Opinion
No. 04-06-00657-CV
Delivered and Filed: November 29, 2006.
This proceeding arises out of Cause No. 302,753, styled Ferguson Enterprises, Inc. v. Ramos Contracting, Inc. and Larry Ramos, pending in the County Court at Law No. 3, Bexar County, Texas.
Petition for Writ of Mandamus Conditionally Granted.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Ferguson Enterprises, Inc. challenges the trial court's order granting a new trial, arguing that the trial court's plenary power had expired before the motion for new trial was filed. We agree and conditionally grant the writ.
Factual and Procedural Background
On January 5, 2006, the trial court signed a default judgment in favor of relator, Ferguson Enterprises, Inc. ("Ferguson") and against the real parties in interest, Ramos Contracting, Inc. and Larry Ramos, individually as guarantor, jointly and severally. On June 29, 2006, Ferguson filed a post-judgment motion for contempt against both defendants alleging that the Ramos defendants had violated the prior post-judgment court order. On August 7, 2006, the Ramos defendants jointly filed their motion for new trial and the trial court denied it on August 10, 2006. On August 22, 2006, the Ramos defendants filed an amended motion for new trial. On September 21, 2006, the trial court granted the motion for new trial as to Larry Ramos, denied the motion for new trial as to Ramos Contracting, Inc., and stayed Ferguson's motion for contempt as to Ramos Contracting, Inc. until November 9, 2006. Ferguson now files this mandamus petition, specifically arguing among other things, that the September 21, 2006 order granting a motion for new trial is void for lack of jurisdiction because it was granted after the trial court's plenary jurisdiction expired.
Standard of Review
Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy by law, such as an appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). However, when an order granting new trial is void, there is no adequate remedy by appeal. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (when the trial court has no power to grant a new trial, any subsequent retrial is a nullity and appeal is not an adequate remedy). Mandamus will issue to correct new-trial orders signed after plenary jurisdiction has expired. Id.; J.A. Bitter Assoc. v. Haberman, 834 S.W.2d 383, 384 (Tex.App.-San Antonio 1992, orig. proceeding).
Discussion
A trial court retains plenary power for thirty days after a judgment is signed, allowing the court to grant a new trial or to vacate, modify, or correct the court's judgment within that period. Tex. R. Civ. P. 329b(d). The date that the trial court signs the judgment provides the beginning date for calculating the period of the court's plenary power. Tex. R. Civ. P. 306a(1). Rule 306a(4) allows for an extension of the thirty-day period if the clerk does not properly notify a party adversely affected by the judgment within twenty days after the judgment is signed. Tex. R. Civ. P. 306a(4). In such circumstances, the trial court's thirty-day plenary power will begin to run either on the date that the party receives notice or the date that the party acquired actual notice, whichever occurs first. Tex. R. Civ. P. 306a(4). Rule 306a(4)'s extension is not automatic; Rule 306a(5) requires a party seeking to invoke the extension to file a sworn motion to prove that the date on which he first received notice was more than twenty days after the signing of the judgment. Tex. R. Civ. P. 306a(5). Particularly pertinent to the instant case, the timetables concerning trial court jurisdiction over the case and for filing a motion for new trial are extended for a maximum of ninety days from the date the order was signed. Tex. R. Civ. P. 306a(4).
Larry Ramos argues that substitute service on him was improper and therefore the time frames set forth in Rule 306a(4) were not applicable to him. However, timetables for loss of jurisdiction apply even if a court concludes that a defaulted defendant was not properly served. J.A. Bitter Assoc., 834 S.W.2d at 384. The Texas Supreme Court in McEwen v. Harrison held that a defendant who challenges a default judgment on the basis of defective service must do so by motion for new trial, or if the trial court's plenary power has expired, by bill of review. 345 S.W.2d 706, 710 (Tex. 1961) (orig. proceeding); In re Vlasak, 141 S.W.3d 233, 237-38 (Tex.App.-San Antonio 2004, orig. proceeding). The McEwen court specifically stated:
[W]hen the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process.
McEwen, 345 S.W.2d at 710.
The trial court signed the default judgment in favor of Ferguson on January 5, 2006. Absent the application of Rule 306a, the trial court's plenary power expired thirty days later, on February 4, 2006. There is no evidence that the Ramos defendants filed a Rule 306a motion or complied with any of that rule's requirements in the trial court. Accordingly, nothing shows that the trial court's plenary power was properly extended and thus it expired on February 4, 2006. By the time the Ramos defendants filed their amended motion for new trial on August 22, 2006, the trial court had already lost its plenary power. See Kelley v. Southwestern Bell Media, Inc., 745 S.W.2d 447, 448 (Tex.App.-Houston, [1st Dist.] 1988, no writ.). Accordingly, the trial court's September 21, 2006 order granting a motion for new trial is void. We hold that the trial court abused its discretion by issuing this void order. See In re Dickason, 987 S.W.2d. at 571.
Conclusion
We therefore conditionally grant the writ of mandamus. We expect the trial court to vacate its September 21, 2006 order within ten days of our opinion. If the trial court fails to comply, we will issue the writ.
Based on our discussion of the trial court's plenary power and jurisdiction, we need not discuss Ferguson's other issues.