Miguel Regalado v. Noemi B. Guerra A/K/A Noehmi B. Guerra A/K/A Noehmi B. Regalado ( 2010 )

NUMBER 13-07-00526-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MIGUEL REGALADO, Appellant,
v.
NOEMI B. GUERRA A/K/A
NOEHMI B. GUERRA A/K/A
NOEHMI B. REGALADO, Appellee.
On appeal from 107th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Benavides
Memorandum Opinion by Justice Yañez
The trial court awarded real property owned by appellant, Miguel Regalado, to
appellee, Noemi B. Guerra a/k/a Noehmi B. Guerra a/k/a Noehmi B. Regalado, in
satisfaction of a debt.1 By two issues, Regalado appeals.2 We affirm.
I. BACKGROUND
On April 12, 2006, Guerra, a judgment creditor, filed an application for turnover
relief, requesting turnover of real property owned by Regalado in satisfaction of a default
judgment entered in favor of Guerra on September 2, 1997.3 Regalado filed a general
denial in May 2006, and then filed his first amended bill of review on July 10, 2006,
alleging, among other things, that he had not been properly served with citation of process
before entry of the 1997 default judgment. In response to Regalado's bill of review, Guerra
filed a motion for summary judgment, which the trial court granted on March 7, 2007.4
The trial court granted Guerra's application for turnover relief on May 31, 2006,
ordering Regalado to turn over to Guerra's trial counsel "all records and documents"
regarding his real property. The trial court then signed a judgment on June 21, 2007,
finding that Regalado owed Guerra $28,041.83, which included the original amount
awarded in the 1997 default judgment plus interest and attorney fees, granting Guerra's
"request for levy in satisfaction of the $28,041.83," and ordering Regalado's "real property
awarded to [Guerra] in satisfaction of the debt owed to her by [Regalado]."
On August 21, 2007, Regalado filed his notice of appeal; however, the notice did
1
See T EX . C IV . P RAC . & R EM . C OD E A N N . § 31.002(a) (Vernon 2008) (allowing a party that has already
secured a final judgm ent to collect the judgm ent through a separate court proceeding).
2
W e note that although Regalado's notice of appeal is from an order signed by the trial court on June
21, 2007, in his brief, Regalado neither m entions nor com plains of the June 21 judgm ent. Instead, Regalado
attacks the validity of a default judgm ent in favor of Guerra signed on Septem ber 2, 1997, which served as
the basis of the June 21 judgm ent.
3
Regalado did not appeal from the 1997 default judgm ent and has not filed a notice of appeal of that
judgm ent.
4
Regalado did not appeal the sum m ary judgm ent.
2
not "state the date of the judgment or order" from which Regalado was appealing.5 On
November 15, 2007, this Court informed Regalado that his attempted appeal of the
judgment entered on June 21, 2007, appeared to be untimely. Regalado was instructed
to correct the defect, and this Court abated the case and remanded it to the trial court to
determine when Regalado received notice of the trial court's judgment.
The trial court held a hearing on December 13, 2007, to determine when Regalado
received notice of the judgment. At the hearing, Regalado's trial counsel testified that the
district clerk did not mail the June 21 judgment until July 31, 2007, and that he received it
in the mail on August 3, 2007. On December 13, 2007, the trial court signed an "Order on
Motion to Determine Time of Notice of Judgment" containing the following "findings of fact
and conclusions of law": (1) "The judgment was signed by the [trial] court on June 21,
2007"; (2) "The District Clerk mailed notice of the judgment to counsel for both parties on
July 31, 2007, forty-one (41) days after the judgment was signed [by] the [trial] court"; (3)
"[A]ttorney for Regalado received notice of the judgment on August 3, 2007"; and (4) "[A]s
a matter of law [Regalado's attorney] filed timely notice of appeal after having received
notice of the judgment."
II. DISCUSSION
By his first and second issues, Regalado contends that the trial court "erred" when
it entered a default judgment against him in the underlying 1997 case. Specifically,
Regalado alleges that in that case, "no Return of Citation exists, of record, which
affirmatively shows service of citation" and that Guerra "failed to affirmatively show strict
5
See T EX . R. A PP . P. 25.1(d) (providing that the notice of appeal m ust include the date of the judgm ent
or order the appellant is appealing).
3
compliance with the Texas Rules of Civil Procedure regarding issuance of citation,
service[,] and return of process."
Through this appeal, Regalado attempts to attack the 1997 default judgment;
however, he has not filed a notice of appeal from that judgment.6 Therefore, Regalado has
not perfected his appeal in that case. Furthermore, any attempt by Regalado at a direct
attack7 on the 1997 default judgment on appeal is untimely.8 Although Regalado perfected
a timely appeal of the June 21 judgment, he attempts to appeal from the 1997 default
judgment.9 Regalado's issues challenging the 1997 judgment due to improper service
represent a collateral attack on a final judgment,10 which generally is not allowed.11
6
See T EX . R. A PP . P. 26.1(a) (A notice of appeal m ust be filed "within 30 days after the judgm ent is
signed"); id. R. 26.1(c) (providing that in a restricted appeal, the party m ust file the notice of appeal within six
m onths after the judgm ent is signed).
