In re Max Parast d/b/a Eurocoach Enterprises, Inc.--Appeal from County Court At Law No 10 of Bexar County

MEMORANDUM OPINION
No. 04-03-00340-CV
IN RE Max PARAST d/b/a Eurocoach Enterprises, Inc.
Original Mandamus Proceeding (1)

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 9, 2003

WRIT OF MANDAMUS CONDITIONALLY GRANTED

Max Parast d/b/a Eurocoach Enterprises, Inc. seeks a writ of mandamus to compel the trial court to vacate its order granting a new trial because it was signed after the trial court's jurisdiction had expired. We conditionally grant the writ.

Factual and Procedural Background

After Complete Auto Sales failed to file an answer to Parast's petition , the trial court signed a default judgment on October 17, 2002. On November 8, Complete Auto Sales filed a motion for new trial, supported by the November 5, 2002 affidavit of Complete Auto Sales' registered agent, Graydon Lee Gibson. At a hearing on December 13, the trial court orally granted a new trial but did not sign a written order.

On February 13, 2003, Complete Auto Sales filed a motion asking the trial court to sign an order granting a new trial. The motion, which alleged that Parast's attorney refused to approve a proposed order, did not expressly request relief pursuant to Rule of Civil Procedure 306a(4). However, Gibson's affidavit, filed with the motion, alleged:

... our office did not learn of a suit or judgment via personal service or certified mail.

However, I do remember receiving a letter from [Parast's attorney] some time after a judgment was apparently entered, along with some other mail that had stacked in my absence. I say apparently because I did not receive a signed or dated copy of the judgment from [Parast's attorney]. ...

When I got the letter from [Parast's attorney] I immediately contacted [my attorney's] office. I did not know about the existence of a lawsuit and did not even suspect a judgment could have been entered against Complete Auto in this matter until I opened the letter from [Parast's attorney]. I believe this was on November 4, 2002 because the following day I received an affidavit for signature which I faxed to [my attorney's] secretary who I understood was drafting a motion for new trial at [my attorney's] direction. I later received a message from [my attorney's] secretary advising me that a judgment had in fact been signed and entered in the case, but that [my attorney] had filed a motion for new trial with my affidavit attached. I believe that occurred on November 7, 2002.

No further evidence was presented about the date Complete Auto Sales or its attorney first either received the clerk's notice that a judgment had been signed or acquired actual knowledge that a judgment had been signed. After a hearing on February 13, the trial court signed an order granting the motion for new trial and finding:

The Defendant did not learn of the judgment against the corporation until its president learned of the possible entry of judgment on November 4, 2002 when. [sic] The only copy of the judgment received by Defendant at its office was unsigned.

Parast seeks a writ of mandamus to compel the trial court to vacate its order because, he argues, Complete Auto Sales' motion and the trial court's findings fail to establish the trial court's jurisdiction under Rule 306a, Tex. R. Civ. P.; therefore, the order granting a new trial was signed after the court lost plenary power and is void. We agree.

Applicable Law

When a motion for new trial is timely filed, a trial court's plenary power to vacate, modify, or correct a judgment expires thirty days after the motion for new trial is overruled, either by signed order or by operation of law, whichever occurs first. Tex. R. Civ. P. 329b(e); see Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (holding an oral pronouncement cannot substitute for the signed order required by Rule 329b). Absent a signed order, a motion for new trial is overruled by operation of law seventy-five days after the date the judgment is signed. Tex. R. Civ. P. 329b(c).

As a general rule, the beginning date for calculating when a motion for new trial is overruled by operation of law and thus when a trial court's plenary power expires is the date the judgment is signed. See Tex. R. Civ. P. 306a(1); 329b(c), (e). However, this general rule is subject to the exception found in Rule 306a(4), Tex. R. Civ. P.:

If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all of the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.

