Court of Appeals of Texas, Third District, Austin
COUNTY COURT NO. 1 OF FAYETTE COUNTY NO. 3734, THE HONORABLE
EDWARD F. JANECKA, JUDGE PRESIDING
Chief Justice Rose, Justices Kelly and Smith
ORDER AND MEMORANDUM OPINION
Split Express, Inc. filed this appeal on February 28, 2019,
from the trial court's December 4, 2018 final summary
judgment in favor of Lyndee Solutions, Inc. in a suit on a
sworn account. We questioned our jurisdiction over this
appeal and requested a response. After considering the
response and record, we will abate this appeal and remand
this cause to the trial court for an evidentiary hearing.
Split contends that it retained counsel the week before the
summary-judgment hearing scheduled for December 5, 2018, at
10:30 a.m. On December 3, 2018, Lickety Split's counsel
obtained a Rule 11 agreement to pass the hearing and notified
the court coordinator of the agreement, and the court
coordinator stated that the hearing would be passed. Lickety
Split filed a motion for continuance on December 5, 2018, at
2:46 p.m. However, the trial court had already signed the
summary judgment on December 4, 2018, before the scheduled
Split contends that its counsel did not receive actual notice
of the judgment until January 9, 2019, when he called the
court to check on the status of the agreed motion for
continuance of the scheduled summary judgment hearing. That
day, Lickety Split filed a motion for new trial addressing
its lack of notice of the judgment and invoking Rule 306a.
See Tex. R. Civ. P. 306a(4)-(5) (authorizing
proceeding in trial court for party to establish late notice
of judgment and date of actual notice). The motion did not
allege the date that Lickety Split itself learned of the
judgment, did not request a hearing, and did not request a
trial-court finding as to the date of notice. Cf.
id. R. 306a(5). It requested only that the trial
court grant the motion for new trial, set aside the final
judgment, and reinstate the case on the court's docket.
The trial court denied Lickety Split's motion for new
trial on January 30, 2019, and Lickety Split appealed.
of the date of notice of a judgment must be made in the trial
court, not the court of appeals. Memorial Hosp. v.
Gillis, 741 S.W.2d 364, 365 (Tex. 1987); see
Tex. R. App. P. 306(a)(5) (specifying that party must
"prove in the trial court," on sworn motion and
notice, date that party or its attorney first received notice
of judgment or acquired actual knowledge of signing and that
such date was more than twenty days after judgment was
signed); Grondona v. Sutton, 991 S.W.2d 90, 91-92
(Tex. App.-Austin 1998, pet. denied) ("To make a
prima-facie case of lack of timely notice, [movant] had to
offer evidence that neither he nor his attorney learned of
the judgment within twenty days after it was signed.").
Because the trial court expressly denied the motion for new
trial, and because Lickety Split did not establish lack of
notice of the judgment and the date of actual notice at an
evidentiary hearing, we may not imply a finding as to the
date of actual notice. See In re Lynd Co., 195
S.W.3d 682, 686 (Tex. 2006) (concluding that date of notice
could be implied from trial court's order granting new
trial); Nedd-Johnson v. Wells Fargo Bank,
N.A., 338 S.W.3d 612, 613 (Tex. App.-Dallas 2010, no
pet.) (distinguishing In re Lynd because trial court
denied motion for new trial and because Rule 4.2(c) requiring
written order finding date of notice applies to appeals).
it did not comply fully with the applicable rules, Lickety
Split invoked Rule 306a in its verified motion for new trial,
and it is unclear whether the trial court denied that motion
because it was unpersuaded by the merits of the allegations,
because it considered the motion untimely, or for other
reasons. See In re J.Z.P., 484 S.W.3d 924, 925 &
n.1 (Tex. 2016) (reversing court of appeals' dismissal of
appeal for want of jurisdiction that was based on conclusion
that Rule 306a motion was misnamed and did not ask trial
court to rule on applicability of Rule 306a). Accordingly, we
will abate this appeal and remand this cause to the trial
court for an evidentiary hearing and order finding the date
that Lickety Split or its counsel first received actual
notice of the final summary judgment. See Tex. R.
App. P. 4.2(c); Tex.R.Civ.P. 306a(5). The record of the
hearing and the signed and filed order shall be forwarded to
this Court for filing as a supplemental record no later than
July 8, 2019.