Vallejo v. Ocampo-Vallejo (In re Vallejo)
| Decision Date | 20 August 2020 |
| Docket Number | NUMBER 13-20-00235-CV,NUMBER 13-20-00239-CV |
| Parties | IN RE ALFREDO TOMAS VALLEJO ALFREDO TOMAS VALLEJO, Appellant, v. MARIBEL MILAGRO OCAMPO-VALLEJO, Appellee. |
| Court | Texas Court of Appeals |
On Petition for Writ of Mandamus.
On appeal from the 24th District Court of Victoria County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
1
By petition for writ of mandamus filed in cause number 13-20-00235-CV and by notice of appeal filed in cause number 13-20-00239-CV, Alfredo Tomas Vallejo (Vallejo) seeks to set aside a November 15, 2019 order granting a new trial. We conditionally grant the petition for writ of mandamus in 13-20-00235-CV and we dismiss the appeal in 13-20-00239-CV.
This original proceeding and appeal arise from a divorce and child custody proceeding involving Vallejo and Maribel Milagro Ocampo-Vallejo (Maribel). On May 17, 2018, the trial court signed temporary orders. On November 20, 2018, the trial court signed an order allowing Maribel's counsel to withdraw. On March 8, 2019, the trial court set the case for trial on the merits for June 25, 2019. Counsel for Vallejo appeared, but Maribel did not. The trial court reset the case for a trial on the merits on September 17, 2019. Again, counsel for Vallejo appeared, but Maribel did not. After hearing evidence from Vallejo, the trial court signed the final decree of divorce on September 17, 2019.
On November 8, 2019, Maribel filed a verified motion for new trial. She asserted that she did not receive "actual notice of the final trial date in this case" despite Vallejo'sknowledge of her whereabouts, that this error "was reasonably calculated to cause and probably did cause rendition of an improper judgment," that she had "a meritorious defense to the cause of action alleged in this case," and that Vallejo would not be harmed by granting a new trial.
On November 15, 2019, Vallejo filed a response to the motion for new trial asserting, inter alia, that the trial court lacked plenary power to grant Maribel's motion for new trial. That same day, the trial court held a non-evidentiary hearing on Maribel's motion for new trial. At the hearing, Maribel's counsel argued that she had "temporarily withdrawn" from the case in November 2018, and Maribel failed to receive notice of the final trial date. Counsel asserted that Maribel did not receive notice until "late October, early November, past 30 days after the judgment was signed, that a default judgment had been rendered in favor of dad giving him custody of the children." She asserted that the divorce decree was signed "outside [Maribel's] presence and without her knowledge." The trial court agreed to take judicial notice of the contents of the file "with respect to what the clerk may or may not have done." In response, counsel for Vallejo asserted that Maribel was required to file her motion for new trial within thirty days of the signing of the decree, but did not do so, and the trial court's plenary power had thus expired.
On November 15, 2019, the trial court granted Maribel's motion for new trial. The new trial order does not state a rationale for the ruling and the record does not contain findings or conclusions in support of the trial court's order.
On May 26, 2020, Maribel filed a "First Amended Motion for Enforcement of Temporary Orders for Child Support, Spousal Support, and Attorney's Fees, and Order to Appear." On May 27, 2020, the trial court signed a "First Amended Order for Issuanceof Writ of Habeas Corpus for Children," which required Vallejo to produce the parties' three minor children and appear at a hearing to determine whether the children should be returned to Maribel.
On June 5, 2020, Vallejo filed his petition for writ of mandamus in appellate cause number 13-20-00235-CV. Vallejo contends by two issues that (1) the trial court's plenary power had already expired when it signed the order granting a new trial, and (2) alternatively, if the trial court's plenary power had not expired, the trial court abused its discretion by granting the motion for new trial. On June 11, 2020, this Court requested that Maribel, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus on or before the expiration of ten days. See TEX. R. APP. P. 52.2, 52.4, 52.8. The Court did not receive a response to the petition for writ of mandamus. Subsequently, the Court has twice attempted to reach counsel for Maribel regarding our request for a response; however, Maribel has neither responded, nor filed a motion for extension of time, nor filed a response to the petition for writ of mandamus.
On June 5, 2020, Vallejo also filed a notice of appeal in cause number 13-20-00239-CV assailing the November 15, 2019 order granting a new trial.
To obtain relief by writ of mandamus, a relator must establish that an underlying order is void or a clear abuse of discretion and that no adequate appellate remedy exists. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). An abuse ofdiscretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide, 494 S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
An order in which the trial court purports to grant a motion for new trial after its plenary power has expired is void. See In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding). When an order is void, the relator need not show the lack of an adequate appellate remedy, and mandamus relief is appropriate. In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig. proceeding); In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam); In re Merino, 542 S.W.3d 745, 747 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding).
A litigant may attack a void judgment either directly or collaterally. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). A judgment is void and subject to collateral attack if there was "a complete failure or lack of service" that violates due process. PNS Stores, Inc., 379 S.W.3d at 274; see In re E.R., 385 S.W.3d 552, 566 (Tex. 2012); In re Merino, 542 S.W.3d at 747. A collateral attack seeks to avoid the binding effect of a judgment to obtain specific relief that the judgment currently impedes. PNS Stores, Inc., 379 S.W.3d at 272. A party may collaterally attack a void judgment at any time, even after time within which to file a direct attack has expired. See id.; In re Merino, 542 S.W.3d at 747; In re Martinez, 478 S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.]2015, orig. proceeding). In contrast, a direct attack—such as an appeal, a motion for new trial, or a bill of review—attempts to correct, amend, modify, or vacate a judgment and must be brought within a certain time period after the judgment's rendition. PNS Stores, Inc., 379 S.W.3d at 271.
Under the Texas Rules of Civil Procedure, the date a "judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order." TEX. R. CIV. P. 306a(1); see N. Burnet Gun Store, LLC v. Tack, Tr. of Harvey Donald Testamentary Family Tr., No. 03-20-00010-CV, 2020 WL 3581560, at *1, ___ S.W.3d ___, ___ (). A trial court retains plenary jurisdiction for a minimum of thirty days after signing a final judgment. TEX. R. CIV. P. 329b(d)-(f); see Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). During this period, the trial court's plenary jurisdiction may be extended by the timely filing of an appropriate post-judgment motion, such as a motion for new trial or a motion to modify, correct, or reform the judgment. See TEX. R. CIV. P. 329b(e), (g); Lane Bank Equip. Co., 10 S.W.3d at 310. A motion for new trial must be filed "prior to or within thirty days after the judgment or other order complained of is signed." TEX. R. CIV. P. 329b(a). Absent a timely-filed motion for a new trial, or a motion to modify, correct, or reform a judgment, the trial court loses its plenary power over its judgment thirty days after the judgment is signed. See id. R. 329b(d); In re Lynd Co., 195 S.W.3d 682, 684 (Tex. 2006) (orig. proceeding). In any event, the court's plenary power may not beextended more than 105 days after the judgment was signed. Lane Bank Equip. Co., 10 S.W.3d at 310.
Texas Rule of Civil Procedure 306a(3) requires the clerk of the court to provide notice regarding the entry of judgments or appealable orders. See TEX. R. CIV. P. 306a(3). The rule states, in relevant part:
When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4).
Id. Paragraph (1), as referenced in the rule, provides that the deadline for filing postjudgment motions, such as a motion for new trial or motion to reinstate a case, begins to run on...
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