aboudail, No. 02-20-00260-CV,
2021 WL 1421442, at *6 (Tex. App.—Fort Worth Apr. 15, 2021, no pet. h.) (mem.
op.); Arlitt v. Ebeling, No. 03-18-00646-CV, 2018 WL 6496714, at *4 (Tex. App.—
Austin Dec. 11, 2018, no pet.) (mem. op.); see also Stettner v. Lewis & Maese
Auction, LLC, 611 S.W.3d 102, 107 (Tex. App.—Houston [14th Dist.] 2020, no pet.)
(holding that “Stettner’s attorney’s month-long delay in opening the June 29 Email
does not mean that he did not receive the June 29 Email giving notice of the motions
and their submission”).
Here, Cevallos acknowledged that the notice was e-mailed to the correct e-
mail address listed under Miller’s signature block in the original petition, and he
acknowledged that Miller actually received the e-mail. Cevallos could not explain
why the e-mail was in an archive folder. Furthermore, e-mail notice of the June 4,
2019 hearing was sent to the very same e-mail address, which Rendon’s counsel
acknowledged was received and did not end up in counsel’s archive folder. For
these reasons, we hold that sufficient evidence existed to support the trial court’s
finding that Rendon’s counsel acquired actual knowledge of the trial court’s
dismissal order on March 26, 2019. See Park, 2021 WL 1421442, at *6; Arlitt, 2018
WL 6496714, at *4; see also Stettner, 611 S.W.3d at 107. We overrule Rendon’s
first issue on appeal.
Because Rendon’s counsel acquired actual knowledge of the dismissal order
within twenty days of when it was signed, Rule 306a.4 is inapplicable to extend the
appellate timetable. See TEX. R. CIV. P. 306a.3, .4; In re Lynd, 195 S.W.3d at 686;
Jarrell v. Bergdorf, 580 S.W.3d 463, 467–68 (Tex. App.—Houston [14th Dist.]
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2019, no pet.). Therefore, Rendon’s notice of appeal was due to be filed with this
court on April 22, 2019. See TEX. R. APP. P. 4.1(a), 26.1. Because the notice of
appeal was untimely, this court does not have jurisdiction over this appeal. See
Wilkins, 160 S.W.3d at 564. Accordingly, we need not address Rendon’s remaining
issues on appeal. See TEX. R. APP. P. 47.1.
This Court’s Ruling
We dismiss this appeal for want of jurisdiction.
W. BRUCE WILLIAMS
JUSTICE
August 19, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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