Wrong address leads to reversal by restricted appeal

Posted on October 12, 2010 by Byron Henry

The Dallas Court of Appeals recently held that notice of trial sent to an incorrect address constitutes error on the face of the record sufficient to warrant reversal on restricted appeal.  Here, the trial court clerk sent notice of trial to the Plaintiffs at an address containing an incorrect suite number even though the file contained evidence of the correct address.  The notice of trial was returned "Attempted -- Not Known."  Subsequently, the trial court failed to send notice of the dismissal pursuant to TRCP 306a(3).  The court of appeals stated that "[f]ailure to give this notice is also a violation of the [plaintiffs'] due process rights and constitutes error on the face of the record."  Consequently,the court reversed the dismissal of the plaintiffs' claims.

There are two lessons to be learned from this case.  First, check and double-check your addresses.  If you do not trust the clerk, cross-serve required notices on all parties in the case.  Second, all hope is not lost if a party misses the deadline to file a motion for new trial or notice of appeal.  Restricted appeals are alive and well and can be a last resort to attack adverse judgments.  The court's opinion in Smith v. Shipp can be found at this link.    

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Late Notice of the Judgment

Posted on May 29, 2009 by Mike Northrup

When a party (or the party's attorney) does not receive actual notice of an adverse judgment within 90 days of that judgment, the party may make use of Texas Civil Procedure Rule 306a to extend deadlines for filing a motion for new trial or to appeal.  But its important that the party invoking Rule 306a file a sworn motion, obtain a hearing on the motion, and get a finding of the trial court as to the date the party (or the party's attorney) first received notice of the judgement.  The Waco Court of Appeals recently explained the consequences of the failure to do so in In the Matter of the Marriage of Rider & Rider.

After Beverly Jane Rider filed an appeal from a final decree of divorce, the clerk of the court noted that it appeared the notice of appeal was untimely.  Ms. Rider responded by pointing out that she did not receive a copy of the final decree until 29 days after it was signed and she filed a motion for new trial "pursuant to Rule 306a."  Noting that Ms. Rider never obtained a ruling on her motion, the court of appeals points out that she had not fully complied with Rule 306a(5), which requires a hearing, proof, and a ruling.  Accordingly, the court holds that the notice of appeal Ms. Rider filed was untimely and the court dismissed the appeal for lack of jurisdiction.  The opinion may be found at this link.

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