Roger B. Williams v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00172-CR

Roger B. Williams,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 22879

MEMORANDUM  Opinion

          Roger B. Williams was convicted of possession of a controlled substance and sentenced to two years in state jail on March 3, 2006.  He did not make any requests that would extend the time to file a notice of appeal; therefore, his notice of appeal was due April 2, 2006.  Tex. R. App. P. 26.2(a)(1).  Williams filed a notice of appeal on May 4, 2006, 32 days late.  We have no jurisdiction of an untimely filed notice of appeal.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).

          The Clerk of this Court warned Williams that because the notice of appeal appeared untimely, the Court may dismiss the appeal unless a response was filed showing grounds for continuing the appeal.  See Tex. R. App. P. 44.3. 

          Recognizing that the notice of appeal was untimely, Williams request that this Court grant him an out of time appeal.  We have no jurisdiction to grant that request.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Fowler v. State, 16 S.W.3d 426, 427-428 (Tex. App.—Waco, pet. ref’d).

          This appeal is dismissed. 

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed August 9, 2006

Do not publish

[CR25]

an amended motion for new trial.  Texas MRG argues that its amended motion for new trial would not have acted as a surprise to Schunicht because all the facts in the amended motion were admitted as evidence on the day of the hearing.  Therefore, Texas MRG argues that the trial court erred in denying the motion.

          However, Texas MRG filed its motion for leave to file an amended motion for new trial more than thirty days after the default judgment was signed and after its original motion for new trial was overruled by operation of law on December 31.  Tex. R. Civ. P. 329b(c); Smith v. Commn. for Law. Disc., 42 S.W.3d 362, 363 n. 3 (Tex. App.—Houston [14th Dist.] 2001, no pet.).  “One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment or other order complained of is signed.” Tex. R. Civ. P. 329b(b).  Though the trial court had plenary power over the case thirty days after Texas MRG’s motion was overruled by operation of law, Rule 5 does not allow the trial court to enlarge the time for filing new trial motions.  Tex. R. Civ. P. 5; Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003) (citing A.F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, 854 (1952)).  In Moritz, the Texas Supreme Court held that “a trial court’s order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period.”  Id. (citing Thomas v. Davis, 553 S.W.2d 624, 626 (Tex. 1977)).  Similarly, the trial court’s denial of Texas MRG’s motion for leave to file an amended motion for new trial is not preserved for our review.  We overrule Texas MRG’s third issue.

II. Default Judgment

          Texas MRG argues that the court erred in denying its motion for new trial because the service of citation was improper and the requirements of the Craddock test are met.

          We review the denial of a motion for new trial for an abuse of discretion.  Limestone Const., Inc. v. Summit Commercial Indus. Prop., Inc., 143 S.W.3d 538, 542 (Tex. App.—Austin 2004, no pet.).  Texas MRG’s motion for new trial was overruled by operation of law.  Tex. R. Civ. P. 329b(c).  Therefore, we look to whether the trial court abused its discretion in allowing the motion to be overruled.  Bank One of Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992); Limestone Const., Inc., 143 S.W.3d at 542.  A trial court abuses its discretion when it acts arbitrarily or without reference to guiding legal principles.  Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Limestone Const., Inc., 143 S.W.3d at 542.

          Also, we must determine what evidence we may consider in analyzing whether the trial court abused its discretion in denying Texas MRG’s motion for new trial.  The trial court held a hearing after Texas MRG’s original motion for new trial was overruled by operation of law, yet still within the trial court’s plenary power.  At the hearing, the trial court admitted evidence that was attached to Texas MRG’s untimely amended motion for new trial, though the court denied leave to file the amended motion.  As stated above, the Texas Supreme Court has held that an untimely filed motion for new trial cannot be considered on appellate review.  Moritz, 121 S.W.3d at 720.  The question becomes whether we can consider the evidence Texas MRG admitted at the hearing in deciding whether the trial court abused its discretion. 

          In Moritz, the Texas Supreme Court held:

If the trial court ignores the tardy motion [for new trial], it is ineffectual for any purpose.  The court, however, may look to the motion for guidance in the exercise of its inherent power and acting before its plenary power has expired, may grant a new trial; but if the court denies a new trial, the belated motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set forth in a timely motion. 

Moritz, 121 S.W.3d at 720.

