in Re: James Bryan McPherson, Sr.

• Court: Court of Appeals of Texas
• Decided: January 24, 2007
• Docket: 12-06-00276-CV
• Status: Published

Opinion

                NO. 12-06-00276-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§

IN RE: JAMES BRYAN                  

MCPHERSON, SR.,  §          ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

            James Bryan McPherson, Sr. brings this original mandamus proceeding complaining of an order denying his motion to establish the date he received notice of judgment pursuant to Texas Rule of Civil Procedure 306a(4).¹  We deny the petition.

Background

            In October 2005, McPherson’s wife, Traci Leigh McPherson, filed for divorce.  Two months later, McPherson was served with citation.  McPherson did not employ an attorney to represent him in the divorce and did not file an answer.  On January 30, 2006, the trial court signed a final decree of divorce.  On March 22, 2006, McPherson filed a motion to establish notice of judgment alleging that he did not receive notice or acquire actual knowledge of the final divorce decree until March 10, 2006.  After a hearing on McPherson’s motion, the trial court signed an order denying McPherson’s motion and stating that January 30, 2006 would remain the notice date to McPherson for purposes of appeal.  This original proceeding followed.

                        Discussion

            Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or determining legal principles, when there is no adequate remedy by appeal.  Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).  With respect to the resolution of factual issues or matters committed to the trial court’s discretion, we may not substitute our judgment for that of the trial court unless the relator establishes that the trial court could reasonably have reached only one decision and that the trial court’s decision is arbitrary and unreasonable.  Id. 

            In the instant case, McPherson implicitly argues that the testimony at the hearing on his motion to establish notice of judgment conclusively established that he did not receive notice of the final divorce decree until March 10, 2006.  However, the record of the hearing includes conflicting testimony on the issue.  McPherson testified unequivocally that he had never seen the notice and was not aware that a divorce decree had been entered until “Traci left it on the table on Friday the 10th [of March].”  Traci testified that McPherson still gets mail at her house and that if she sees something in the mailbox addressed to him, she leaves it there.  She stated that in the past when she has left McPherson’s mail in the mailbox, she has gone back later and the mail would be gone.  Finally, Traci testified that the clerk’s notice came to her house and was addressed to McPherson, so she left it in the mailbox without opening it.  Sometime later, she went back to the mailbox and the notice was gone.  She assumed McPherson had picked up the notice because “he drives out that direction.”  Because of this conflicting testimony, McPherson cannot establish that the trial court could reasonably have reached only one decision about the date he received notice or acquired actual knowledge of the January 30, 2006 divorce decree.  Therefore, he has not shown that the trial court abused its discretion in denying his motion to establish notice of judgment.

Conclusion

            Because McPherson has not shown that the trial court abused its discretion in denying his motion to establish notice of judgment, he is not entitled to mandamus relief.  Consequently, we need not address whether McPherson has an adequate remedy by appeal.  See Tex. R. App. P. 47.1.  McPherson’s petition for writ of mandamus is denied. 

                                                                                                     SAM GRIFFITH   

                                                                                                              Justice

Opinion delivered January 24, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

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¹ The respondent is the Honorable Teresa A. Drum, Judge of the 294th Judicial District Court, Van Zandt County, Texas.  The real party in interest is Traci Leigh McPherson.