Opinion
No. 05-10-00917-CV
03-13-2012
ADVOCARE INTERNATIONAL, L.P., Appellant v. BRUCE BADGETT AND TERESA BADGETT, Appellees
DISMISS; Opinion issued March 13, 2012
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-02297-J
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Bridges
On August 4, 2010, appellees Bruce Badgett and Teresa Badgett filed their motion to dismiss appellant Advocare International, L.P.'s appeal for lack of jurisdiction. On August 24, 2010, this court deferred consideration of appellees' motion to the submissions panel. This case was submitted to the panel for consideration on December 14, 2011. For the reasons stated below, we GRANT appellees' motion to dismiss for lack of jurisdiction and DISMISS this appeal.
Background
The trial judge signed a final judgment on the verdict in favor of appellees on April 20, 2010. On July 9, 2010, Appellant filed its motion to extend post-judgment deadlines pursuant to rule 306a(4). The trial court held an evidentiary hearing on appellant's motion on July 20, 2010. On July 21, 2010, the trial court announced the following findings of fact: That on May 18, 2010, Defendant Advocare International, L.P. acquired actual knowledge of the April 30, 2010 signing of the Final Judgment in these proceedings and that such actual knowledge was acquired within twenty (20) days after the date Final Judgment herein was signed on April 30, 2010.
The trial court also announced the following conclusion of law:
That based upon the foregoing findings of fact Tex. Rule Civ. Proc. 306a does not apply.
On July 22, 2010, the trial court signed an order denying appellant's motion to extend post-judgment deadlines. Appellant filed this appeal on July 26, 2010.
Analysis
Rule 306a(4) states:
4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall the period begin more than ninety days after the original judgment or other appealable order was signed.See Tex. R. Civ. P. 306a(4) (emphasis added). The rule provides that the party adversely affected by the judgment must prove the date it acquired actual notice of the judgment. Thermex Energy Corp. v. Rantec Corp., 766 S.W.2d 402, 405 (Tex. App.-Dallas 1989, writ denied).
We review the trial court's findings of the date a party received notice of judgment by the
standards of legal and factual sufficiency of the evidence. See Nathan A. Watson v. Employers Mut. Cas. Co., 218 S.W.3d 797, 800-01 (Tex. App.-Fort Worth 2007, no pet.); Welborn Mortg. Corp. v. Knowles, 851 S.W.2d 328, 331-32 (Tex. App.-Dallas 1993, writ denied).
Appellant cites this Court to both legal and factual sufficiency standards of review in its briefing. However, in its prayer for relief, appellant requested only that this Court "reverse the trial court's order establishing May 18, 2010 as the date [appellant] acquired actual knowledge and render that July 7, 2010 is the date that [appellant] acquired actual knowledge of the judgment." During oral argument, appellant acknowledged that it was requesting this Court make a finding, as a matter of law, of the date on which appellant acquired actual knowledge of judgment. Appellant, therefore, seeks a review of the evidence only under a legal sufficiency standard.
A legal sufficiency challenge may only be sustained when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Watson, 218 S.W.3d at 801 (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998)). The judge may accept or reject any witnesses' testimony in whole or in part. Welborn, 851 S.W.2d at 332 (citing Forscan Corp. v. Dresser Indus., Inc., 789 S.W.2d 389, 394 (Tex. App.-Houston [14th Dist.] 1990, writ denied)). In addition, we may not substitute our judgment for that of the trial court, as the fact finder, even if we could reach a different result on the evidence. Welborn, 851 S.W.2d at 332 (citing Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.-Dallas 1986, writ ref'd n.r.e.)).
In this case, the trial judge found appellant received actual notice of the judgment on May 18, 2010, the date of a letter sent by appellees' counsel (W.D. Masterson) to appellant's counsel (C. Brenton Kugler). In that letter, Masterson states "the Badgetts are interested in attempting to settle the . . . Advocare judgment." During the evidentiary hearing, Mr. Kugler admitted that he both received and read this letter.
Therefore, we conclude there was more than a mere scintilla of evidence that appellant received notice of the judgment on May 18, 2010. See id. Because appellants failed to timely file its notice of appeal, we have no jurisdiction. See Tex. R. App. P. 26.
We GRANT appellee's motion to dismiss for lack of jurisdiction and DISMISS this appeal. Tex. R. App. P. 42.3.
DAVID L. BRIDGES
JUSTICE
100917F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ADVOCARE INTERNATIONAL, L.P., Appellant
V.
BRUCE BADGETT AND TERESA BADGETT, Appellees
No. 05-10-00917-CV
Appeal from the 191st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 07- 02297-J).
Opinion delivered by Justice Bridges, Justices O'Neill and Fillmore participating.
Based on the Court's opinion of this date, this appeal is DISMISSED. It is ORDERED that appellees Bruce Badgett and Teresa Badgett recover their costs of appeal from appellant Advocare International, L.P.
Judgment entered March 13, 2012.
DAVID L. BRIDGES
JUSTICE