          In this case, the court had plenary power to hold a hearing and to consider any evidence raised at that hearing, including evidence attached to Texas MRG’s amended motion for new trial.  Id.  However, the trial court denied Texas MRG’s motion for new trial.  Upon this decision, Texas MRG’s untimely amended motion for new trial and the evidence attached to it became a nullity.  Id; Bank of Tex., N.A., v. Mexia, 135 S.W.3d 356, 359-60 (Tex. App.—Dallas 2004, pet. denied); see also Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 490 n.9 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (finding that under Moritz, the trial court could consider the grounds raised in Oilfield’s untimely supplemental motion because it granted the motion to vacate while it retained plenary power).  Therefore, we cannot consider any grounds for appeal contained in the untimely motion for new trial along with any evidence attached to the untimely motion that was considered by the trial court.  Our review is limited to Texas MRG’s original motion for new trial and evidence connected to the motion.  Moritz, 121 S.W.3d at 720.

A. Improper Service

          Texas MRG argues in its first issue that service of process was improper because the citation names the wrong party.  Texas MRG argues that citation reflects that “Texas MRG, Inc.” is the defendant, when “Texas Mortgage & Real Estate Group, Inc.” is the proper party and was never served.  However, this is the argument Texas MRG makes in its untimely motion for new trial and we may not consider it.  Moritz, 121 S.W.3d at 720.  Texas MRG argues in its original motion for new trial that “Texas MRG, Inc.” was never served process, had no knowledge of the lawsuit, and that the statements of the process server in the return of service were false.

          In reviewing a default judgment, there is no presumption in favor of a valid issuance of service of process.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); N. C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 717 (Tex. App.—Austin 2003, pet. denied).  In order for a default judgment to withstand direct attack, strict compliance with the rules of service of citation must affirmatively appear on the record.  Primate Constr., Inc., 884 S.W.2d at 152; Whitworth, 124 S.W.3d at 718.  Failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect.  Strict compliance requires that the name of the party listed in the return of service essentially match the name of the party named in the citation or petition.  See Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 310-11 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).  

          Schunicht’s petition lists “Texas MRG, Inc.” and “Marshall Hussain” as defendants.  The citation for Hussain reflects that “Marshall Hussain” was personally served with process on March 21, 2003. The citation for Texas MRG reflects that “Texas MRG, Inc., President Marshall Hussain” was personally served with process on March 21, 2003.  The return of service for Hussain states that a true copy of the citation and petition was delivered in person to “Marshall Hussain” and was verified.  The return of service for Texas MRG states that a true copy of the citation and petition was delivered in person to “Texas MRG, Inc.” and was verified.  “As long as the record as a whole, including the petition, citation, and return, shows that the citation was served on the defendant in the suit, service of process will not be invalidated.”  Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App.—Austin 2004, pet. denied).  Given the foregoing, it is clear that Texas MRG was properly served with process.  See Tex. R. Civ. P. 106, 107.  Therefore, the trial court did not abuse its discretion in denying Texas MRG’s motion for new trial.  Limestone Const., Inc., 143 S.W.3d at 542.  We overrule Texas MRG’s first issue.   

B. Craddock

          Texas MRG argues in its second issue that the trial court erred in denying its motion for new trial because the elements of the Craddock test are met.  Under the Craddock test, a default judgment will be set aside and a new trial ordered if: (1) the defendant’s failure to answer was not intentional, or the result of conscious indifference, but was due to mistake or accident; (2) the motion sets up a meritorious defense; and (3) the motion is filed at a time when granting the motion would not delay or injure the plaintiff.  Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939).  If all three elements are met, then the trial court abuses its discretion by denying the motion for new trial.  Lara v. Rosales, 159 S.W.3d 121, 123 (Tex. App.—Corpus Christi 2004, pet. denied) (citing Dir. State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)). 

          Under Texas MRG’s original motion for new trial, Texas MRG argues that it did not receive service of process and that it has a meritorious defense.  Texas MRG does not offer any evidence that its failure to answer is due to mistake or accident nor does it offer any explanation of its failure to answer.  Further, Texas MRG fails to state that granting the motion would not delay or injure Schunicht.  Looking exclusively to Texas MRG’s original motion for new trial, the Craddock elements have not been met.  Craddock, 133 S.W.2d at 126.  Therefore, the trial court did not abuse its discretion in denying Texas MRG’s motion for new trial.  Limestone Const., Inc., 143 S.W.3d at 542.  We overrule Texas MRG’s second issue.

Conclusion

          Having overruled Texas MRG’s issues, we affirm the judgment of the trial court.

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed July 20, 2005

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