Thermex Energy Corp. v. Rantec Corp., 05-88-01339-CV

• Decision Date: 07 March 1989
• Docket Number: No. 05-88-01339-CV,05-88-01339-CV
• Citation: 766 S.W.2d 402
• Parties: THERMEX ENERGY CORPORATION, Appellant, v. RANTEC CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 402

766 S.W.2d 402

THERMEX ENERGY CORPORATION, Appellant, v. RANTEC CORPORATION, Appellee.

No. 05-88-01339-CV.

Court of Appeals of Texas Dallas.

March 7, 1989.

Jeffrey L. Clark, Dallas, for appellant.

Jerry K. Warren, Dallas, for appellee.

Before ENOCH, C.J., BAKER and KINKEADE, JJ.

ON MOTION TO COMPEL

ENOCH, Chief Justice.

Appellant Thermex Energy Corporation ("Thermex") tendered the transcript on this appeal to the clerk of this Court for filing. Because it appeared not to contain a timely cost bond, the clerk refused to file it. Accordingly, Thermex filed a motion to compel the clerk to file the transcript. The sole issue before this Court is whether a motion for new trial, filed pursuant to rule 306a(5) of the Texas Rules of Civil Procedure, although unverified, serves to extend the appellate timetable under rule 306a(4). For the reasons given below, we direct the clerk to file the transcript, and we assert jurisdiction over this appeal.

On June 10, 1988, appellee Rantec Corporation (Rantec) obtained a summary judgment against Thermex. Thermex did not attend the hearing on Rantec's motion for summary judgment. Thermex alleges that, because settlement negotiations were taking place, Rantec had promised not to press its motion for summary judgment. There was no motion for new trial filed by July 11, the Monday following thirty days after the judgment, when the trial court's period of plenary jurisdiction would normally have ended.

Concluding that its judgment was now final, Rantec attempted to garnish an account of Thermex. Because of the garnishment, Thermex discovered that Rantec had obtained the summary judgment. Thermex alleges that it first acquired actual knowledge of the judgment on July 19; Rantec does not dispute this allegation. On July 28, more than thirty days after the judgment but less than thirty days after Thermex acquired actual knowledge of the judgment, Thermex filed a motion for new trial. The motion asserted that it was filed pursuant to rule 306a(4) of the Texas Rules of Civil Procedure. The motion, however, did not comply with section 306a(5): the motion was not sworn. See also TEX.R.APP.P. 5(b)(5).

Despite that defect, the trial court conducted a hearing on Thermex's motion on August 16, within thirty days of the date when Thermex acquired actual knowledge of the judgment. At that hearing, Thermex introduced sworn testimony that it first acquired actual knowledge of the judgment on July 19. The findings of fact from the hearing recite that Thermex "did not have actual knowledge of the [j]udgment herein, until July 19, 1988...." Despite this finding, the trial court overruled Thermex's motion for new trial for other reasons.

Thermex concludes that the trial court's finding started the appellate timetable running from July 19, the date on which Thermex first learned of the judgment. TEX.R.CIV.P. 306a(4); see also TEX.R.APP.P. 5(b)(4). Therefore, Thermex argues that it had until August 18 by which to file a motion for new trial. TEX.R.CIV.P. 329b(a). In addition, it argues that its July 28 motion for new trial was timely, so that it had until October 17 by which to file its cost bond to perfect this appeal. TEX.R.APP.P. 41(a)(1). Thermex did file a cost bond on that date.

Rantec argues that, because Thermex never filed a sworn motion as required by rule 306a(5), the appellate timetable never shifted. Rantec concludes that the appellate timetable began on June 10, the date that judgment was actually entered. It argues that Thermex had to file either a motion for new trial or a cost bond, to perfect this appeal, by July 11 (because July 10 was a Sunday). TEX.R.CIV.P. 329b(a); TEX.R.APP.P. 41(a)(1). Because Thermex did neither by that date, Rantec urges us to dismiss this appeal because it was not timely perfected.

The clerk was not certain whether the transcript reflected a timely cost bond. In accordance with rule 56(a) of the Texas Rules of Appellate Procedure, the clerk noted on the transcript that it was received on November 1. He did not, however, file the transcript. Thermex, arguing that the bond and the transcript were both timely, brings the instant motion to compel the clerk to file the transcript in this appeal, so that the appeal might proceed.