Rule 306a(4) is not self-implementing. In re Jones, 974 S.W.2d 766, 768 (Tex. App.-San Antonio 1998, orig. proceeding). To establish the applicability of Rule 306a(4), a party must file a sworn motion setting forth the date on which the party or his attorney first either received the clerk's notice that a judgment has been signed (required by Rule 306a(3)) or acquired actual knowledge that a judgment has been signed. Tex. R. Civ. P. 306a(5); Jones, 974 S.W.2d at 768; City of Laredo v. Schuble, 943 S.W.2d 124, 126 (Tex. App.-San Antonio 1997, orig. proceeding). He must also establish this date in the trial court by competent proof and show that the date is more than twenty days after the judgment was signed. Tex. R. Civ. P. 306a(5); Jones, 974 S.W.2d at 768; Schuble, 943 S.W.2d at 126. Finally, the party must obtain from the trial court a signed order that includes a finding of this date. Tex. R. App. P. 4.2(c); Jones, 974 S.W.2d at 768.

Prerequisites to Mandamus Relief

A writ of mandamus will issue only to correct an abuse of discretion for which the appellate remedy is inadequate. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). The writ is therefore a proper means to compel a trial court to withdraw an order granting a new trial when the order is signed after the trial court's plenary power has expired. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998); Faulkner, 851 S.W.2d at 188.

Discussion

Because Complete Auto Sales timely filed a motion for new trial on November 8, the trial court's plenary power over the October 17 judgment would expire 105 days later on January 30, 2003 unless, before that date, the trial court signed an order granting a new trial. Tex. R. Civ. P. 329b(c),(e). Because the trial court did not do so, the court's plenary power expired on January 30, 2003. Therefore, the trial court's February 13, 2003 order granting a new trial was signed after the trial court lost plenary power and is void, unless jurisdiction was established pursuant to Rule 306a(4)-(5). See Faulkner, 851 S.W.2d at 188.

To establish jurisdiction under Rule 306a, Complete Auto Sales was first required to file a sworn motion and present competent proof that it or its attorney first either received the clerk's notice of judgment or acquired actual knowledge of the signing of a judgment after November 6, 2002 - the twentieth day after the judgment was signed. It failed to do so. Although Complete Auto Sales' sworn motion does not refer to Rule 306a(4) or contain any of the allegations required by Rule 306a(5), it incorporates by reference Gibson's affidavit, which establishes that (1) Complete Auto Sales first "suspect[ed] a judgment could have been entered" on November 4, 2002; (2) on November 5, 2002, Gibson signed an affidavit prepared by Complete Auto Sales' attorney in support of a motion for new trial; and (3) sometime after signing the November 5 affidavit, and Gibson "believes" it was on November 7, 2002, Gibson received a message from his attorney advising him that a judgment had in fact been signed.

Complete Auto Sales thus did not plead or present any evidence of when or whether it or its attorney received the clerk's notice of judgment. Nor did it plead or present evidence of when its attorney first acquired actual knowledge the judgment had been signed. And Gibson's affidavit does not establish that Complete Auto Sales first acquired actual knowledge of the signing of a judgment after November 6. Thus, neither Complete Auto Sales' motion nor its proof suffices to meet its burden under Rule 306a(5).

Finally, the only finding made by the trial court was that Complete Auto Sales "learned of the possible entry of judgment on November 4, 2002." Even assuming this could be construed as a finding of "the date when [Complete Auto Sales] or [its] attorney first either received notice or acquired actual knowledge that the judgment ... was signed," as required by Rule 4.2(c), Tex. R. App. P., the date found is within twenty days of the judgment, thus making Rule 306a(4) inapplicable.

Because Complete Auto Sales failed to meet its burden under Rule 306a(5), the date the default judgment was signed is the beginning date for determining the date the trial court's plenary power over its judgment expired - January 30, 2003. Therefore, the trial court's February 13, 2003 order granting a new trial was signed after its plenary power over the judgment had expired and is void. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998).

Conclusion

Because the trial court's order granting a new trial is void, we conditionally grant Parast's petition for a writ of mandamus and direct the trial court to vacate its "Order Granting Defendant's Motion For A New Trial" in Cause No. 275969, pending in County Court at Law No. 10, Bexar County, Texas within ten days of the date our opinion and order issue. Because we are confident Judge Canales will comply with our order, we instruct the clerk to issue a writ of mandamus only if Judge Canales fails to file proof of his compliance within the ten-day period.

Sarah B. Duncan, Justice

1. This proceeding arises out of Cause No. 275969, styled Max Parast d/b/a Eurocoach Enterprises, Inc. v. Complete Auto Sales, Inc., in the County Court at Law No. 10, Bexar County, Texas, the Honorable H. Paul Canales presiding.