7
See In re Vlasak, 141 S.W .3d 233, 238 n.10 (Tex. App.–San Antonio 2004, orig. proceeding) ("Direct
attacks in the trial court include the granting of a m otion for new trial and a bill of review. Direct attacks in the
Court of Appeals include an ordinary appeal, an appeal by writ of error [now restricted appeal], and an
appeal . . . from a bill of review judgm ent.") (quoting Glunz v. Hernandez, 908 S.W .2d 253, 255 n.3 (Tex.
App.–San Antonio 1995, writ denied)) (internal quotations om itted) (brackets in original).
8
Even if we were able to construe Regalado's notice of appeal as an attem pt to appeal the 1997
default judgm ent, the appeal is untim ely because Regalado did not file a notice of appeal within thirty days
or within six m onths of the judgm ent as required by rule 26.1. See T EX . R. A PP . P. 26.1(a), (c).
9
In re Vlasak, 141 S.W .3d at 238 n.10 (explaining that the avenues of direct attack on a default
judgm ent are lim ited and that a party should either file a m otion for new trial or bill of review in the trial court
or file an appeal or restricted appeal in the court of appeals when challenging a default judgm ent).
10
See Crawford v. McDonald, 88 Tex. 626, 33 S.W . 325, 327 (1895) ("A direct attack on a judgm ent
is an attem pt to am end, correct, reform , vacate, or enjoin the execution of sam e, in a proceeding instituted
for that purpose, such as a m otion for a rehearing, an appeal, som e form of writ of error, a bill of review, an
injunction to restrain its execution, etc. A collateral attack on a judgm ent is an attem pt to avoid its binding
force in a proceeding not instituted for one of the purposes aforesaid . . . ."); Harris v. Balderas, 27 S.W .3d
71, 73 (Tex. App.–San Antonio 2000, pet. denied) ("W e have defined 'collateral attack' as 'an attem pt to
im peach a judgm ent offered as evidence of som e right,' and as 'an attem pt to avoid [a judgm ent's] binding
force in a proceeding not instituted for the purpose of correcting, m odifying, or vacating it, but in order to obtain
som e specific relief against which the judgm ent stands as a bar.") (internal citations and quotations om itted)
(brackets in original).
11
See Browning v. Prostok, 165 S.W .3d 336, 345 (Tex. 2005) ("Collateral attacks on final judgm ents
are generally disallowed because it is the policy of the law to give finality to the judgm ents of the courts.").
4
A collateral attack, however, is permissible if a judgment is void.12 A judgment is
void "only when it is apparent that the court rendering judgment had no jurisdiction of the
parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the
particular judgment, or no capacity to act."13 Although Regalado contends that he did not
receive proper service, "[i]t is the thoroughly established rule in this state that a defendant
who is not served with process and who does not make any appearance at the trial may
not, as a matter of public policy, attack the verity of a judgment in a collateral attack."14
Furthermore,
[i]t is equally well-settled that, as against a collateral attack, a clear and
definite recital in the judgment on jurisdictional matters is conclusive of the
issue of jurisdiction, imports absolute verity and no evidence of any kind, not
even the remainder of the record, will be considered in contradiction thereof,
even though such evidence would show that jurisdiction was not, in fact,
acquired.[15]
Here, in the 1997 default judgment, the trial court found that it had jurisdiction and
venue over the case, "that citation as to Respondent [Regalado] ha[d] been on file with the
Clerk of the Court for more than ten days preceding the hearing," and that pursuant to rule
239 of the rules of civil procedure, Guerra was entitled to default judgment.16 Therefore,
based on the trial court's finding that it had jurisdiction and that Regalado had been served
with citation of process, we conclude that Regalado's attempted collateral attack on the
12
Id. at 346.
13
Id. (citations and internal quotations om itted).
14
Imatani v. Marmolejo, 606 S.W .2d 710, 713 (Tex. Civ. App.–Corpus Christi 1980, no writ).
15
Id.
16
See T EX . R. C IV . P. 239.
5
1997 default judgment must fail.17 We overrule Regalado's two issues.
III. CONCLUSION
Regalado has not challenged the June 21 judgment; therefore, we affirm.
LINDA REYNA YAÑEZ
Justice
Delivered and filed the
22nd day of April, 2010.
17
See Jordan v. Texaco Pac. Coal & Oil Co., 152 S.W .2d 875, 879 (Tex. Civ. App.–Am arillo 1941,
writ ref'd) ("A recitation or finding that the defendant was served, or by other m eans such as waiver of citation
was before the court, such finding im ports verity and m ay not be im peached by other parts of the record.").
6