Carrera v. Marsh

• Decision Date: 20 January 1993
• Docket Number: No. 08-92-00335-CV,08-92-00335-CV
• Citation: 847 S.W.2d 337
• Parties: Santos CARRERA, Margarita Carrera and Blanca Menesis, Relators, v. The Hon. Herbert E. MARSH, Jr., Judge of the 243rd District Court of El Paso County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 337

847 S.W.2d 337

Santos CARRERA, Margarita Carrera and Blanca Menesis, Relators, v. The Hon. Herbert E. MARSH, Jr., Judge of the 243rd District Court of El Paso County, Texas, Respondent.

No. 08-92-00335-CV.

Court of Appeals of Texas El Paso.

Jan. 20, 1993.

Stephen G. Peters, El Paso, for relators.

Jose E. Troche, Maureen Hilton, Steven L. Hughes, Mounce & Galatzan, El Paso, for respondent.

Before OSBORN, C.J., BARAJAS, J., and STEPHEN F. PRESLAR, C.J., Retired, Sitting by Assignment.

OPINION ON REHEARING

BARAJAS, Justice.

We grant the real parties' in interest motion for rehearing, withdraw our opinion and judgment of November 25, 1992, and substitute the following:

This is an original proceeding seeking to mandamus the Honorable Herbert E. Marsh, Jr., Judge of the 243rd District Court of El Paso County, Texas, Respondent. Relators, Santos Carrera, Margarita Carrera and Blanca Menesis, seek mandamus to correct Respondent's denial of their motion to vacate order granting new trial. Specifically, Relators urge that Respondent exceeded his jurisdiction in granting a motion for new trial in the underlying cause in that the trial court's plenary power had expired and because the trial court's jurisdiction had not been properly reinstated pursuant to Rule 306a of the Texas Rules of Civil Procedure. We conditionally grant the writ of mandamus.

I. PROCEDURAL HISTORY

Relators (plaintiffs below) originally filed suit in Respondent's court on March 12, 1986. Defendants (real parties in interest) timely answered. On October 4, 1990, Relators obtained a partial summary judgment as to liability. On September 20, 1991, Relators appeared before Respondent and obtained a judgment as to damages. Final judgment was entered and signed on October 4, 1991. Defendants and their counsel failed to appear at the hearing on September 20, 1991, allegedly due to lack of proper notice.

Approximately sixty days later, on December 3, 1991, Relators attempted to execute on the judgment. On December 13, 1991, 70 days after the judgment was signed and entered, defendants filed a motion for new trial pursuant to Tex.R.Civ.P. 306a(5). In their motion for new trial, defendants alleged that "neither the Defendants nor Defendant's [sic] counsel received actual notice of the final judgment taken by Plaintiffs in October of 1991, until the Writ of Execution was delivered to the Defendants personally in December of 1991." The motion for new trial was not verified. On December 18, 1991, the trial court entered its order setting hearing on the motion for new trial. Hearing on defendant's motion for new trial was set for 9 a.m., December 20, 1991. On December 20, 1991, the trial court entered its order granting new trial. ¹ No statement of facts regarding the hearing on the motion for new trial heard on December 20, 1991 has been filed by Relators in support of their petition for writ of mandamus.

On February 3, 1992, Relators filed a motion to vacate order granting new trial. A hearing was held before Respondent on March 5, 1992. A statement of facts as to the hearing on Relators' motion to vacate order granting new trial has been filed as an exhibit to Relators' application for writ of mandamus. On March 13, 1992, the court sent a letter to the parties indicating a decision to grant the motion to vacate, on the grounds that the prior new trial order did not reflect a finding of the date defendants received actual notice; and as the court also noted, since there was no hearing, there was no record reflecting such a finding.

On July 21, 1992, upon reconsideration, the court signed an order denying plaintiffs' motion to vacate new trial order. ² It

is this final order which Relators attack by petition for writ of mandamus.

II. DISCUSSION

It is, and has been, the rule in our jurisdiction that in the absence of a timely filed motion for a new trial, or a motion to vacate, modify, correct or reform a judgment, the trial court loses its plenary power over its judgment after 30 days from its signatory date. Holder v. Holder, 808 S.W.2d 197 (Tex.App.--El Paso 1991, no writ); Tex.R.Civ.P. 329b(d). While Tex.R.Civ.P. 306a(3) requires the clerk of the court to give notice of final judgments and other appealable orders by first class mail to all parties or their attorneys of record, such failure of the clerk to give notice does not impair the finality of the judgment or otherwise render it void. See Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex.1974). In that regard, when a litigant proves that he or she did not receive this notice from the clerk of court or otherwise did not receive actual notice within 20 days of the signing of the judgment, the timetables concerning trial court jurisdiction over the case and for filing a motion for new trial are extended for a maximum period of 90 days from the date the order was signed. See Tex.R.Civ.P. 306a(4).

