in Re Alfredo Tomas Vallejo

CourtCourt of Appeals of Texas
DecidedAugust 20, 2020
Docket13-20-00235-CV
StatusPublished

This text of in Re Alfredo Tomas Vallejo (in Re Alfredo Tomas Vallejo) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
in Re Alfredo Tomas Vallejo, (Tex. Ct. App. 2020).

Opinion

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

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).

2 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

3 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).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Prudential Insurance Co. of America
148 S.W.3d 124 (Texas Supreme Court, 2004)
Wilkins v. Methodist Health Care System
160 S.W.3d 559 (Texas Supreme Court, 2005)
In Re the Lynd Co.
195 S.W.3d 682 (Texas Supreme Court, 2006)
In Re Brookshire Grocery Co.
250 S.W.3d 66 (Texas Supreme Court, 2008)
Ford Motor Co. v. Garcia
363 S.W.3d 573 (Texas Supreme Court, 2012)
Lane Bank Equipment Co. v. Smith Southern Equipment, Inc.
10 S.W.3d 308 (Texas Supreme Court, 2000)
Fruehauf Corp. v. Carrillo
848 S.W.2d 83 (Texas Supreme Court, 1993)
In Re Southwestern Bell Telephone Co.
35 S.W.3d 602 (Texas Supreme Court, 2000)
Memorial Hospital of Galveston County v. Gillis
741 S.W.2d 364 (Texas Supreme Court, 1987)
John v. Marshall Health Services, Inc.
58 S.W.3d 738 (Texas Supreme Court, 2001)
Lehmann v. Har-Con Corp.
39 S.W.3d 191 (Texas Supreme Court, 2001)
Nathan A. Watson Co. v. Employers Mutual Casualty Co.
218 S.W.3d 797 (Court of Appeals of Texas, 2007)
Estate of Howley by Through Howley v. Haberman
878 S.W.2d 139 (Texas Supreme Court, 1994)
Walker v. Packer
827 S.W.2d 833 (Texas Supreme Court, 1992)
in Re Essex Insurance Company
450 S.W.3d 524 (Texas Supreme Court, 2014)
in Re Vaishangi, Inc.
442 S.W.3d 256 (Texas Supreme Court, 2014)
Pilot Travel Centers, LLC v. Joan McCray
416 S.W.3d 168 (Court of Appeals of Texas, 2013)
in Re Nationwide Insurance Company of America
494 S.W.3d 708 (Texas Supreme Court, 2016)
in Re Alba Zuyapa Martinez
478 S.W.3d 123 (Court of Appeals of Texas, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
in Re Alfredo Tomas Vallejo, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alfredo-tomas-vallejo-texapp-2020.