                NUMBER 13-20-00235-CV

                 COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI – EDINBURG


             IN RE ALFREDO TOMAS VALLEJO


             On Petition for Writ of Mandamus.


                NUMBER 13-20-00239-CV

                 COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI – EDINBURG


ALFREDO TOMAS VALLEJO,                           Appellant,

                               v.

MARIBEL MILAGRO OCAMPO-VALLEJO,                  Appellee.
                        On appeal from the 24th District Court
                             of Victoria County, Texas.


                               MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria
           Memorandum Opinion by Justice Benavides1

        By petition for writ of mandamus filed in cause number 13-20-00235-CV and by

notice of appeal filed in cause number 13-20-00239-CV, Alfredo Tomas Vallejo (Vallejo)

seeks to set aside a November 15, 2019 order granting a new trial. We conditionally grant

the petition for writ of mandamus in 13-20-00235-CV and we dismiss the appeal in 13-

20-00239-CV.

                                            I. BACKGROUND

        This original proceeding and appeal arise from a divorce and child custody

proceeding involving Vallejo and Maribel Milagro Ocampo-Vallejo (Maribel). On May 17,

2018, the trial court signed temporary orders. On November 20, 2018, the trial court

signed an order allowing Maribel’s counsel to withdraw. On March 8, 2019, the trial court

set the case for trial on the merits for June 25, 2019. Counsel for Vallejo appeared, but

Maribel did not. The trial court reset the case for a trial on the merits on September 17,

2019. Again, counsel for Vallejo appeared, but Maribel did not. After hearing evidence

from Vallejo, the trial court signed the final decree of divorce on September 17, 2019.

        On November 8, 2019, Maribel filed a verified motion for new trial. She asserted

that she did not receive “actual notice of the final trial date in this case” despite Vallejo’s


        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so,” but “[w]hen granting relief, the court must hand down an opinion as in any other case”);
id. R. 47.4 (distinguishing opinions and memorandum opinions).

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knowledge of her whereabouts, that this error “was reasonably calculated to cause and

probably did cause rendition of an improper judgment,” that she had “a meritorious

defense to the cause of action alleged in this case,” and that Vallejo would not be harmed

by granting a new trial.

       On November 15, 2019, Vallejo filed a response to the motion for new trial

asserting, inter alia, that the trial court lacked plenary power to grant Maribel’s motion for

new trial. That same day, the trial court held a non-evidentiary hearing on Maribel’s motion

for new trial. At the hearing, Maribel’s counsel argued that she had “temporarily

withdrawn” from the case in November 2018, and Maribel failed to receive notice of the

final trial date. Counsel asserted that Maribel did not receive notice until “late October,

early November, past 30 days after the judgment was signed, that a default judgment had

been rendered in favor of dad giving him custody of the children.” She asserted that the

divorce decree was signed “outside [Maribel’s] presence and without her knowledge.” The

trial court agreed to take judicial notice of the contents of the file “with respect to what the

clerk may or may not have done.” In response, counsel for Vallejo asserted that Maribel

was required to file her motion for new trial within thirty days of the signing of the decree,

but did not do so, and the trial court’s plenary power had thus expired.

       On November 15, 2019, the trial court granted Maribel’s motion for new trial. The

new trial order does not state a rationale for the ruling and the record does not contain

findings or conclusions in support of the trial court’s order.

       On May 26, 2020, Maribel filed a “First Amended Motion for Enforcement of

Temporary Orders for Child Support, Spousal Support, and Attorney’s Fees, and Order

to Appear.” On May 27, 2020, the trial court signed a “First Amended Order for Issuance



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of Writ of Habeas Corpus for Children,” which required Vallejo to produce the parties’

three minor children and appear at a hearing to determine whether the children should be

returned to Maribel.

       On June 5, 2020, Vallejo filed his petition for writ of mandamus in appellate cause

number 13-20-00235-CV. Vallejo contends by two issues that (1) the trial court’s plenary

power had already expired when it signed the order granting a new trial, and (2)

alternatively, if the trial court’s plenary power had not expired, the trial court abused its

discretion by granting the motion for new trial. On June 11, 2020, this Court requested

that Maribel, or any others whose interest would be directly affected by the relief sought,

file a response to the petition for writ of mandamus on or before the expiration of ten days.

