In Re Jimmy Anderson--Appeal from 257th District Court of Harris County

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed November 17, 2005

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed November 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00820-CV

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IN RE JIMMY ANDERSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

On August 9, 2005, relator, Jimmy Anderson, filed a petition for writ of mandamus requesting this court to direct Respondent, the Honorable Frank B. Rynd, to vacate his order of July 28, 2005, vacating the Final Decree of Divorce signed April 15, 2005. See Tex. Gov. Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. The record reflects the trial court signed the judgment on April 15, 2005. On July 28, 2005, the trial court set it aside. Jimmy Anderson asserts the trial court=s plenary power had already expired, therefore any action taken by the trial court is a nullity.

Mandamus will issue when there is no other adequate remedy at law to correct a clear abuse of discretion or the violation of a duty imposed by law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985); State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984). A writ of mandamus is appropriate to set aside an order entered after the court=s plenary powers expires and is therefore void. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); In re Parker, 117 S.W.3d 484, 486 (Tex. App. B Texarkana 2003, orig. proceeding).

A trial court retains plenary power over a final judgment for thirty days after signing the judgment. See Tex. R. Civ. P. 329b(d). That thirty-day period may be extended by filing a motion for new trial or motion to modify, correct or reform the judgment. See Tex. R. Civ. P. 329b(a), (g). The Real Party in Interest, Hollie Anderson, argues the notice of appeal of the Associate Judge=s ruling was a post-judgment motion that operated to extend the trial court=s plenary power. The notice of appeal in the record before this court does not reflect a filing date but the certificate of service bears a date of February 18, 2005.[1] Regardless, the notice of appeal is not a post-judgment motion. The notice of appeal to the referring court is not a traditional appeal but begins a de novo hearing in which the referring court may not rely on what occurred before the associate judge. See Attorney General of Tex. v. Orr, 989 S.W.2d 464, 467 (Tex. App. B Austin 1999, no pet). The evidence must be presented again and the party with the burden of proof before the associate judge must carry that burden before the referring court. Id. The findings and recommendations of the associate judge do not become the order of the referring court until the referring court signs an order. See Tex. Fam. Code Ann. ' 201.016(b). It is A[t]he date an order or judgment by the referring court is signed [that] is the controlling date for purposes of appeal.@ Id. Accordingly, the thirty-day period began when the referring court signed its judgment on April 15, 2005, and the trial court lost plenary power on May 15, 2005, the thirtieth day after the judgment was signed.

Hollie Anderson also claims that under Texas Rule of Civil Procedure 306a(4) the trial court=s jurisdiction was extended. Rule 306a provides that if, within twenty days after the judgment is signed, a party has neither received notice nor acquired actual notice, the time periods begin on the date that the party either received notice or acquired actual notice, whichever occurred first, but in no event shall the periods begin more than ninety days after the original judgment was signed. See Tex. R. Civ. P. 306a(4). To invoke this exception, Athe party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.@ See Tex. R. Civ. P. 306a(5). The record does not reflect a motion was filed to extend post-judgment deadlines under Rule 306a. See Jon v. Stanley, 150 S.W.3d 244, 248 (Tex. App. B Texarkana 2004, no pet.); In re Estate of Padilla, 103 S.W.3d 563, 567 (Tex. App. B San Antonio 2003, no pet. h.). Although counsel for Hollie Anderson has filed a sworn affidavit with this court averring he acquired actual notice in June of 2005, no assertion is made that a motion was filed in the trial court pursuant to Tex. R. Civ. P. 306a(5).

The order vacating the divorce decree was entered after expiration of the trial court=s plenary power and no motion was filed that would extend the trial court=s power. Accordingly, the July 28, 2005, order vacating the final divorce decree is void and the trial court abused its discretion in vacating the April 15, 2005, judgment. Since the trial court=s plenary power had expired, the judgment may be set aside only by a timely-filed bill of review for sufficient cause. See Tex. R. Civ. P. 329b(f).

The writ of mandamus is conditionally granted. We are confident the trial court will vacate its order of July 28, 2005. If the trial court fails to do so, the writ will issue.

WRIT CONDITIONALLY GRANTED.

PER CURIAM

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed November 17, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman. (J. Guzman concurs in result only).

[1]The record contains a Stipulated Waiver of Appeal from Associate Judge=s Ruling/Recommendation filed December 6, 2004.