Ricardo Garcia v. Mirta Gloria Longoria, Miguel Angel Longoria, and Dairyland County Mutual Insurance Company

Opinion

                             NUMBER 13-04-639-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

RICARDO GARCIA,                                                  Appellant,

                                           v.

MIRTA GLORIA LONGORIA,

MIGUEL ANGEL LONGORIA, AND

DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY, Appellees.

             On appeal from the County Court At Law No. 5

                                of Hidalgo County, Texas.

                        MEMORANDUM OPINION

ON MOTION FOR REHEARING

                     Before Justices Hinojosa, Yañez, and Castillo

                        Memorandum Opinion by Justice Castillo

This appeal was brought from a "judgment for permanent injunction" which issued on July 13, 2004, in a case where the trial court had already issued an interlocutory default judgment on March 8, 2004, followed by a final judgment dated May 13, 2004.  We dismissed for want of jurisdiction.  In our opinion, dated February 16, 2006, we concluded that no motion for new trial or other motion to extend the court's plenary power was filed and the trial court's jurisdiction expired in June 2004.  Additionally, no bill of review was filed.^[1]  Then, on July 2, 2004, Miguel Longoria filed a motion for injunctive relief.  Although filed less than ninety days after the judgment, for the reasons set forth in our opinion^[2] that motion failed to satisfy the requisites of rule 306a and failed to extend the plenary power of the court.  Tex. R. Civ. P. 306a.

We further observed that judicial action taken after the trial court's plenary power has expired is void,^[3] and that void or invalid trial court judgments rendered without jurisdiction are properly challenged by mandamus.  In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (holding that mandamus is the appropriate remedy to set aside an order granted after the court's plenary power has expired and that is, therefore, void); see also Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973) (orig. proceeding). 

Appellant points us to the order of this Court dated December 7, 2004, in which his petition for mandamus related to this same matter, Cause No. 13-04-00634-CV, was denied, based upon the pending appeal. 

Because this appeal was taken from an order that issued without jurisdiction and which is therefore void, we cannot assert jurisdiction over this matter in this appeal.  State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).  The motion for rehearing is denied.  However, because of the circumstances presented, and because this Court has now determined there is no adequate remedy by appeal, this Court will entertain a newly-filed petition for writ of mandamus and a motion to transfer the records into the new cause.                                                                   

ERRLINDA CASTILLO

Justice

Memorandum Opinion on Motion for Rehearing

delivered and filed this the 18th day of May, 2006.                            

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^[1] Upon the expiration of the trial court's plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law.  See Tex. R. Civ. P. 329b(f).  A bill of review is an equitable action brought by a party to a prior action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial.  State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex. 1989) (per curiam) (op. on reh'g); Mowbray v. Avery, 76 S.W.3d 663, 682 (Tex. App.BCorpus Christi 2002, pet. denied).  To have the judgment set aside, the complainant must first meet certain pretrial burdens and then prevail on the merits.  Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979); Kessler v. Kessler, 693 S.W.2d 522, 526 (Tex. App.BCorpus Christi 1985,writ ref'd n.r.e.).

^[2] Garcia v. Longoria, No. 13-04-639-CV, 2006 Tex. App. LEXIS 1292 (Tex. App.BCorpus Christi Feb. 16, 2006) (memorandum opinion).

^[3] See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (defining a void judgment as one rendered when a court has no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court).