                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 2-09-043-CV

IN RE CINDY LYNN RHODES                                               RELATOR


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                           ORIGINAL PROCEEDING

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                                   OPINION

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      Relator Cindy Lynn Rhodes filed a petition for writ of mandamus asking

this court to (1) find that the trial court abused its discretion by granting the

motion for new trial of Real Party in Interest, Ignacio Rafael De La Fuente, Sr.

after the expiration of the trial court’s plenary power and (2) enter an order

directing the trial court to vacate its February 3, 2009 order granting De La

Fuente’s motion for new trial. We conditionally grant Rhodes’s petition for writ

of mandamus.

                               Background Facts

      On May 15, 2007, Rhodes filed a petition to adjudicate parentage,

naming De La Fuente as the father of minor child C.C.R. De La Fuente denied

the allegations contained in Rhodes’s petition and genetic testing was ordered.
On June 4, 2008, the trial court entered agreed temporary orders, and on

September 11, 2008, the trial court entered a scheduling order setting the trial

for December 4, 2008. On December 3, 2008, the trial court signed an agreed

order on motion for withdrawal of counsel, also signed by De La Fuente,

allowing De La Fuente’s attorney to withdraw from the case. De La Fuente

failed to appear for trial on December 4, 2008, and the trial court signed a final

default judgment on that date.

         De La Fuente filed a request for a rule 306a(4) extension to file a motion

for new trial on January 20, 2009. See Tex. R. Civ. P. 306a(4). Attached to

his request was De La Fuente’s affidavit stating that he had not “learned that

there was a ‘final order’ signed by the Court on or about December 4, 2008”

until on or about December 18, 2008. De La Fuente filed a motion for new trial

on January 23, 2009, fifty days after the trial court signed the December 4,

2008 order. On February 3, 2009, sixty-one days after signing the December

4 order, the trial court signed an order granting De La Fuente’s motion for new

trial.

         On February 17, 2009, the trial court made a docket entry noting that,

after a conference with the attorneys, the trial court found that it granted the

motion for new trial on February 3, 2009, because rule 306a applied thereby

extending the court’s plenary power to grant a new trial. See Tex. R. Civ. P.

306a(4). The trial court further noted that De La Fuente did not receive notice


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of the judgment or actual notice of signing per rule 306a(5) until December 26,

2008. See Tex. R. Civ. P. 306a(5).

                                      Issue

      In her petition, Rhodes argues that the trial court abused its discretion by

granting De La Fuente’s motion for new trial sixty-one days following the final

judgment and that the order granting De La Fuente’s motion for new trial should

be vacated.    Rhodes contends that De La Fuente was not entitled to an

extension under rule 306a because he received actual knowledge of the trial

court’s order on December 18, 2008.           See Tex. R. Civ. P. 306a(4)–(5).

Specifically, Rhodes points to De La Fuente’s affidavit in which he states that

he contacted the court clerk on or about December 18, 2008, and “learned that

there was a ‘final order’ signed by the Court on or about December 4, 2008.”

Rhodes argues that De La Fuente cannot meet the rule 306a(5) burden and,

thus, was not entitled to rule 306a relief because his affidavit establishes that

he had actual knowledge of the order fourteen days after the judgment was

signed. Id. Accordingly, Rhodes argues that De La Fuente was not entitled to

an extension of the January 5, 2009 deadline for filing post-judgment motions;

the trial court’s plenary power was not extended past that time; and the trial

court abused its discretion by signing an order for new trial on February 3,

2009, after the plenary power of the trial court had expired. See Tex. R. Civ.

P. 306a(4).


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                               Substantive Law

      If a party adversely affected by the judgment or other appealable order

does not receive notice from the district clerk or acquire actual knowledge of

the judgment or order within twenty days of the signing of the judgment or

order, the postjudgment timetables begin on the date that the party or its

attorney received notice or actual knowledge of the order, provided that the

party (1) complies with the sworn motion, notice, and hearing requirements

mandated by rule 306a(5), and (2) proves that he received the notice of

judgment or order more than twenty but less than ninety-one days after it was

signed. See Tex. R. Civ. P. 306a(4)–(5); Mem’l Hosp. of Galveston County v.

Gillis, 741 S.W.2d 364, 365 (Tex. 1987); Nathan A. Watson Co. v. Employers

Mut. Cas. Co., 218 S.W.3d 797, 800 (Tex. App.—Fort Worth 2007, no pet.).

The sworn motion establishes a prima facie case that the party lacked timely

notice and invokes a trial court’s otherwise-expired jurisdiction for the limited

purpose of holding an evidentiary hearing to determine the date on which the

party or its counsel first received notice or acquired knowledge of the judgment.

See Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—Fort Worth

2004, pet. denied); Grondona v. Sutton, 991 S.W.2d 90, 91–92 (Tex.

App—Austin 1998, pet. denied); see also Jon v. Stanley, 150 S.W.3d 244,

248 (Tex. App.—Texarkana 2004, no pet.). As the factfinder, the trial court

weighs the evidence and judges a witness’s credibility, and the trial court may


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accept or reject any witness’s testimony in whole or in part. See Welborn

Mortgage Corp. v. Knowles, 851 S.W.2d 328, 332 (Tex. App.—Dallas 1993,

writ denied).

      De La Fuente, a California resident, provided an affidavit which stated

that he contacted the trial court on December 18, 2008, and was told that an

order had been signed by the court on December 4, 2008, but that the order

had not yet been mailed to him; he asked for the order to be sent to him

immediately; the envelope containing the order demonstrates it was mailed on

either December 18, 2008, or December 19, 2008;1 and that he did not receive

the envelope containing the order until sometime after Christmas Day,

December 25, 2008. His affidavit concludes by stating that he did not receive

“actual and legal notice of the execution or substance of the [order] until after

twenty days after the [order] was signed.”

      In essence, De La Fuente contends that he did not receive notice of the

order until he received the order and became aware of its contents. However,

rule 306a does not require knowledge of the contents of the order. See Tex.

R. Civ. P. 306a(4)–(5).     Rather, the rule concerns when the party or his

attorney either received notice of the judgment or order or when the party

acquires actual knowledge of the judgment or order itself. See id.; Gillis, 741

S.W.2d at 365; Nathan A. W atson Co., 218 S.W.3d at 800.              Instead of


      1
          … The envelope is stamped “12-19-08.”

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establishing a prima facie case that he lacked timely notice which would invoke

the trial court’s otherwise-expired jurisdiction for the limited purpose of holding

an evidentiary hearing, De La Fuente’s affidavit conclusively establishes that he

acquired actual knowledge of the judgment on December 18, 2008, only

fourteen days after it was signed.       Because De La Fuente obtained actual

knowledge of the order within twenty days after the judgment was signed, he

cannot invoke rule 306a. See Tex. R. Civ. P. 306a(4)–(5); Gillis, 741 S.W.2d

at 365; Nathan A. Watson Co., 218 S.W.3d at 800. Accordingly, the trial

court abused its discretion by granting De La Fuente’s motion for new trial after

the expiration of the trial court’s plenary power.

                                    Conclusion

      We conclude that the trial court abused its discretion by granting De La

Fuente Sr.’s motion for new trial. We conditionally grant Rhodes’s petition for

writ of mandamus. We are confident that the trial court will vacate its February

3, 2009 order granting De La Fuente’s motion for new trial, and the writ will

issue only if the trial court fails to do so.




                                                ANNE GARDNER
                                                JUSTICE

PANEL: DAUPHINOT; GARDNER; and MEIER, JJ.

DELIVERED: July 27, 2009



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