Court of Appeals of Texas, Beaumont.
GULF INSURANCE COMPANY and Texas Workers’ Compensation Commission, Appellants,
v.
Jennie MITCHELL, Appellee.
No. 09–96–287 CV.
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Submitted on Jan. 15, 1998.
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Opinion Delivered March 5, 1998.
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Rehearing Overruled April 2, 1998.
Before WALKER, C.J., BURGESS and FARRIS, JJ.
OPINION
FARRIS,1 Justice.
*1 Gulf Insurance Company (Gulf) and the Texas Workers’ Compensation Commission (TWCC) appeal a judgment rendered in favor of appellee, Jennie Mitchell. We dismiss their appeal because it was not timely perfected.
Final judgment was entered in this case on May 9, 1996. Neither Gulf nor TWCC filed a motion for new trial within thirty days of the judgment. On June 17, 1996, Gulf filed an unsworn motion to vacate the judgment. In their motion, Gulf argued that they did not get notice of the May 9, 1996, judgment until June 13, 1996, and that, consequently, in accordance with Tex.R. Civ. P. 306(a), the trial court had authority to set aside the judgment. The court granted their motion on June 18, 1996.
In order to establish the application of rule 306(a), the party adversely affected is required to prove in the trial 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. In the Interest of Simpson, 932 S.W.2d 674 (Tex.App.—Amarillo 1996, no writ); Tex.R. Civ. P. 306(a)(5). Unless a party establishes in the manner prescribed by rule 306(a), on sworn motion, that he had no notice or knowledge of the judgment, the general rule prevails: a trial court’s power to grant a new trial or to vacate, modify, correct, or reform a judgment expires thirty days after entry of judgment. Womack–Humphreys Architects, Inc. v. Barrasso, 866 S.W.2d 809, 813 (Tex.App.—Dallas 1994, writ denied). See also Memorial Hosp. of Galveston County v. Gillis, 741 S.W.2d 364 (Tex.1987); Harris County v. Miller, 576 S.W.2d 808 (Tex.1979); Tex.R. Civ. P. 329b.
A failure to swear to a motion, while a defect, may not necessarily be fatal if a party substantially complies with rule 306(a). Thermex Energy Corp. v. Rantec Corp., 766 S.W.2d 402 (Tex.App.—Dallas 1989, writ denied). In this case, however, Gulf did not substantially comply with the rule. Gulf did not provide a sworn motion to the court in compliance with rule 306(a), nor did the order granting Gulf’s motion to vacate recite that Gulf had no notice or knowledge of the May 9th order. No statement of facts has been brought before us indicating that Gulf sustained its burden of proof at a hearing on the motion to vacate. There is nothing in the record indicating that Gulf met its burden of proof concerning when it actually gained knowledge of the May 9th final judgment; nor is there anything in the record negating the possibility that Gulf acquired actual knowledge of the judgment within twenty days of its signing. Since Gulf did not establish the applicability of rule 306(a)in the trial court in the manner prescribed by the rule and by the Texas Supreme Court, the trial court was without jurisdiction to vacate the judgment. See Gillis, 741 S.W.2d at 365. The court acted after its plenary power had expired. Tex.R. Civ. P. 329b. Because the appeal was not timely perfected, it is dismissed.
*2 APPEAL DISMISSED.
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The Honorable David Farris, sitting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1988). |
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