Rantec does not dispute that, at the August 16 hearing, it did not object to Thermex's rule 306a motion on the ground that it was not verified. (If Rantec had objected at that time, Thermex presumably would have had sufficient time to file a sworn motion that complied in all respects with rule 306a(5). Thus, it could have timely cured the defect of which Rantec, for the first time on appeal, complains.) The sole issue placed before this Court by Thermex's motion and Rantec's response is whether Thermex's failure to verify its rule 306a motion deprived the trial court of jurisdiction to find that Thermex acquired actual knowledge of the judgment only on July 19; if the trial court lacked such jurisdiction, then Thermex did not file a timely cost bond and we ourselves do not have jurisdiction over this appeal.

Rule 306a(5) states:

5. Motion, notice and hearing. In order to established [sic ] the application of paragraph (4) of this rule [extending the appellate timetable], the party adversely affected [by a judgment of which he has received late notice] 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 and that this date was more than twenty days after the judgment was signed.

TEX.R.CIV.P. 306a(5) (Vernon Supp.1989). There is no dispute that Thermex proved to the trial court's satisfaction, by sworn testimony, that it in fact acquired actual knowledge of the adverse judgment only on July 19. Nevertheless, the mere fact that the trial court considered Thermex's motion for new trial, made a finding of fact after taking evidence at the hearing, and then overruled the motion does not in itself mean that the motion was properly before the trial court or that it was effective to extend the appellate timetable. See Malik v. Hidden Valley Civic Club, 601 S.W.2d 59, 61 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981).

The Supreme Court of Texas has stated that compliance with rule 306a is jurisdictional. Memorial Hospital of Galveston Co. v. Gillis, 741 S.W.2d 364, 365 (Tex.1987) (per curiam); see also Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.1986) (per curiam) (effect of failure to comply with rule 165a governing motions to reinstate after dismissals for want of prosecution); Olvera v. Olvera, 705 S.W.2d 283, 284 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.) (per curiam) (on mot. for reh'g) (a movant under rule 306a must not only file a sworn motion, but also take action to obtain a hearing on the motion). Those cases, however, are all distinguishable from the present case.

In Gillis, the trial court, as in this case, conducted a hearing on a rule 306a motion. The rule 306a motion attacked an order dismissing Gillis's action for want of prosecution. After the hearing, the trial court ordered the cause reinstated. The Supreme Court noted, however, that the record did not show what happened at the hearing and that the reinstatement order did not contain any findings of fact. Gillis, 741 S.W.2d at 365. In short, the record did not establish that Gillis had proven to the trial court's satisfaction the date on which she had acquired actual knowledge of the dismissal order. In this case, the record affirmatively reflects the trial court's finding that Thermex first acquired actual knowledge of the trial court's judgment on July 19. Thermex, unlike Gillis, thus brings us a complete record supporting its argument for when the timetable for this appeal started to run.

In Butts, the trial court dismissed Butts's action for want of prosecution. It then denied an unverified motion to reinstate under rule 165a of the Texas Rules of Civil Procedure. The opinion of the Austin Court of Appeals makes clear that the trial court heard Butts's motion, denied it, and denied leave to file an amended, verified motion. See Butts v. Capitol City Nursing Home, Inc., 700 S.W.2d 628, 629 (Tex.App.--Austin 1985), aff'd per curiam, 705 S.W.2d 696 (Tex.1986) (per curiam). Thus, it is apparent that there was an objection to Butts's failure to verify her motion. In this case, Rantec made no such objection. Furthermore, in Butts, there is no indication that Butts introduced sworn testimony. Thus Butts apparently tendered no evidence of any kind, either live or by affidavit, to show when Butts first acquired actual knowledge of the dismissal order. Without any evidence, the trial court was not empowered to make any finding of any kind. In this case, Thermex did introduce live testimony to support its allegations. Therefore, there was evidence before the trial court to support its finding of when Thermex first acquired actual knowledge of the trial court's judgment.

In Olvera, Mr. Olvera took no action to obtain a hearing on his motion. Because his motion was sworn, it set forth prima facie evidence of the date on which Mr. Olvera first acquired actual knowledge of the trial court's judgment, but he made no effort to prove the allegations of the motion to the trial court. Olvera, 705 S.W.2d at 284. In this case, Thermex not only obtained a hearing on its motion, but also succeeded in proving, to the trial court's satisfaction, that it did indeed acquire actual knowledge of the trial court's judgment only on July 19.

Thus, while we acknowledge that compliance with rule 306a is jurisdictional, we do not read the cases cited above to say that any failure to comply with the rule, no matter how slight or otherwise harmless, defeats a court's jurisdiction. A movant under rule 306a must submit...