After a court's plenary jurisdiction has expired, it cannot set aside a judgment unless it lacked subject matter jurisdiction to render the judgment in the first place. Middleton v. Murff, 689 S.W.2d 212, 213-14 (Tex.1985); Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 711 (Tex.1961); Davis v. Boone, 786 S.W.2d 85, 87 (Tex.App.--San Antonio 1990, no writ).

Once default judgment is entered by the trial court, it is incumbent on the defaulted party to seek direct relief, if so desired, by pursuing any one of various avenues authorized by Texas law.

The law permits several methods of direct attack. The most common is the Rule 329b motion for new trial. A motion for new trial, if filed, shall be filed prior to or within 30 days after the judgment or other order complained of is signed. Tex.R.Civ.P. 329b(a). In the instant case, under normal circumstances, defendants were required to file their motion for new trial on or before November 3, 1991, the day the trial court's plenary power expired. However, as noted above, an exception to the 30 day rule exists when a party fails to receive notice within 20 days of the signing of the judgment as required by Rule 306a(3). In such a situation, the trial court's plenary power will be extended, and the usual appellate timetables will not begin to run, until the party or their attorney receives notice from the clerk of the court or acquires actual notice. But in no event Texas Rules of Civil Procedure provide that in order to establish the application of paragraph (4) of Rule 306a, the party adversely affected must:

will the running of the timetables begin more than 90 days after the signing of the original judgment. Tex.R.Civ.P. 306a(4).

(a) not have received notice or actual knowledge within 20 days after the judgment is signed;

(b) receive notice or acquire actual knowledge within 90 days after the judgment is signed;

(c) prove in the trial court, on sworn motion and notice, the date on which the party first acquired notice or actual knowledge of the signing and that this date was more than 20 days after the judgment was signed. [Emphasis supplied]

Tex.R.Civ.P. 306a(4) and (5).

The record in the instant case clearly and unequivocally demonstrates that the defendants' unverified motion for new trial was filed more than 30 days from the signing of the judgment as provided for by Tex.R.Civ.P. 329b. ³ The central question thus presented for review is whether defendants' unverified motion for new trial, filed pursuant to Tex.R.Civ.P. 306a(4), is sufficient to reinvoke the jurisdiction of a trial court for the limited purpose of conducting a hearing pursuant to Tex.R.Civ.P. 306a(5). ⁴ For the reasons set forth in this opinion, we find that it is not.

A motion for new trial filed pursuant to Rule 306a is not unlike a motion to reinstate filed pursuant to Rule 165a. ⁵ Both Rules 165a and 306a provide for procedural relief in the event a party fails or neglects to appear at any hearing or trial of which the party had notice. Of greater significance to the instant case, motions to reinstate filed pursuant to Rule 165a and motions for new trial filed pursuant to Rule 306a are procedurally identical in that both require that the motions seeking relief be verified. A proper and timely motion for reinstatement has the same effect as a motion for new trial in respect to extending the time for perfecting an appeal. Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.1986); State v. $2,000,000.00 in United States Currency, 822 S.W.2d 721 (Tex.App.--Houston [1st Dist.] 1991, no writ). An unverified motion to reinstate does not have that effect, however, and cannot operate to extend the appellate timetable under Tex.R.App.P. 41(a). Butts, 705 S.W.2d at 697; Benyo v. Hem, 833 S.W.2d 714, 716 (Tex.App.--Houston [1st Dist.] 1992, no writ); Hales v. Chubb & Son, Inc., 708 S.W.2d 597, 598 (Tex.App.--Houston [1st Dist.] 1986, no writ); See also Jones v. Griege, 803 S.W.2d 486, 487-88 (Tex.App.--Dallas 1991, no writ) (parties generally cannot confer jurisdiction upon the court by waiver by agreeing to having action heard by tribunal that otherwise lacks authority to hear it); Bayoud Compliance with the provisions of Rule 306a is a jurisdictional prerequisite. See Memorial Hospital v. Gillis, 741 S.W.2d 364, 365 (Tex.1987). Unless a party establishes, in the manner prescribed by Rule 306a(5), on sworn motion, that he had no notice or knowledge of the judgment, the general rule prevails: a trial court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment expires 30 days after entry of judgment. Id. at 365, citing Harris County v. Miller, 576 S.W.2d 808 (Tex.1979). ⁶

v. North Cent. Inv. Corp., 751 S.W.2d 525, 528 (Tex.App.--Dallas 1988, writ denied). A trial court abuses its discretion when it grants an unverified motion to reinstate. McConnell v. May, 800 S.W.2d 194 (Tex.1990).

Rule 306a unquestionably places the burden on the movant to prove in the trial court, on...