Juan Garza v. Grupo Comercio Mundial ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00564-CV
Juan GARZA,
Appellant
v.
GRUPO COMERCIO MUNDIAL, INC.,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2017CVF000590 D1
Honorable Jose Antonio Lopez, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: September 23, 2020
REVERSED AND REMANDED
Appellant Juan Garza brings a restricted appeal of the trial court’s summary judgment on
his claims against appellee Grupo Commercial Mundial, Inc. (“GCM”), claiming the face of the
record shows he received no notice of CGM’s motion for summary judgment, the summary
judgment hearing, or the final judgment for more than thirty days after that judgment was signed.
Alternatively, he contends he is entitled to bring a traditional appeal of the the trial court’s order
denying his motion for new trial. We agree with Garza’s alternative argument, so we reverse the
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trial court’s July 22, 2019 order denying his motion for new trial and remand this case for a new
trial.
BACKGROUND
Garza sued GCM for injuries he alleges he suffered while performing work for GCM.
Garza’s attorneys moved to withdraw, and during the hearing on that motion, Garza gave the trial
court an address where he claimed he could be contacted. The trial court granted the motion to
withdraw and mailed its order to Garza at the address he provided. On March 21, 2019, that order
was returned to the trial court undelivered and stamped “Return to Sender, Attempted—Not
Known, Unable to Forward.”
GCM filed a motion for summary judgment and set a hearing on its motion for May 14,
2019. GCM mailed the motion to Garza at the address he had provided, but it was returned
undelivered and stamped “Return to Sender, Not Deliverable as Addressed, Unable to Forward.”
The trial court mailed notice of the hearing to Garza at the address he had provided and it was also
returned undelivered and stamped “Return to Sender, Not Deliverable as Addressed, Unable to
Forward.”
Garza did not respond to GCM’s motion for summary judgment or appear at the hearing.
The trial court signed a judgment in GCM’s favor on May 14, 2019, and the Webb County District
Clerk mailed the judgment to Garza at the address he had provided. The judgment was returned
undelivered and stamped “Return to Sender, Not Deliverable as Addressed, Unable to Forward.”
Garza hired a new attorney, and on June 21, 2019, he filed a motion for new trial. In support
of his motion, Garza presented his own affidavit stating he did not learn about GCM’s motion for
summary judgment, the hearing on that motion, or the judgment until June 18, 2019. He also
presented the trial court’s docket sheet, which showed two notices that had been mailed to Garza
were “return[ed] unexecuted” on June 11 and 13, 2019. Garza later filed an amended, verified
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motion for new trial that was supported by the same evidence as his original motion. The trial court
denied Garza’s motion for new trial on July 22, 2019, and Garza filed a notice of appeal on August
22, 2019.
Since more than thirty days had passed since the trial court signed the summary judgment,
we ordered Garza to show cause why the appeal should not be dismissed for lack of jurisdiction.
Because Garza contends he learned about the judgment more than twenty days but less then ninety
days after the judgment was signed, he filed a response asking us to abate the appeal and remand
to the trial court for an evidentiary hearing to pursuant to Texas Rule of Civil Procedure 306a(4).
We granted that request and ordered the trial court to hold an evidentiary hearing to determine the
date Garza first received notice or actual knowledge of the judgment.
On remand, the trial court found Garza acquired notice of the summary judgment “on May
15/16, 2019.” Because this finding rendered Garza’s motion for new trial and notice of appeal
untimely, we again ordered Garza to show cause why his appeal should not be dismissed. In his
response, Garza asked us to construe his notice of appeal as a notice of restricted appeal. He also
asked us to consider, “in response to pertinent briefing on the merits . . . whether the trial court
abused its discretion in failing to extend post-judgment deadlines.” We issued an order construing
Garza’s appeal as a restricted appeal and retaining this case on the court’s docket.
ANALYSIS
Is This a Restricted Appeal or a Traditional Appeal?
As a threshold matter, we must first determine the nature of our jurisdiction and therefore
the nature of Garza’s appeal. Garza initially contends this is a restricted appeal of the trial court’s
May 14, 2019 summary judgment and argues only the final element of a restricted appeal
analysis—whether error is apparent on the face of the record—is relevant to that issue. See
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (listing elements of restricted
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appeal). He alternatively argues he can challenge the trial court’s July 22, 2019 order denying his
motion for new trial in a traditional, non-restricted appeal because his motion for new trial and
notice of appeal were timely under Texas Rule of Civil Procedure 306a(4).
