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Latter and Blum of Texas, LLC v. Murphy

Court of Appeals of Texas, Second District, Fort Worth

August 8, 2019

Latter and Blum of Texas, LLC d/b/a Realty Associates, Appellant
v.
Paul Murphy, Appellee

          On Appeal from County Court at Law No. 2 Tarrant County, Texas Trial Court No. 2016-000685-2

          Before Sudderth, C.J.; Gabriel and Birdwell, JJ.

          MEMORANDUM OPINION

          LEE GABRIEL, JUSTICE

         Appellant Latter and Blum of Texas, LLC appeals from the trial court's default judgment in favor of appellee Paul Murphy. In a single issue, Latter and Blum contends the trial court abused its discretion by allowing its motion for new trial to be overruled by operation of law. We reverse the trial court's judgment as to Latter and Blum only and remand for further proceedings.

         I. BACKGROUND

         On February 2, 2016, Murphy filed a lawsuit against Jason Light, individually and d/b/a/ The Light Realty Group and Allstar Locators (Light), and Latter and Blum. Murphy's petition directed that process be served upon Latter and Blum via certified mail, return receipt requested, addressed to its registered agent, Peter Merritt. See Tex. R. Civ. P. 99(a), 106(a)(2). The trial court clerk did so on February 9, 2016. But although the trial court clerk addressed the citation to Merritt, the return receipt does not bear his signature; rather, it bears the signature of someone whose first name is Amanda.

         On March 7, 2016, attorney Gregg Clements filed an answer on behalf of both Light and Latter and Blum, generally denying the allegations in Murphy's petition.[1] The trial court set the case for trial on August 8, 2017, but when it called the case that day, no one appeared on Light's or Latter and Blum's behalf. The trial court proceeded to try the case in the defendants' absence and rendered judgment against them jointly and severally, awarding Murphy $30, 769.50 in actual damages, $61, 539 in exemplary damages, and $6, 053.22 in attorney's fees. The trial court signed its judgment the same day.

         On November 8, 2017, Latter and Blum filed a combined rule 306a motion to extend postjudgment deadlines and motion for new trial. Relevant to the rule 306a motion, Latter and Blum alleged that neither it nor its counsel had received notice, or acquired actual knowledge, of the trial court's default judgment until November 1, 2017. Latter and Blum further maintained that because the first time it or its attorney learned of the default judgment was more than twenty, but less than ninety-one, days after the trial court signed the judgment on August 8, 2017, its deadline to file a motion for new trial should be calculated from November 1, 2017, the date it first learned of the judgment. See Tex. R. Civ. P. 306a(4). According to Latter and Blum, if its postjudgment deadlines were calculated from that date, its motion for new trial was timely. Latter and Blum also asked the trial court to hold a hearing to determine the date it received actual notice of the default judgment.

         With respect to its motion for new trial, Latter and Blum asserted that it was entitled to a new trial because it had not been served with process in accordance with the rules of civil procedure. That was so, according to Latter and Blum, because Merritt was its registered agent and the trial court clerk had addressed the citation to Latter and Blum through Merritt as registered agent, but Merritt's signature was not reflected on the return receipt. Instead, Amanda had signed the return receipt, and according to Latter and Blum, she was not authorized to accept service for it. Further, while acknowledging that Clements had filed an answer purportedly on its behalf, Latter and Blum maintained that he had erroneously done so, alleging that it had never hired Clements to represent it in this suit, that Clements had no authority to act on its behalf, and that Clements had only intended to answer on Light's behalf. Latter and Blum also alleged it was entitled to a new trial because it did not receive notice of the trial setting.

         Latter and Blum requested the trial court to set its motions for hearing, and the trial court did so, setting the hearing for December 4, 2017. The trial court held the hearing as scheduled[2] but decided to continue it at Murphy's request so the parties could provide briefing on whether Murphy was entitled to conduct discovery in connection with the motions before the trial court made any rulings or findings. The trial court requested the parties to provide the briefing by December 14, 2017. Murphy complied with that request, but Latter and Blum did not. Instead, on December 27, 2017, Latter and Blum filed a notice of appeal.[3]

         On January 2, 2018, we notified Latter and Blum that we were concerned that we lacked jurisdiction over this appeal because it appeared its notice of appeal was untimely filed. Six days later, Latter and Blum responded, asserting that its notice of appeal was timely under rule of appellate procedure 4.2, which extends the window of time a party has to file a notice of appeal in cases where it did not receive timely notice of the trial court's judgment. See Tex. R. App. P. 4.2. Specifically, for the same reasons it had alleged in its rule 306a motion in the trial court, Latter and Blum asserted that it did not learn of the trial court's default judgment until November 1, 2017, and that consequently, its motion for new trial was timely. For those reasons, Latter and Blum stated, it had ninety days from November 1, 2017, to file its notice of appeal. See Tex. R. App. P. 4.2(a)(1), 26.1(a)(1).

         But Latter and Blum did not provide us with a signed, written order from the trial court finding the date Latter and Blum or its attorney first learned of the trial court's judgment. See Tex. R. App. P. 4.2(c). The record shows that as of the time of Latter and Blum's January 8, 2018 response, the trial court still had not made such a finding. On January 30, 2018, we notified Latter and Blum that a signed, written order was necessary for its notice-of-appeal deadline to be extended under rule 4.2. See id.

         The next day, Latter and Blum filed a motion in the trial court asking it to make a written finding as to when it or its attorney first learned of the trial court's judgment. On February 7, 2018, the trial court held a hearing but expressly declined to make any rulings or findings at that time.[4] The next day, Latter and Blum notified us that the trial court had held a hearing but had not signed an order making the date-of-notice finding. When we did not receive such an order by March 15, 2018, we abated this case to the trial court and instructed it to sign one. On April 5, 2018, the trial court finally did so, finding the date Latter and Blum or its counsel first learned of the default judgment was November 1, 2017. When we received that order, we reinstated this appeal.

         In its sole issue, Latter and Blum contends the trial court abused its discretion by allowing its motion for new trial to be overruled by operation of law.

         II. JURISDICTION

         Neither party raised jurisdiction in their respective briefs, but the unique facts of this case necessitate that we determine our jurisdiction over this appeal before proceeding to the merits.[5] See In re M.K., 514 S.W.3d 369, 376 (Tex. App.-Fort Worth 2017, no pet.) (noting that appellate courts are obliged to consider jurisdictional issues sua sponte when not raised by the parties). We begin our jurisdictional inquiry by setting forth the law, as applicable to the facts of this case, that governs determinations of whether a party's notice of appeal has been timely filed.

         A. Law Governing Timeliness ...


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