NO. 07-02-0235 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANEL A JUNE 11, 2002

______________________________ DENI SE TR EVI NO AN D STE VEN TREV INO, A PPE LLANT S V. W ILLIAM P. HALE, M.D. , APPELLEE

_________________________________ FROM THE 10 8TH DIST RICT COURT OF POTT ER COUNTY; NO. 89,605-E; H ONORAB LE ABELOPEZ, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellants Denise Trevino and Steven Trevino filed a notice of appeal challenging an o rde r of

thetria l cou rt d ism iss ing t heir claims against appellee Wi lliam P. Hale, M.D. and ordering a severance on January 30, 2002. A request for find in gs of fact and conclusions of law w

as filed on March 8, 2002, and the notice of appeal w as filed on May 22, 2002. Noticing that the request for findings of fact and th e notice of appeal were bot h1 The 90th day after January 30, 2002, was April 30, 2002. 2 filed beyond the tim e allowed by Texas Rul e of Civil Procedure 296 and Texas Rule of Appellate Procedure 26.1, by letter dated May 29, 2002, this Court requested tha t appellants show cause within ten days w hy the appeal should not be dism issed for want of jurisdiction. On Jun e 5, 200 2, t he T rev inosfiled a re spo nseex plain ing t hat the y did notreceive notice of the order of

severance signed on January 30, 2002, until February 22, 2002, 23 days la ter. Counsel then correctly argued in his response t hat his appellate timetabl e sho uld begin anew from February

22, 2002. Included w ith his response was a copy of the notice from the District Clerk of Potter C ounty indicating thatthe order of severance had been filed on February 22, 2002, together w ith two affidavits in support of his respons e. Rule 306a(4) of the Texas Ru les of Civil Procedure extends t he plenary power of a trial court when a party advers ely

affected by a j udgme nt fails to receive notice or actual knowledge of the s igning of the j udgme nt within 20 days after it is signed. If notice or actual knowledge of

a s igne d j udg m ent

is n ot r ece ived unt il 20 days after it is signed, the appellate timetable comm ences on the date not ice is actually received. However, the tim eta ble may not begin more than 90 days after the j udgme nt is signed. 1 Tex. R. App. P. 4.2(a); see also Tex. R. Civ. P. 306a(4); In re S impson, 932 S.W.2d 674, 676 (Tex .App. -- Am arillo1996, no w rit). It is incumbent up on the party com plaining of late noti ce to prove3

bysworn m otion, notice, and hearing in t he tri al cou rt thedate on w hich he o r hisattorney first received no tice or actual knowled ge of th e sig ning of the judg ment. Tex. R. Ci v. P. 306a(5). (Em phasis ad ded). A fter a hearing on a 306a(5) motion, the party must obtain a signed order specifying the date that notice or act ual knowledge was first re ce iv ed . T ex. R. App. P. 4 .2(c). Wi thout adhering to the proper proceduresand procurem ent of an order from the trial court findi ng the date on which not ice o r ac tua l know ledg e was r

ece ived , th is Court cannot depart fromthe original appell ate timetab le. Not hing in the record before us indicates that the Trevinos com plied with proper proce dures in the trial court; thus, the ir request for findings of fact was due to be filed on February 19, 2002. Failu re to tim ely f ile the request deprived themof the additi onal 60 days i n which to fil e their not ice of a ppe al. Te x. R. App. P . 26.1 (a)(4 ). Thus, the notice of appeal w as due to be filed no later than March 1, 2002, making the noti ce of appeal filed on May 22, 2002, untimely. Accordingl y, without an order from the trial court reciting the date when the Trevinos or their attorney first received notice th at the orde r of severance was signed , we m ust adhere to the original appellate deadlines and dismiss this appeal for w ant of j urisdiction. Tex. R. A pp. P. 42.3(a).

Don H. Rea vis Justice Do not publish.