Hot Shot Messenger Service, Inc. v. State, 3-90-254-CV

• Decision Date: 28 November 1990
• Docket Number: No. 3-90-254-CV,3-90-254-CV
• Citation: 798 S.W.2d 413
• Court: Texas Court of Appeals
• Parties: HOT SHOT MESSENGER SERVICE, INC., Appellant, v. The STATE of Texas, Appellee.

Page 413

798 S.W.2d 413

HOT SHOT MESSENGER SERVICE, INC., Appellant, v. The STATE of Texas, Appellee.

No. 3-90-254-CV.

Court of Appeals of Texas,

Austin.

Nov. 28, 1990.

Rehearing Overruled Jan. 9, 1991.

Paul E. Knisely, Austin, for appellant.

Brian D. MacLeod, Asst. Atty. Gen., Austin, for appellee.

Before CARROLL, ABOUSSIE and JONES, JJ.

PER CURIAM.

Appellant, Hot Shot Messenger Service, Inc., seeks to appeal a default judgment rendered in favor of appellees, the State of Texas and the Attorney General on behalf of the Texas Employment Commission. The trial court signed the judgment on January 24, 1990, and appellant filed its appeal bond on July 5, 1990. The clerk of this Court received the transcript on or about July 17, 1990, and a statement of facts on July 31, but did not file them because they appeared to be untimely. Appellant then filed this motion to compel clerk to file transcript and statement of facts.

Appellant asserts that it did not receive notice of the default judgment within 20 days after it was signed, thereby entitling it to the extended timetable to file post-judgment motions and to appeal. Tex.R.Civ.P.Ann. 306a (Supp.1990); Tex.R.App.P.Ann. 5 (Supp.1990). To secure the applicability of Rule 306a, appellant moved the trial court on April 26, 1990, to establish date of April 20, 1990, as the date on which it learned of the judgment. Appellant moved for new trial on the same date.

The trial court denied appellant's Rule 306a motion and denied as untimely its motion for new trial. In support of his ruling, the trial court filed findings of fact and conclusions of law. If the trial court's findings and conclusions are correct, appellant's motion for new trial was indeed untimely and its appeal bond would have been too late to invoke the jurisdiction of this Court. Tex.R.App.P.Ann. 5, 41 (Supp.1990); Thermex Energy Corp. v. Rantec Corp., 766 S.W.2d 402 (Tex.App.1989, no writ). In seeking to compel the clerk to file its transcript and statement of facts, appellant challenges the sufficiency of the evidence to support the trial court's fact findings from the hearing on its Rule 306a motion. Because appellant cannot demonstrate error without reference to the statement of facts from this hearing, we will review it to determine the validity of the complaint.

We review the trial court's findings as to the date a party received notice of judgment by the standards of factual and legal sufficiency of the evidence. See Barrett v. Mantooth, 554 S.W.2d 799, 802 (Tex.Civ.App.1977, writ ref'd n.r.e.) (trial court's findings made pursuant to old version of Rule 165a, containing language similar to current Rule 306a, reviewed for factual and legal sufficiency); see also Jimmy Swaggart Ministries v. Arlington, 718 S.W.2d 83 (Tex.App.1986, no writ); Caddell v. Gray, 544 S.W.2d 481 (Tex.Civ.App.1976, no writ).

Rule 306a places the burden on appellant to prove the date he received notice and that it was more than 20 days after the judgment was signed. Therefore, its legal sufficiency challenge requires a two-step analysis: we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary; if there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Holley v. Watts, 629 S.W.2d 694 (Tex.1982). Regarding appellant's factual sufficiency challenge, this Court must examine all the evidence and should set aside the finding only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951).

The trial court found that (1) appellee properly addressed, stamped, and mailed appellant a document which referred to the judgment on March 12, 1990; (2) appellant received this document; and (3) appellant acquired actual knowledge of the signing of the judgment on March 22, 1990.

At the hearing Darrell Donaldson, appellant's president, testified that appellant received no notice of the judgment from the district clerk. He stated that appellant first learned about the judgment after receiving a form from appellee dated April 10, 1990, and entitled "Statement of Employer's Account." The word "judgment" on the form aroused his concern, so Donaldson called his attorney for information. On April 20, appellant's attorney learned from the district clerk's office that the judgment had been entered on January 24 and told Donaldson about the judgment. The address at the top of the form correctly listed appellant's post office box in Houston.

Donaldson identified a similar form from appellee which was dated March 12, 1990. This form showed appellant's address at the same post office box as the April form. The March statement contained a reference to a judgment that was identical to that in the April statement. Donaldson testified that he may have seen the March statement from appellee, but that he never read it; he never noticed the word "judgment" on the March statement.

Donaldson stated that appellant had last moved its offices in November 1984 and...