Nedd-Johnson v. Wells Fargo Bank, N.A.
2010 Tex. App. LEXIS 9997
| Tex. App. | 2010Background
- Judgment date: May 3, 2010.
- Nedd-Johnson filed an untimely motion for new trial on June 21, 2010 claiming actual notice on May 24, 2010 pursuant to Tex. R. Civ. P. 306a(5).
- Trial court held a hearing on notice and the motion but did not make a written finding of the date of actual notice.
- Notice of appeal was due June 2, 2010 under Tex. R. App. P. 4.2(c) & 26.1, but appeal was filed August 6, 2010.
- Because no timely notice of appeal was filed, the court lacked jurisdiction and dismissed the appeal under Tex. R. App. P. 25.1 and 42.3(a).
- The court noted that Rule 306a extensions are jurisdictional prerequisites and require a written trial court finding of the notice date when applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is timely under Rule 4.2(c). | Nedd-Johnson argues 306a extended deadlines and implied notice date from the hearing. | Wells Fargo argues there was no written finding of notice date and no timely notice. | No jurisdiction; untimely notice of appeal. |
| Whether Lynd Co. implicates implied actual notice finding to extend deadlines. | Nedd-Johnson relies on Lynd Co. to imply notice date from proceedings. | Lynd Co. is distinguishable; no implied finding without a written order. | Lynd Co. distinguishable; rule requires written finding; no extension. |
Key Cases Cited
- Lynd Co., 195 S.W.3d 682 (Tex. 2006) (distinguishable on implied-notice analysis; not controlling where no written finding)
- Mem'l Hosp. v. Gillis, 741 S.W.2d 364 (Tex. 1987) (jurisdictional prerequisite for Rule 306a extensions)
- Powell v. McCauley, 126 S.W.3d 158 (Tex.App.-Houston [1st Dist.] 2003) (addresses procedural requirements for extending deadlines under Rule 306a)
- John v. Marshall Health Servs., Inc., 58 S.W.3d 738 (Tex. 2001) (discusses Rule 4.2(c) timing implications for notices of appeal)