See TEX. R. APP. P. 52.2, 52.4, 52.8. The Court did not receive a response to the petition

for writ of mandamus. Subsequently, the Court has twice attempted to reach counsel for

Maribel regarding our request for a response; however, Maribel has neither responded,

nor filed a motion for extension of time, nor filed a response to the petition for writ of

mandamus.

       On June 5, 2020, Vallejo also filed a notice of appeal in cause number 13-20-

00239-CV assailing the November 15, 2019 order granting a new trial.

                           II. MANDAMUS STANDARD OF REVIEW

       To obtain relief by writ of mandamus, a relator must establish that an underlying

order is void or a clear abuse of discretion and that no adequate appellate remedy exists.

In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). An abuse of



                                                 4
discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made

without regard for guiding legal principles or supporting evidence. In re Nationwide, 494

S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine

the adequacy of an appellate remedy by balancing the benefits of mandamus review

against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig.

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.

       An order in which the trial court purports to grant a motion for new trial after its

plenary power has expired is void. See In re Brookshire Grocery Co., 250 S.W.3d 66, 72

(Tex. 2008) (orig. proceeding). When an order is void, the relator need not show the lack

of an adequate appellate remedy, and mandamus relief is appropriate. In re Vaishangi,

Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig. proceeding); In re Sw. Bell Tel. Co., 35

S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam); In re Merino, 542 S.W.3d

745, 747 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding).

                                   III. VOID JUDGMENTS

       A litigant may attack a void judgment either directly or collaterally. See PNS Stores,

Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). A judgment is void and subject to

collateral attack if there was “a complete failure or lack of service” that violates due

process. PNS Stores, Inc., 379 S.W.3d at 274; see In re E.R., 385 S.W.3d 552, 566 (Tex.

2012); In re Merino, 542 S.W.3d at 747. A collateral attack seeks to avoid the binding

effect of a judgment to obtain specific relief that the judgment currently impedes. PNS

Stores, Inc., 379 S.W.3d at 272. A party may collaterally attack a void judgment at any

time, even after time within which to file a direct attack has expired. See id.; In re Merino,

542 S.W.3d at 747; In re Martinez, 478 S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.]



                                                 5
2015, orig. proceeding). In contrast, a direct attack—such as an appeal, a motion for new

trial, or a bill of review—attempts to correct, amend, modify, or vacate a judgment and

must be brought within a certain time period after the judgment’s rendition. PNS Stores,

Inc., 379 S.W.3d at 271.

                                   IV. PLENARY POWER

       Under the Texas Rules of Civil Procedure, the date a “judgment or order is signed

as shown of record shall determine the beginning of the periods prescribed by these rules

for the court’s plenary power to grant a new trial or to vacate, modify, correct or reform a

judgment or order.” TEX. R. CIV. P. 306a(1); see N. Burnet Gun Store, LLC v. Tack, Tr. of

Harvey Donald Testamentary Family Tr., No. 03-20-00010-CV, 2020 WL 3581560, at *1,

__ S.W.3d __, __ (Tex. App.—Austin July 1, 2020, no pet. h.). A trial court retains plenary

jurisdiction for a minimum of thirty days after signing a final judgment. TEX. R. CIV. P.

329b(d)-(f); see Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.

2000). During this period, the trial court’s plenary jurisdiction may be extended by the

timely filing of an appropriate post-judgment motion, such as a motion for new trial or a

motion to modify, correct, or reform the judgment. See TEX. R. CIV. P. 329b(e), (g); Lane

Bank Equip. Co., 10 S.W.3d at 310. A motion for new trial must be filed “prior to or within

thirty days after the judgment or other order complained of is signed.” TEX. R. CIV. P.

329b(a). Absent a timely-filed motion for a new trial, or a motion to modify, correct, or

reform a judgment, the trial court loses its plenary power over its judgment thirty days

after the judgment is signed. See id. R. 329b(d); In re Lynd Co., 195 S.W.3d 682, 684

(Tex. 2006) (orig. proceeding). In any event, the court’s plenary power may not be




                                                6
extended more than 105 days after the judgment was signed. Lane Bank Equip. Co., 10

S.W.3d at 310.

