Garcia v. Longoria, No. 13-04-639-CV (TX 2/16/2006)
| Decision Date | 16 February 2006 |
| Docket Number | No. 13-04-639-CV.,13-04-639-CV. |
| Parties | RICARDO GARCIA, Appellant, v. MIRTA GLORIA LONGORIA, MIGUEL ANGEL LONGORIA, AND DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY, Appellees. |
| Court | Texas Supreme Court |
On Appeal from the County Court At Law No. 5 of Hidalgo County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
This appeal is brought from a "judgment for permanent injunction" which issued on July 13, 2004. In the same matter, the trial court issued an interlocutory default judgment on March 8, 2004, followed by a final judgment dated May 13, 2004. We dismiss for want of jurisdiction.
Appellant, Ricardo Garcia, was involved in an automobile accident with the daughter of appellee, Miguel Angel Longoria, the owner of the vehicle and a resident of Mexico. Garcia alleged that he sustained serious injuries as a result of the accident and sued for relief in cause number 42,138-E, County Court at Law No.5, Hidalgo County, Texas. An interlocutory default judgment was entered on the merits on March 8, 2004. It reflects that the "Court, after having taken judicial notice of its file, finds that Defendants Mirta Longoria and Miguel Angel Longoria, although duly and properly served, have totally failed to file an answer . . . ." After a hearing on the question of damages, final judgment was entered on May 13, 2004, providing that Garcia recover $250,000 jointly and severally from Longoria and his daughter. The judgment disposes of all claims and all parties, reflects that it is a final judgment, and states that any further relief not expressly granted is denied.
An abstract of judgment was issued on June 3, 2004, Garcia obtained a writ of execution, and contacted the sheriff to levy execution on some property of Longoria. On July 2, 2004, Longoria filed a "request for injunctive relief" in the same cause. Longoria claimed the trial court never had jurisdiction over him because he was never served with citation. Longoria also urged that he had not received notice of the final judgment until the sheriff had attempted execution.1
Longoria sought to preclude Garcia from executing the abstract of judgment and/or selling any personal property owned by Longoria, including property subject to the sheriff's levy. Longoria also sought a declaratory judgment that the earlier final judgment was void for want of jurisdiction over him. He urged that the return of citation issued for service upon him reflected that it had been served upon his daughter, and that no order for substituted service had issued. Longoria requested that a temporary restraining order issue without notice, restraining Garcia and the sheriff from executing the abstract of judgment, to be followed by a temporary and then a permanent injunction, and that the court declare the final judgment previously entered void as to Longoria.
The trial court signed a temporary restraining order on July 2, 2004; included in the text of that order is a notice of a hearing for July 12, 2004. There is no indication that notice of either the temporary restraining order or the hearing was forwarded to either Garcia or his counsel and, indeed, Garcia contends that he never received notice. On July 12, 2004, the hearing proceeded without any appearance by Garcia.
On July 13, 2004, still in cause number 42,138-E, the trial court issued a "judgment for permanent injunction" enjoining Garcia from conducting a sheriff's sale or selling any of the personal property levied upon by the sheriff pursuant to the earlier writ of execution, and from taking any further action pursuant to that writ of execution. Garcia filed a notice of appeal on August 10, 2004, from this "void ex parte permanent injunction" which was entered without any notice to him.2
Garcia raises the following issues on appeal: (1) no motion for new trial or other comparable motion was ever filed to extend the trial's court's plenary power, plenary power expired, and the trial court had no jurisdiction to enter the judgment for permanent injunction; (2) where there is failure to receive notice of a judgment, whether a motion (such as one for a permanent injunction) may serve to extend the effective date of the judgment; or (3) whether a party must comply with rule 306a of the Texas Rules of Civil Procedure in order for a court to act after its plenary power has expired; and (4) whether a party may obtain an ex parte injunction without notice of service to the opposing party. Garcia essentially urges that the order relating to the permanent injunction is void for lack of jurisdiction and lack of notice.
Longoria counters that (1) service against him in the original matter was ineffective and therefore the default judgment and final judgment were "void" as to him; and (2) he was not required to provide notice of the injunction because a party is charged to remain informed of all orders and judgments rendered in a suit.
