Paul Douglas Hanks v. Wendy Roy Hanks

• Court: Court of Appeals of Texas
• Decided: December 22, 2020
• Docket: 01-20-00205-CV
• Status: Published

Opinion

Order issued December 22, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00205-CV ——————————— PAUL DOUGLAS HANKS, Appellant V. WENDY ROY HANKS, Appellee

On Appeal from the 461st District Court Brazoria County, Texas Trial Court Case No. 89979-F

ORDER OF ABATEMENT

Paul and Wendy Hanks divorced in 2018. Their agreed final decree of

divorce included certain property-division provisions. Just a few months after their

divorce, Wendy petitioned to enforce the property division. After continuances, the trial court entered a default judgment and enforcement order against Paul. The

judgment was dated December 9, 2019. Paul filed this appeal on March 5, 2020.

Between the default judgment and the appeal, Paul filed a motion with the

trial court to set aside the default judgment. He filed it more than 30 days after the

default was entered. See TEX. R. CIV. P. 329b(d) (generally, a trial court loses

plenary jurisdiction to grant a new trial or modify its judgment 30 days after the

judgment is signed); see Munson Eng'g, Inc. v. Farris, 666 S.W.2d 355, 357 (Tex.

App.—Houston [14th Dist.] 1984, no writ) (“After the expiration of the time

period within which the trial court has plenary power, a default judgment cannot be

set aside by the trial court except by a bill of review.”).

By an unsworn declaration1 attached to his motion, Paul stated that he first

learned of the default more than 20 days after its entry. By doing so, Paul invoked

Rule 306a that extends the period for filing post-judgment motions and extends the

trial court’s plenary power if a party and his attorney do not receive notice within

20 days of the judgment and do not acquire actual knowledge of the signing. TEX.

R. CIV. P. 306a(4); cf. Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (Rule

306a ensures a party moving to reinstate “has close to 30 days . . . and in no event

1 An unsworn declaration functions as an affidavit. See TEX. CIV. PRAC. & REM. CODE § 132.001(a) (except for certain circumstances not present here, “an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.”). has less than 10 days” to do so because the rule extends the 30-day deadline if

notice of judgment was received more than 20 days after the signing of the

judgment).

Paul’s assertions in his motion provided prima facie evidence that he did not

receive notice or acquire knowledge of the judgment until more than 20 days after

it was signed.2 In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006). And the trial

court’s plenary power was extended on receipt of the prima facie evidence. Id.;

Jarrell v. Bergdorf, 580 S.W.3d 463, 467 (Tex. App.—Houston [14th Dist.] 2019,

no pet.); see also Tran v. Hong Kong Dev. Corp., No. 01-13-00613-CV, 2014 WL

4219470, at *3–5 (Tex. App.—Houston [1st Dist.] Aug. 26, 2014, pet. denied)

(holding that denial of notice or knowledge for more than 20 days in Rule 306a

motion met prima facie burden and provided jurisdiction to rule on motion to set

aside default judgment; until the trial court conducts a hearing and receives

evidence on receipt of notice or knowledge about signing of judgment, “trial court

is bound to accept the movant’s sworn affidavit as true”).

The trial court’s plenary power was extended to permit it to hold an

evidentiary hearing to determine the earliest date that Paul received notice or

acquired actual knowledge of the signing of the December 9 judgment. See In re

Lynd Co., 195 S.W.3d at 685 (stating that prima facie evidence of late notice

2 Because Paul was pro se at all relevant times, there is no need to inquire when an attorney might have acquired knowledge. Cf. TEX. R. CIV. P. 306a(4). “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 . . . first

received notice or acquired knowledge of the judgment”).

The trial court denied Paul’s motion, but it is unclear on what basis it did so

given that it had plenary power to conduct the evidentiary hearing, it held a

hearing, but it did not state in its order the date Paul first was notified of or

acquired knowledge about the signing of the default judgment. See TEX. R. CIV. P.

306a(5); TEX. R. APP. P. 4.2(c).

We are unable to determine our jurisdiction. Thus, we abate this appeal and

remand this cause to the trial court for an evidentiary hearing and order finding the

date that Paul first received actual notice of the default judgment or acquired

knowledge of the signing of the judgment. Jackson v. City of Texas City, 265

S.W.3d 640, 644 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“A court

always has jurisdiction to determine its jurisdiction.”); TEX. R. APP. P. 44.4; see

TEX. R. CIV. P. 306a(5); TEX. R. APP. P. 4.2(c); see also Lickety Split Express, Inc.

v. Lyndee Sols., Inc., No. 03-19-00142-CV, 2019 WL 2402980, at *1–2 (Tex.

App.—Austin June 7, 2019, order and memorandum opinion) (abating and

remanding for order specifying date), following abatement, 2020 WL 742384 (Tex.

App.—Austin Feb. 14, 2020, no pet.) (reversing judgment and remanding for

additional proceedings). It is ordered that the clerk’s record and any relevant reporter’s record be

forwarded to this Court for filing as a supplemental record no later than February

15, 2021.

Sarah Beth Landau Justice

Panel consists of Justices Goodman, Landau, and Adams.