                                     V. NOTICE OF JUDGMENT

       Texas Rule of Civil Procedure 306a(3) requires the clerk of the court to provide

notice regarding the entry of judgments or appealable orders. See TEX. R. CIV. P. 306a(3).

The rule states, in relevant part:

       When the final judgment or other appealable order is signed, the clerk of
       the court shall immediately give notice to the parties or their attorneys of
       record by first-class mail advising that the judgment or order was signed.
       Failure to comply with the provisions of this rule shall not affect the periods
       mentioned in paragraph (1) of this rule, except as provided in paragraph (4).

Id. Paragraph (1), as referenced in the rule, provides that the deadline for filing

postjudgment motions, such as a motion for new trial or motion to reinstate a case, begins

to run on the date the judgment is signed. See id. R. 306a(1). Paragraph (4) addresses

what happens when a party does not immediately receive notice of a judgment. See id.

R. 306a(4). It provides that, when more than twenty days have passed between the date

that the trial court signs the judgment or appealable order and the date that a party

receives notice or acquires actual knowledge of the signing, the periods referenced in

paragraph (1) will begin on the date the party received notice or acquired actual

knowledge of the signing, whichever is earlier, but in no event will the period begin more

than ninety days after the judgment was signed. Id.; see Pilot Travel Ctrs., LLC v. McCray,

416 S.W.3d 168, 176 (Tex. App.––Dallas 2013, no pet.); see also John v. Marshall Health

Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (per curiam).

       To obtain an extension of postjudgment deadlines under Rule 306a(4), the party

must prove in the trial court, on sworn motion and notice: (1) the date the party or her



                                                 7
attorney first either received a notice of the judgment or acquired actual knowledge of the

signing; and (2) that this date was more than twenty but fewer than ninety-one days after

the judgment was signed. See TEX. R. CIV. P. 306a(4),(5); Estate of Howley v. Haberman,

878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding) (per curiam); In re J.S., 392 S.W.3d

334, 337 (Tex. App.—El Paso 2013, no pet.); Nathan A. Watson Co. v. Employers Mut.

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

sworn motion is to establish a prima facie case of lack of timely notice, thereby invoking

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

evidentiary hearing to determine the date on which the party or the party’s counsel first

received notice or acquired knowledge of the judgment. In re Lynd Co., 195 S.W.3d at

685; Jarrell v. Bergdorf, 580 S.W.3d 463, 467 (Tex. App.—Houston [14th Dist.] 2019, no

pet.); In re Estrada, 492 S.W.3d 42, 50 (Tex. App.—Corpus Christi–Edinburg 2016, orig.

proceeding); In re J.S., 392 S.W.3d at 337. Compliance with the provisions of Rule

306a(5) is a jurisdictional prerequisite to extending the time to file postjudgment motions.

Mem’l Hosp. of Galveston Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam)

In re Estrada, 492 S.W.3d at 50; In re J.S., 392 S.W.3d at 337.

       Unless a party establishes, on sworn motion, in the manner prescribed by Rule

306a(5), that he or she had no notice or knowledge of the judgment within the period

covered by Rule 306a(4), the general rule prevails: a trial court’s plenary power to grant

a new trial or to vacate, modify, correct or reform a judgment expires thirty days after entry

of judgment. Gillis, 741 S.W.2d at 365; see Hanash v. Walter Antiques, Inc., 551 S.W.3d

920, 925 (Tex. App.—El Paso 2018, pet. denied) (“Unless the party establishes at the

hearing that notice was not received or that he or she had no knowledge of the order, the



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beginning of the period of the trial court’s plenary jurisdiction is not re-set and plenary

jurisdiction expires thirty days after the court signs its order.”).

                                         VI. ANALYSIS

       As stated previously, in her motion for new trial, Maribel argued that she lacked

timely notice “of the final trial date in this case.” In contrast, Vallejo contends that Maribel

did not timely file her motion for new trial and that the trial court lacked plenary jurisdiction

to grant Maribel’s motion for new trial.