Our initial inquiry is always whether we have jurisdiction over an appeal.Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). We also consider the trial court's jurisdiction; "[s]ubject matter jurisdiction is essential to the authority of a court to decide a case." Id. The question of jurisdiction is a legal issue; therefore, we apply the de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). A court's jurisdiction is never presumed. Alaniz v. Hoyt, 105 S.W.3d 330, 335 (Tex. App.-Corpus Christi 2003, no pet.) (citing El-Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex. App.-Houston [14th Dist.] 1994, no writ)). If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed. Id.
A trial court retains plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (orig. proceeding) (per curiam). While a timely-filed motion for new trial or other comparable motion will extend that plenary power, no such motion was filed in this matter. See TEX. R. CIV. P. 329b.
After the expiration of those thirty days, the trial court has no authority to set aside a judgment except by bill of review for sufficient cause. TEX. R. CIV. P. 329b(f); Thursby v. Stovall, 647 S.W.2d 953, 954 (Tex. 1983) (orig. proceeding) (per curiam); In re Parker, 117 S.W.3d 484, 487 (Tex. App.-Texarkana 2003, orig. proceeding); In re Garcia, 94 S.W.3d 832, 833-34 (Tex. App.-Corpus Christi 2002, orig. proceeding). If no party to a judgment files a motion to extend the trial court's plenary power, the trial court loses plenary power over the judgment thirty days after the judgment is signed. Bass v. Bass, 106 S.W.3d 311, 314 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Any type of motion, including a motion for new trial, filed more than thirty days after the trial court signs a final judgment is untimely. Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). The trial court's inherent power "does not allow a trial court to disregard the plain language of rule 5 and enlarge the time for filing new trial motions." Id. (citing Tex. R. Civ. P. 5, 329b; A.F. Jones & Sons v. Republic Supply Co., 246 S.W.2d 853, 854 (Tex. 1952)).
An exception to the rule that procedural timetables run from the date the judgment is signed exists for a party who learns of the judgment more than twenty but less than ninety days after it was signed. TEX. R. CIV. P. 306a(4); TEX. R. APP. P. 4.2; Grondona v. Sutton, 991 S.W.2d 90, 91 (Tex. App.-Austin 1998, pet. denied). To benefit from the exception, the party must prove in the trial court, on sworn motion and notice, the date he or his attorney first received notice or acquired actual knowledge of the judgment. TEX. R. CIV. P. 306a(5); Sutton, 991 S.W.2d at 91. If evidence at the hearing establishes the date of notice, appellate deadlines and the court's plenary power start from that date rather than the date the judgment was signed. TEX. R. CIV. P. 306a(4); TEX. R. APP. P. 4.2(a)(1); Sutton, 991 S.W.2d at 91.
Compliance with the provisions of Rule 306a is a jurisdictional requisite. Sutton, 991 S.W.2d at 91; Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987); In re Simpson, 932 S.W.2d 674, 677 (Tex. App.-Amarillo 1996, no writ). The sworn motion serves the purpose of establishing a prima-facie case of lack of timely notice, thereby invoking the trial court's jurisdiction for the limited purpose of holding a hearing to determine the date of notice. Sutton, 991 S.W.2d at 91; Carrera v. Marsh, 847 S.W.2d 337, 342 (Tex. App.-El Paso 1993, orig. proceeding).
The trial court entered a final judgment on May 13, 2005. No motion for new trial or other motion to extend the court's plenary power was filed, and the trial court's jurisdiction expired in June 2005. No bill of review was filed.3 Instead, on July 2, 2005, less than ninety days after the judgment, Longoria filed a motion for injunctive relief.
The motion itself focuses on the harm that would result if Garcia were to be permitted to proceed with execution under the judgment. Nothing in the text of the motion addresses lack of or the date actual notice was received of the final judgment; instead, the argument focuses on inadequacy of service. Attached to the motion is an affidavit which relates that Longoria was "recently informed of an outstanding abstract of judgment against his property . . . as a result of a Writ of Execution which was issued in this case." It then addresses the harm he will sustain if execution is allowed to proceed. Nothing in the affidavit addresses lack of or date of...
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