MIGUEL REGALADO v. NOEMI B. GUERRA A/K/A NOEHMI B. GUERRA A/K/A NOEHMI B. REGALADO--Appeal from 107th District Court of Cameron County
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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 the 107th District Court of
Cameron County, Texas.
MEMORANDUM OPINION ON REHEARING
Before Chief Justice Valdez and Justices Yañez and Benavides
Memorandum Opinion on Rehearing by Justice Yañez
After considering the motion for rehearing filed by appellant, Miguel Regalado, we
deny the motion; however, we withdraw our opinion and judgment of April 22, 2010, and
substitute the following.
The trial court awarded real property owned by 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 (1)
finding that Regalado owed Guerra $28,041.83, which included the original amount
awarded in the 1997 default judgment plus interest and attorney fees; (2) granting Guerra's
"request for levy in satisfaction of the $28,041.83"; and (3) ordering Regalado's "real
property awarded to [Guerra] in satisfaction of the debt owed to her by [Regalado]."
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 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 allegedly
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
On August 21, 2007, Regalado filed his notice of appeal; however, the notice did
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
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
affirmatively shows service of citation" and that Guerra "failed to affirmatively show strict
compliance with the Texas Rules of Civil Procedure regarding issuance of citation,
service[,] and return of process."
In his motion for rehearing, Regalado claims that the June 21, 2007 judgment is void
because it is an attempt to enforce the 1997 default judgment—a judgment that Regalado
argues is void. However, Regalado's attempt to attack the 1997 judgment by appealing
from the June 21, 2007 judgment is improper.6 In order to challenge the 1997 judgment
through a direct attack, Regalado could have filed an appeal or a restricted appeal of the
1997 default judgment in this Court.7 Regalado did neither.8 Therefore, Regalado's
remaining option to challenge the 1997 default judgment was to file a bill of review showing
sufficient cause within the time allowed by law.9 Absent extrinsic fraud,10 a bill of review
must be filed within four years of a judgment.11 Here, Regalado's bill of review challenging
6
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).
7
See In re Vlasak, 141 S.W .3d at 238 n.10.
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) (providing that
a notice of appeal m ust be filed "within 30 days after the judgm ent is signed" and that in a restricted appeal,
the party m ust file the notice of appeal within six m onths after the judgm ent is signed).
9
See T EX . R. C IV . P. 329b(f); 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
In his brief, Regalado does not claim that there was extrinsic fraud.
11
Temple v. Archambo, 161 S.W .3d 217, 227 (Tex. App.–Corpus Christi 2005, no pet.) (providing that
"[a] petition for bill of review m ust be filed within four years of the date of the disputed judgm ent" unless there
is extrinsic fraud) (citing T EX . C IV . P RAC . & R EM . C OD E A N N . § 16.051 (Vernon 2008); Caldwell v. Barnes, 975
4
the 1997 judgment was filed on July 10, 2006; thus, to the extent Regalado challenges the
1997 judgment by direct attack, we hold that Regalado's direct attack is untimely.
Because Regalado did not properly challenge the 1997 judgment by a direct attack,
Regalado's issues challenging the 1997 judgment due to improper service appears to
represent a collateral attack on a final judgment,12 which generally is not allowed.13
A collateral attack, however, is permissible if a judgment is void.14 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."15 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."16
Furthermore,
S.W .2d 535, 538 (Tex.1998)).
12
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).
13
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.").
14
Id. at 346.
15
Id. (citations and internal quotations om itted).
16
Imatani v. Marmolejo, 606 S.W .2d 710, 713 (Tex. Civ. App.–Corpus Christi 1980, no writ).
5
[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.[17]
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] has 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.18 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 1997
default judgment must fail.19 We overrule both of Regalado's issues.
III. CONCLUSION
We affirm the trial court's judgment.
Delivered and filed the
5th day of August, 2010
17
Id.
18
See T EX . R. C IV . P. 239.
19
See Jordan v. Texaco Pacific 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
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