       Here, the trial court signed the final decree of divorce on September 17, 2019.

Maribel’s motion for new trial was due within thirty days, or by October 17, 2019. See TEX.

R. CIV. P. 329b(a). Maribel did not file her motion for new trial until November 8, 2019,

after the deadline imposed by the rules of civil procedure. See id. Maribel did not file a

motion under Rule 306a(5) to extend the deadline. And, even if we are to consider her

motion for new trial as a Rule 306a(5) motion, it failed to satisfy the requirements of Rule

306a(5). See id. R. 306a(5). Maribel’s motion for new trial is verified insofar as she states

under oath that “[t]he statement contained in paragraph 2 in the motion is within my

personal knowledge and is true and correct.” Paragraph 2 of the motion for new trial

states: “A new trial should be granted to [Maribel] as [she] did not receive actual notice of

the final trial date in this case despite [Vallejo] having personal knowledge of [Maribel’s]

whereabouts.” Maribel’s verification refers to her receipt of notice regarding the “final trial

date” rather than notice of the judgment or actual knowledge of the judgment’s signing,

and it fails to establish the date on which she received notice of the judgment or actual

notice of the signing. See id. Stated otherwise, Maribel’s verification is insufficient to

establish (1) the date that she first received either notice of the judgment or actual



                                                   9
knowledge of the signing; and (2) that this date was more than twenty but fewer than

ninety-one days after the judgment was signed. See TEX. R. CIV. P. 306a(5); Estate of

Howley, 878 S.W.2d at 140; In re J.S., 392 S.W.3d at 337. The verified motion neither

establishes when Maribel received notice of the judgment nor did it establish an alternate

notice date extending appellate timelines. See Hanash, 551 S.W.3d at 927.

        Because the judgment was signed on September 17, 2019, and Maribel did not

timely file her motion for new trial, the trial court’s plenary power expired on October 17,

2019. See TEX. R. CIV. P. 329b(d). This is true regardless of whether Maribel received

actual, timely notice of the final trial date. The trial court’s plenary power to grant a new

trial or to modify, correct, or reform the judgment having expired, the motion for new trial

filed on November 8, 2019 was untimely, and the order granting the motion for new trial,

signed November 15, 2019, is void, as are the trial court’s subsequent orders. See In re

Brookshire Grocery Co., 250 S.W.3d at 72. Accordingly, Vallejo need not show the lack

of an adequate appellate remedy, and mandamus relief is appropriate. See In re

Vaishangi, Inc., 442 S.W.3d at 261; In re Sw. Bell Tel. Co., 35 S.W.3d at 605; In re Merino,

542 S.W.3d at 747.

        We sustain Vallejo’s first issue in his petition for writ of mandamus in cause number

13-20-00235-CV, and having done so, need not address his remaining issue in that

cause. See TEX. R. APP. P. 47.4. Having addressed Vallejo’s complaints in his petition for

writ of mandamus, we dismiss Vallejo’s appeal in cause number 13-20-00235-CV without

reference to the merits.2


         2 We note that an order granting a new trial in civil cases is ordinarily an unappealable, interlocutory

order. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); Fruehauf Corp. v.
Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam); In re J.J.R., 599 S.W.3d 605, 610 (Tex. App.—El
Paso 2020, no pet.). Further, the notice of appeal must be filed within thirty days after the judgment or other

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                                           VII. CONCLUSION

        The Court, having examined and fully considered the petition for writ of mandamus

and the applicable law, is of the opinion that Vallejo has met his burden to obtain relief.

Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial

court to promptly vacate its November 15, 2019 order granting a new trial and subsequent

orders. Our writ will issue only if the trial court fails to comply. We dismiss the appeal in

cause number 13-20-00239-CV.



                                                                          GINA M. BENAVIDES
                                                                          Justice


Delivered and filed the
20th day of August, 2020.




appealable order is signed or within ninety days if the appellant timely files an appropriate post-judgment
motion or pleading. See TEX. R. APP. P. 26.1. Absent a timely filed notice of appeal from a final judgment
or recognized interlocutory order, appellate courts do not have jurisdiction over an appeal. See Lehmann
v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

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