Dismissed and Memorandum Opinion filed November 29, 2022
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00630

- CV

GILCHRIST COMMUNITY ASSOCIATION , Appellant
V.
J. MARCUS HILL AND J AMES E. BRADLEY , Appellee s
On Appeal from the Coun ty Court No
. 2 Galv est on County, Texas Trial Court Cause No. CV76026A

MEMORANDUM OPINION Appellant Gilch rist C o mmunity Association (Gilc h rist) challenges the trial
court ’ s fin a l judgment in favor of appellees J. Marcus Hill and James E. Bradley

. Concluding Gilchrist di d no t t ime ly file its notice of appeal, we dismiss this appeal for want of subject

- matter jurisdiction

. Generally, t he notice of appeal must be filed within 30 days after the2

judgment is signed

. 1 Tex. R. App. P. 26.1

. The period for filing a notice of appe al

m ay be extended to 90 days if any party timely files , among other documents, a motion fo r new tria l. Tex. R. App. P. 26.1 (a)(1) ; see Tex. R. Civ. P. 329b(a) ( motion for new trial shall be filed within thirty days after judgment is signed )

. A timely

- filed n o tice of appeal is a jurisdictional requi rement. In re United Services Auto. Ass ’

n , 307 S.W.3d 299, 307 (Tex. 2010)

. Under Tex as Rule of Appellate Procedur e 4.2, however, t he time for filin g the notice of appeal may begin ru nning later than the sig ning of the judgment if a party adversely affected by the signing does not receive notice of the judgment within 20 days a fter the judgment was signed

. Rule 4.2(a)(1) prov ides: If a party affected by a judgment or other appealable order has not

— within 20 d ays aft e r the judgment or order was signed

— either received the notice required by Texas Rule of Civil Procedure 306a.3 or acquired actual knowledge of the sign ing, then a period that, under these rules, runs from the signing will begin for that party on th e earli e r of the date when the party receives notice or acquires actual knowledge of the signing. But in no event may the period begin more than 90 days after the judgment or order was signed. Tex. R. App. P. 4.2 (a )(1). Rule 4.2 further states that t he pro cedure t o gain additional time is governed by Texas Rule of Civil Procedure 306a (5), which provides: 5. Motion, notice and hearing. In order to establish the application of paragraph (4) of this rule, 2 the party adversely affected is required to prove in t he tria l 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.

1 T he ins tant appe al is not an accel erated or restricted appeal. Tex. R. Civ. P. 26.1(b), (c).

2 Paragraph 4 of Rule 306a discusses circumstances in which a party does not recei ve timel y noti ce o f the tri al court ’ s judgment. Tex. R. Civ. P. 306a(4).3

T ex. R. C iv. P. 306a (5 ) ; see Te x. R. App. P. 4.2(b)

. Texas Rule of Appellate P rocedure 4 .2 further requires that, after the hearing on the Rule 306a(5) motion ,

“ the trial court must sign a written order that finds the date when the party or the party ’ s atto rney fi r st either received notice or acquired actual knowledge that the judgment or order was signed. ” Tex. R. App. P. 4.2(c).
In the inst ant case, the trial court signed its final judgment 3 confi rming an arbitration award in fa vo r of appellees and awardi ng a ppe l lees actual damages and
pre
- and post

-

judgment inte rest from Gilchrist on M ay 25, 2021 . No notice of appeal or motion for new trial was filed within 30 days a fter the judgment was signe d. Tex. R. App. P. 26. 1; Tex. R. Civ. P. 329b(a). Instead, Gilc hrist f i led a motion for vacatur and modi fication of th e arbitration award as well as a verified motion for n ew trial p ursuant to Te xas Rule of Civ il Pro cedure 306(a) on August 17, 2021, 84 days after the trial court si gned its judgment

. See Tex. R. Civ. P. 305a(5 )

. In its motion for new trial, Gilchrist argue d that “ neither [Gilchrist] nor [its] counsel of record received actual notice of the entry of the Final Judgment by June 14, 2021. ” See id

. While it appea rs the trial court held additional proceedings after t h ese filings, ther e is no signed written order in the record finding the date th at Gilchrist or its attorney first either received notice or acquired actual knowledge that the judgment was signed as required by Rul e 4.2. Tex. R. App. P. 4.2(c). Abse nt suc h a signed, written order containing suc h a finding , and absent a tim ely

- filed postjudg ment motion extending the time to file a notice of appeal, Gilchrist ’ s notice of app eal was due 30 days after the trial court signed its judgment on May 25, 202 1

. Tex. R. App. P. 26. 1

. Gilchrist did not file its notice of

3 The tr i al co urt ’ s judgment states, “ This judgment is final, disposes of all claims and all parties , whether brought or could have been brought, including compulsory or permissive counterclaims and is appealable. ” See L ehmann v. Har

- Con Corp. , 39 S.W.3d 19 1, 206 (Tex. 2001)

.4

appeal until N ovember 1, 202 1, 160 da ys after the trial court signed its judgment, making the notice unt imely and depriving th is court of subject

- matter jurisdiction over this appeal. Tex. R. Ap p. P. 4 .2, 26. 1 ; see United Services Auto. Ass ’ n , 307 S.W.3d at 307 ; see also Cantu v. Longoria , 87 8 S.W.2d 131, 131

– 32 (Tex. 1994) ( i f trial court does not determine when party received notice of the judgment under Rule 4.2(c) ’ s predecessor , party is pr ecluded from pursuing appeal ). 4

We di smiss t his appeal for want of subject

- matter jur i sdiction. Tex . R. App. P. 4 2.3 ( a)

. 5

/s/ C har les A. Spai n Justice

Panel cons is ts of Justice s Bourliot, Zimmerer , and Spai n

.

4 Under Cantu , any further relief potentially available to Gilchrist is not ava il able by appeal, and accordingly we deny Gilchrist ’ s request to abate this appeal to the trial court for further proceedings complying with Rule 4.2. See Ca ntu , 87 8 S.W. 2d at 131

– 32 ; see also Unity Nat ’ l Bank v. Scroggins , No. 01

- 20

- 00593

- CV, 2021 WL 489 78 33, at *5 (Tex. App.

— Houston [1st Dist.] Oct. 21, 2021, pet. filed) (mem. op.) (denying requ es t to abate, citing Cantu , and explaining that appellant bea rs bu rden of com pliance with Rule 4.2). This makes sense, gi ven t hat absent the finding required by R ul e 4.2 , there has been no extension of either th e trial court ’ s plenary powe r or the time to file a notice of appeal.

5 Because the parties addressed the ju risdict ional issue in their briefing , notice of involun tary dismiss al is unnecessary. See Tex. R

. App . P . 4 2.3 (a)

.