Applicable Law
A party is precluded from seeking relief through a restricted appeal if he timely files a post
judgment motion, such as a motion for new trial. See Alexander, 134 S.W.3d at 848. “A motion
for new trial must be filed prior to or within 30 days after the judgment or other order complained
of is signed.” Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—Fort Worth 2004, pet.
denied); see also TEX. R. CIV. P. 329b(a). However, under Texas Rule of Civil Procedure 306a(4),
“[a]n exception to this rule exists when a party adversely affected by a judgment or other
appealable order did not receive notice nor acquire actual knowledge of the order within the
[requisite] time frame[.]” Davilla, 139 S.W.3d at 379. If a party first receives notice or actual
knowledge of a judgment more than twenty days but less than ninety days after the trial court signs
the judgment, then its deadlines to file both a motion for new trial and a traditional notice of appeal
run from the date the party received notice or actual knowledge. TEX. R. CIV. P. 306a(4); TEX. R.
APP. P. 4.2(a)(1), 26.1.
Because we have a duty to assess our jurisdiction, we must consider whether the evidence
supports the trial court’s finding of the date Garza received notice of the judgment. See Ward v.
Lamar Univ., 484 S.W.3d 440, 450–51 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (stating
we may ascertain facts necessary to the exercise of jurisdiction); Davilla, 139 S.W.3d at 378–79.
Evidence that a properly addressed and mailed notice was sent to a party’s last known address
creates a presumption the addressee received the notice. See Davilla, 139 S.W.3d at 379. However,
that presumption vanishes if the addressee offers proof of nonreceipt. Id. Garza argues conclusive
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evidence establishes his nonreceipt, and that the date he first received notice or actual knowledge
of the judgment was June 18, 2019.
Application
On November 1, 2019, the trial court held an evidentiary hearing to determine when Garza
received notice of the judgment. During that hearing, it took judicial notice that its computer
system showed the judgment was scanned and mailed to Garza on May 15, 2019 and the mailing
envelope was postmarked May 16, 2019. Because those dates do not appear anywhere else in the
record, this appears to be the basis for the trial court’s finding that Garza received notice of the
judgment on May 15 or 16. The trial court also admitted Garza’s affidavit, the trial court’s docket
sheet, and the judgment into evidence. The docket sheet shows that two documents the trial court
or the district clerk attempted to mail to Garza were returned “[u]nexecuted” on June 11, 2019 and
June 13, 2019.
Additionally, Garza stated in his affidavit that he did not learn about the judgment until
June 18, 2019. GCM did not present any evidence to controvert that sworn assertion. To the
contrary, the evidence GCM included with its response to Garza’s motion for new trial shows the
trial court’s attempt to notify Garza of the judgment was returned undelivered and stamped “Return
to Sender, Not Deliverable as Addressed, Unable to Forward.” This is consistent with the docket
sheet’s indication that two documents the court sent to Garza were returned.
Based on this record, we conclude there is no evidence to support the trial court’s finding
that Garza received notice of the judgment on May 15 or 16, 2019. Id. at 379–80. Because Garza
offered uncontroverted evidence that he first learned of the judgment on June 18, 2019, we
conclude he proved as a matter of law that he received notice or actual knowledge of the
judgment—and his post-judgment deadlines began to run—on that date. Id. at 380. As a result, his
motion for new trial was due 30 days later, or by July 18, 2019. See id.; see also TEX. R. CIV. P.
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306a(4). Garza’s June 21, 2019 motion for new trial was, therefore, timely filed. TEX. R. CIV. P.
306a(4), 329b(a). Because Garza’s timely motion for new trial precludes him from seeking relief
by restricted appeal, we overrule his first issue. See Alexander, 13 S.W.3d at 848.
Our analysis does not end here. See Davilla, 139 S.W.3d at 380. Because Garza’s motion
for new trial was timely, his deadline to file a traditional notice of appeal was 90 days after he
learned about the judgment, or by September 16, 2019. TEX. R. APP. P. 4.2(a)(1), 26.1(a)(1). As a
result, his August 22, 2019 notice of appeal was timely, and we will therefore consider the merits
of his alternative argument, which challenges the trial court’s order denying his motion for new
trial. TEX. R. APP. P. 4.2(a)(1), 26.1(a)(1). Although we previously issued an order concluding we
have jurisdiction over this case as a restricted appeal, we now conclude we have jurisdiction to
consider this case as a traditional appeal. See Davilla, 139 S.W.3d at 380.
