In the Interest of S.J.S., M.J.S. and M.C.S., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 16, 2024
• Docket: 05-23-00825-CV
• Status: Published

Opinion

Dismissed and Opinion Filed September 16, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00825-CV

IN THE INTEREST OF S.J.S., M.J.S. AND M.C.S., CHILDREN

On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-21-18680

MEMORANDUM OPINION Before Justices Pedersen, III, Smith, and Garcia Opinion by Justice Pedersen, III This is an appeal from a Final Decree of Divorce (the Decree). Suit for divorce

was filed by Lilliana Sanchez Mendez (Wife), and the Decree was entered by default

when Marvin Steven Salgado (Husband) failed to answer the petition. Husband

appeals the Decree, arguing that the evidence is legally and factually insufficient to

support both its property division and its resolution of parent-child issues. He also

argues that the Decree divests him of his separate property. For the reasons discussed

below, we dismiss the appeal for want of jurisdiction.

Wife argues in this Court that the appeal should be dismissed because

Husband’s notice of appeal was untimely filed. The Decree, which is the final judgment in this case, was signed on March 16, 2022. A notice of appeal is due thirty

days after the date the judgment is signed. See TEX. R. APP. P. 26.1. If a party timely

files a post-judgment motion extending the appellate timetable, the notice of appeal

becomes due ninety days after the date the judgment is signed. See TEX. R. APP. P.

26.1(a).

In this case, Husband filed a verified motion for new trial on May 3, 2022,

forty-six days after the judgment. In the motion, he stated that he was unaware a

default judgment had been taken against him “until weeks later, having received a

letter in the mail from the clerk’s office.” If a party does not receive notice of the

judgment from the clerk of the court, or actual notice of it, then his time to file a

post-trial motion begins when he receives notice. TEX. R. CIV. P. 306a(4). However,

in order to obtain such an extension, the party must prove in the trial court, on sworn

motion and notice, the date on which the party or his attorney first either received a

notice of the judgment or acquired actual notice of the signing and that this date was

more than twenty days after the judgment was signed. TEX. R. CIV. P. 306a(5). “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.” In re Lynd Co., 195

S.W.3d 682, 685 (Tex. 2006). Here, the trial court heard no evidence at the hearing

on Husband’s new trial motion, but it granted the motion on June 14, 2022.

–2– Wife filed a motion to vacate the court’s order, arguing that under the thirty-

day rule following a final judgment, the trial court had lost plenary power by the

time it granted a new trial. Wife also argued that the exception to the thirty-day rule

should not apply because Husband had failed to specify in a sworn filing the date he

received notice and did not prove that date with evidence.

When the trial court did not rule on the motion, Wife filed a petition for

mandamus relief in this Court. While the mandamus action was pending, the trial

judge, who presided over the 301st Judicial District, recused herself and the case

was transferred to the 254th District Court. Ultimately, the judge of that court issued

an order that agreed with the prior order granting a new trial and denied the motion

to vacate. This Court issued its mandamus opinion on June 28, 2023, concluding that

Husband had failed to prove, in the manner prescribed by Rule 306a(5), when he

received notice of the judgment. In re Sanchez Mendez, No. 05-22-01070-CV, 2023

WL 4229819, at *2 (Tex. App.—Dallas June 28, 2023, orig. proceeding) (mem. op.).

Accordingly, we concluded that the trial court lacked plenary power when it

purported to grant a new trial to Husband. Id. at *3. We directed the trial court

to vacate its ruling and to reinstate the default judgment. Id. The trial court complied

with our order, and this appeal followed.

We have concluded that Husband’s motion for new trial was untimely. See id.

As a result, he was unsuccessful in extending the deadline for a notice of appeal, and

that notice was due within thirty days after the judgment was signed, i.e., by

–3– April 15, 2022. See TEX. R. APP. P. 26.1. Husband’s notice was not filed until

August 9, 2023, more than a year after it was due. Without a timely filed notice of

appeal, this Court lacks jurisdiction. TEX. R. APP. P. 25.1(b).

We dismiss this appeal for want of jurisdiction. TEX. R. APP. P. 42.3.

/Bill Pedersen, III// 230825f.p05 BILL PEDERSEN, III JUSTICE

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF S.J.S., On Appeal from the 254th Judicial M.J.S. AND M.C.S., CHILDREN, District Court, Dallas County, Texas Trial Court Cause No. DF-21-18680. No. 05-23-00825-CV Opinion delivered by Justice Pedersen, III. Justices Smith and Garcia participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

It is ORDERED that appellee Liliana Sanchez Mendez recover her costs of this appeal from appellant Marvin Salgado.

Judgment entered this 16th day of September, 2024.

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