Edwards, Lawrence v. the Office of the Attorney General of Texas

• Court: Court of Appeals of Texas
• Decided: July 10, 2003
• Docket: 14-02-00964-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 10, 2003

Affirmed and Memorandum Opinion filed July 10, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-00964-CV

LAWRENCE EDWARDS, Appellant

V.

THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Appellee

_________________________________________________

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 01-27628

M E M O R A N D U M   O P I N I O N

            In this suit to establish paternity and child support, Lawrence Edwards appeals a judgment in favor of the Office of the Attorney General of Texas (the “AG”) on the grounds that (1) he did not receive notice of the AG’s motion for new trial and hearing; and (2) the trial court lacked plenary power to grant the AG’s motion for new trial and enter a default judgment against him.  We affirm.

                                                                   Background

            In its action against Edwards to establish him as the father of two minor children and to set child support, the AG filed a notice of nonsuit, and the trial court dismissed the case without prejudice on March 13, 2002.  However, on April 12, 2002, after a parentage testing report was filed with the district clerk, the AG filed a motion for new trial.  Following a hearing, the trial court granted the AG’s motion on June 6, 2002, and sent Edwards a notice that trial was set on August 1, 2002.  Edwards failed to appear on that date for trial, and the trial court entered a default judgment (the “default judgment”) on August 12, 2002 declaring Edwards the father of the two minor children and setting child support.

                                                                        Notice

            Edwards’s sole issue on appeal argues, in part, that, because he was not notified of the AG’s motion for new trial and hearing thereon, any subsequent proceeding in the case was null and void, including the default judgment.  Although Edwards was clearly entitled to such notice,^[1] he cites no authority indicating that a failure to provide it invalidates any subsequent proceeding.^[2]

            In addition, a complaint of inadequate notice under Rule 21 is waived absent a timely objection in the trial court.  See Tex. R. App. P. 33.1; Walker v. Gonzales County Sheriff’s Dep’t, 35 S.W.3d 157, 160 (Tex. App.—Corpus Christi 2000, pet. ref’d).  Where a party has knowledge of a notice defect before a dispositive matter is presented to the trial court, but only raises it for the first time in a post-judgment motion, the objection is not timely.  See Rios v. Tex. Bank, 948 S.W.2d 30, 33 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

            In this case, the record reflects that a notice of the new trial setting was sent to, and received by, Edwards’s attorney.^[3]  Edwards failed to appear for trial and raised no objection in the trial court to the lack of notice of the motion for new trial and hearing before the default judgment was entered.  Moreover, his motion for new trial did not complain of the lack of that notice, but instead that he was not “properly served in the new cause of action,” i.e., that he “did not receive a Citation informing [him] a new case had been file[d].”^[4]  Because Edwards has therefore failed to both preserve his complaint for appeal and support it with authority, we overrule this portion of his first issue.

                                                                Plenary Power

            Edwards’s first issue also contends that the trial court lacked plenary power to grant the AG’s motion for new trial and enter a default judgment against him.

            A trial court has plenary power to grant a new trial for thirty days after a judgment is signed.  Tex. R. Civ. P. 329b(d).  In the case of a nonsuit, the plenary period begins upon signing the order of dismissal, not the filing of the notice of nonsuit.  In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997).  If a motion for new trial is filed within thirty days after a final judgment is signed, this plenary period is extended to either 105 days after judgment, if the motion is overruled by operation of law, or 30 days after the trial court denies the motion for new trial, as the case may be.  See Tex. R. Civ. P. 329b(a), (c)-(e).

            In this case, the trial court signed the order granting the AG’s nonsuit on March 13, 2002, and the AG filed a timely motion for new trial (i.e., within 30 days) on April 12, 2002.  As extended by this motion for new trial, the trial court’s plenary power had not expired by June 6, 2002, 85 days following judgment.  When the motion for new trial was granted and the dismissal judgment was set aside, there was no longer any judgment from which a plenary period could run.  Therefore, the trial court did not lack plenary power to grant the new trial or enter the default judgment.  Accordingly, Edwards’s sole issue is overruled and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed July 10, 2003.

Panel consists of Chief Justice Brister and Justices Edelman and Frost.

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^[1]           See Tex. R. Civ. P. 21.

^[2]           See Tex. R. App. P. 38.1(h) (requiring arguments in briefs to be supported with citations to authorities).  Nor would such a result seem consistent with a trial court’s general authority to grant a new trial on its own motion without a hearing.  See Tex. R. Civ. P. 320.

^[3]           Edwards does not dispute receiving notice of the new trial setting.

^[4]           Nor would an objection to the lack of notice of the previous motion for new trial have been timely under these circumstances  if raised for the first time in Edwards’s motion for new trial.