Motion for New Trial
Standard of Review and Applicable Law
Garza limits his traditional appeal arguments to the trial court’s order denying his motion
for new trial. We review a trial court’s ruling on a motion for new trial for abuse of discretion. See
Stiles v. Stiles, No. 04-08-00885-CV, 2009 WL 2045229, at *2 (Tex. App.—San Antonio July 15,
2009, no pet.) (mem. op.). A trial court abuses its discretion if its decision is arbitrary,
unreasonable, or without reference to any guiding rules or principles. Id.
Both Garza and GCM contend we should evaluate the trial court’s order denying Garza’s
motion for new trial under the test established in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d
124 (Tex. 1939). Under the Craddock test, a judgment should be set aside and a new trial should
be granted:
when the party against whom the judgment is taken establishes that (1) the failure
to answer (or appear) was not intentional or the result of conscience indifference,
but the result of an accident or mistake; (2) the motion for new trial sets up a
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meritorious defense; and (3) granting the motion will occasion no undue delay or
otherwise injure the party taking the default judgment.
Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542–44 (Tex.
App.—Austin 2004, no pet.) (applying Craddock-style analysis to nonmovant’s claim it did not
receive notice of summary judgment hearing).
“[A] party who has appeared in a case is entitled to notice of a trial setting as a matter of
due process.” Rouhana v. Ramirez, 556 S.W.3d 472, 478 (Tex. App.—El Paso 2018, no pet.). If
the complaining party shows he did not receive notice of the dispositive motion or trial setting,
that lack of notice serves “as a substitute for the first Craddock element.” Limestone Constr., 143
S.W.3d at 543–44. Moreover, if a party establishes lack of notice, “due process requires that it
prevail without need to prove the other Craddock elements.” Id. at 544. “When the requirements
of Craddock are met, a trial court abuses its discretion if it denies the [complaining] party’s motion
for new trial.” Stiles, 2009 WL 2045229, at *2. “[T]he historical trend is towards the liberal
granting of motions for new trial filed after default judgments.” Limestone Constr., 143 S.W.3d at
544.
Application
Garza’s motion for new trial and the affidavit he offered in support of that motion aver he
did not learn about GCM’s motion for summary judgment or the summary judgment hearing until
after the trial court signed the judgment. The trial court’s docket sheet supports that assertion. The
evidence GCM attached to its response to Garza’s motion for new trial also supports Garza’s claim
of lack of notice, because it shows that both the motion for summary judgment and the trial court’s
hearing notice were returned to their respective senders undelivered and stamped “Return to
Sender, Not Deliverable as Addressed, Unable to Forward.” Finally, even though the notices were
properly addressed, Garza’s proof of nonreceipt removed any presumption that he received them.
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See In re E.A., 287 S.W.3d 1, 5 (Tex. 2009). There is no evidence showing Garza learned of the
motion for summary judgment or the notice of hearing before the trial court signed the judgment.
GCM contends Garza’s evidence of nonreceipt is not sufficient to satisfy the first Craddock
factor because Garza provided “an address for service that he now disclaims” and there is therefore
no evidence he was “free of intent or conscious indifference.” However, “[a] party who has been
denied due process through lack of notice of a trial setting satisfies the first Craddock factor”
because “one cannot be consciously indifferent to a trial of which they are unaware[.]” Rouhana,
556 S.W.3d at 479. Moreover, there is no evidence Garza supplied the address in question to avoid
service or otherwise delay the resolution of this case. Instead, the evidence shows Garza is
homeless and offered the address of the shelter where he stays when he is in Laredo. Because
Garza presented uncontroverted evidence that he did not learn about the motion for summary
judgment or the hearing on that motion until after the trial court signed the final judgment, due
process requires he be granted a new trial. See Mathis v. Lockwood, 166 S.W.3d 743, 745–46 (Tex.
2005). We reject GCM’s contention that Garza was required to make any additional showing under
these circumstances. See Rouhana, 556 S.W.3d at 479.
CONCLUSION
We reverse the trial court’s July 22, 2019 order denying Garza’s motion for new trial and
remand this case for a new trial.
Beth Watkins, Justice
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