law-post judgment and appellate deadlines - late notice of judgment - extension of time to appeal
appellate deadline |
untimely notice of appeal | motion for extension of time to file notice of appeal
DWOJ | preservation of error for appellate review | appealing errors in admission or exclusion of evidence


Unless a party adversely affected by the judgment does not receive timely notice that a judgment
has been rendered, the period for filing an appeal from the judgment begins to run from the date
the judgment is signed. Tex. R. Civ. P. 306a(1); Tex. R. App. P. 26.1(a). When a party adversely
affected by the judgment does not receive notice or acquire actual knowledge of judgment within
twenty days of the judgment being signed, the period for filing an appeal from the judgment begins
to run from the date the party received notice or acquired actual knowledge of the judgment, rather
than the day the judgment is signed, if the party (1) complies with the sworn motion, notice, and
hearing requirements mandated by rule 306a(5), and (2) proves he received notice of the
judgment more than twenty but less than ninety-one days after it was signed. Tex. R. Civ. P. 306a;
Tex. R. App. P. 4.2; In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding). The
sworn motion establishes a prima facie case that the party lacked timely notice and invokes a trial
court's otherwise-expired jurisdiction “for the limited purpose of holding an evidentiary hearing to
determine the date on which the party or its counsel first received notice or acquired knowledge of
the judgment.” Lynd, 195 S.W.3d at 685 (emphasis added); see also Conquest v. Spencer, 331 S.
W.3d 537, 538 (Tex. App.-Dallas 2011, no pet.). For purposes of appellate jurisdiction, the trial
court must sign a written order specifying the date when the party or the party's attorney first
learned of the judgment. Tex. R. App. P. 4.2(c); Samuels v. Perry, No. 05-10-01577-CV, 2011 WL
1500597, at *1 (Tex. App.-Dallas Apr. 21, 2011, no pet.) (mem. op.).

The Texas Supreme Court has concluded that notice received more than ninety days from when a
judgment is signed “is simply not covered” by rule 306a. Levit v. Adams, 850 S.W.2d 469, 470
(Tex. 1993) (per curiam); see also Lynd, 195 S.W.3d 684 n.2 (“Rule 306a(4) does not apply and
cannot serve to extend a trial court's plenary power when a party learns of final judgment more
than ninety days after it is signed.”).

A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final
judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308,
310 (Tex. 2000). The period of plenary power may be extended, however, by timely filing an
appropriate postjudgment motion. Lane Bank, 10 S.W.3d at 310. Thus, the filing of a motion for
new trial, a motion to modify, correct, or reform the judgment, or a request for findings of fact and
conclusions of law within the initial thirty-day period extends the trial court's jurisdiction over its
judgment up to an additional seventy-five days and extends the time period for filing a notice of
appeal until ninety days after the judgment was signed. Id.; see also Tex. R. Civ. P. 329b(g); Tex.
R. App. P. 26.1(a). A timely postjudgment motion that seeks a substantive change in an existing
judgment qualifies as a motion to modify under rule 329b(g). Lane Bank, 10 S.W.3d at 313.

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