in Re Cindy Lynn Rhodes ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-043-CV
IN RE CINDY LYNN RHODES RELATOR
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ORIGINAL PROCEEDING
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OPINION
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Relator Cindy Lynn Rhodes filed a petition for writ of mandamus asking
this court to (1) find that the trial court abused its discretion by granting the
motion for new trial of Real Party in Interest, Ignacio Rafael De La Fuente, Sr.
after the expiration of the trial court’s plenary power and (2) enter an order
directing the trial court to vacate its February 3, 2009 order granting De La
Fuente’s motion for new trial. We conditionally grant Rhodes’s petition for writ
of mandamus.
Background Facts
On May 15, 2007, Rhodes filed a petition to adjudicate parentage,
naming De La Fuente as the father of minor child C.C.R. De La Fuente denied
the allegations contained in Rhodes’s petition and genetic testing was ordered.
On June 4, 2008, the trial court entered agreed temporary orders, and on
September 11, 2008, the trial court entered a scheduling order setting the trial
for December 4, 2008. On December 3, 2008, the trial court signed an agreed
order on motion for withdrawal of counsel, also signed by De La Fuente,
allowing De La Fuente’s attorney to withdraw from the case. De La Fuente
failed to appear for trial on December 4, 2008, and the trial court signed a final
default judgment on that date.
De La Fuente filed a request for a rule 306a(4) extension to file a motion
for new trial on January 20, 2009. See Tex. R. Civ. P. 306a(4). Attached to
his request was De La Fuente’s affidavit stating that he had not “learned that
there was a ‘final order’ signed by the Court on or about December 4, 2008”
until on or about December 18, 2008. De La Fuente filed a motion for new trial
on January 23, 2009, fifty days after the trial court signed the December 4,
2008 order. On February 3, 2009, sixty-one days after signing the December
4 order, the trial court signed an order granting De La Fuente’s motion for new
trial.
On February 17, 2009, the trial court made a docket entry noting that,
after a conference with the attorneys, the trial court found that it granted the
motion for new trial on February 3, 2009, because rule 306a applied thereby
extending the court’s plenary power to grant a new trial. See Tex. R. Civ. P.
306a(4). The trial court further noted that De La Fuente did not receive notice
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of the judgment or actual notice of signing per rule 306a(5) until December 26,
2008. See Tex. R. Civ. P. 306a(5).
Issue
In her petition, Rhodes argues that the trial court abused its discretion by
granting De La Fuente’s motion for new trial sixty-one days following the final
judgment and that the order granting De La Fuente’s motion for new trial should
be vacated. Rhodes contends that De La Fuente was not entitled to an
extension under rule 306a because he received actual knowledge of the trial
court’s order on December 18, 2008. See Tex. R. Civ. P. 306a(4)–(5).
Specifically, Rhodes points to De La Fuente’s affidavit in which he states that
he contacted the court clerk on or about December 18, 2008, and “learned that
there was a ‘final order’ signed by the Court on or about December 4, 2008.”
Rhodes argues that De La Fuente cannot meet the rule 306a(5) burden and,
thus, was not entitled to rule 306a relief because his affidavit establishes that
he had actual knowledge of the order fourteen days after the judgment was
signed. Id. Accordingly, Rhodes argues that De La Fuente was not entitled to
an extension of the January 5, 2009 deadline for filing post-judgment motions;
the trial court’s plenary power was not extended past that time; and the trial
court abused its discretion by signing an order for new trial on February 3,
2009, after the plenary power of the trial court had expired. See Tex. R. Civ.
P. 306a(4).
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Substantive Law
If a party adversely affected by the judgment or other appealable order
does not receive notice from the district clerk or acquire actual knowledge of
the judgment or order within twenty days of the signing of the judgment or
order, the postjudgment timetables begin on the date that the party or its
attorney received notice or actual knowledge of the order, provided that the
party (1) complies with the sworn motion, notice, and hearing requirements
mandated by rule 306a(5), and (2) proves that he received the notice of
judgment or order more than twenty but less than ninety-one days after it was
signed. See Tex. R. Civ. P. 306a(4)–(5); Mem’l Hosp. of Galveston County v.
Gillis, 741 S.W.2d 364, 365 (Tex. 1987); Nathan A. Watson Co. v. Employers
Mut. Cas. Co., 218 S.W.3d 797, 800 (Tex. App.—Fort Worth 2007, no pet.).
The sworn motion establishes a prima facie case that the party lacked timely
notice and invokes a trial court’s otherwise-expired jurisdiction for the limited
purpose of holding an evidentiary hearing to determine the date on which the
party or its counsel first received notice or acquired knowledge of the judgment.
See Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—Fort Worth
2004, pet. denied); Grondona v. Sutton, 991 S.W.2d 90, 91–92 (Tex.
App—Austin 1998, pet. denied); see also Jon v. Stanley, 150 S.W.3d 244,
248 (Tex. App.—Texarkana 2004, no pet.). As the factfinder, the trial court
weighs the evidence and judges a witness’s credibility, and the trial court may
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accept or reject any witness’s testimony in whole or in part. See Welborn
Mortgage Corp. v. Knowles, 851 S.W.2d 328, 332 (Tex. App.—Dallas 1993,
writ denied).
De La Fuente, a California resident, provided an affidavit which stated
that he contacted the trial court on December 18, 2008, and was told that an
order had been signed by the court on December 4, 2008, but that the order
had not yet been mailed to him; he asked for the order to be sent to him
immediately; the envelope containing the order demonstrates it was mailed on
either December 18, 2008, or December 19, 2008;1 and that he did not receive
the envelope containing the order until sometime after Christmas Day,
December 25, 2008. His affidavit concludes by stating that he did not receive
“actual and legal notice of the execution or substance of the [order] until after
twenty days after the [order] was signed.”
In essence, De La Fuente contends that he did not receive notice of the
order until he received the order and became aware of its contents. However,
rule 306a does not require knowledge of the contents of the order. See Tex.
R. Civ. P. 306a(4)–(5). Rather, the rule concerns when the party or his
attorney either received notice of the judgment or order or when the party
acquires actual knowledge of the judgment or order itself. See id.; Gillis, 741
S.W.2d at 365; Nathan A. W atson Co., 218 S.W.3d at 800. Instead of
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… The envelope is stamped “12-19-08.”
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establishing a prima facie case that he lacked timely notice which would invoke
the trial court’s otherwise-expired jurisdiction for the limited purpose of holding
an evidentiary hearing, De La Fuente’s affidavit conclusively establishes that he
acquired actual knowledge of the judgment on December 18, 2008, only
fourteen days after it was signed. Because De La Fuente obtained actual
knowledge of the order within twenty days after the judgment was signed, he
cannot invoke rule 306a. See Tex. R. Civ. P. 306a(4)–(5); Gillis, 741 S.W.2d
at 365; Nathan A. Watson Co., 218 S.W.3d at 800. Accordingly, the trial
court abused its discretion by granting De La Fuente’s motion for new trial after
the expiration of the trial court’s plenary power.
Conclusion
We conclude that the trial court abused its discretion by granting De La
Fuente Sr.’s motion for new trial. We conditionally grant Rhodes’s petition for
writ of mandamus. We are confident that the trial court will vacate its February
3, 2009 order granting De La Fuente’s motion for new trial, and the writ will
issue only if the trial court fails to do so.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT; GARDNER; and MEIER, JJ.
DELIVERED: July 27, 2009
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