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Fuentes v. Zaragoza

Court of Appeals of Texas, First District

July 27, 2017

MIGUEL ZARAGOZA FUENTES, Appellant
v.
EVANGELINA LOPEZ GUZMAN ZARAGOZA, Appellee

         On Appeal from the 245th District Court Harris County, Texas Trial Court Case No. 2014-30215

          Panel consists of Chief Justice Radack and Justices Higley and Bland.

          OPINION

          JANE BLAND JUSTICE.

         This interlocutory appeal arises from the trial court's temporary order appointing a receiver to monitor and preserve marital assets during the appeal of an underlying divorce decree between Evangelina Lopez Guzman Zaragoza and Miguel Zaragoza Fuentes. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(1) (providing that party "may appeal from interlocutory order" that "appoints a receiver.").[1] Miguel challenges the trial court's jurisdiction to issue the temporary order appointing the receiver, the notice provided, and the sufficiency of the evidence. We hold that the trial court's appointment of the receiver is void for lack of jurisdiction.

         I. Background

         In December 2015, the trial court signed a Final Decree of Divorce between Miguel Fuentes and Evangelina Lopez Guzman Zaragoza. Miguel filed his notice of appeal on March 18, 2016.[2] The trial court set the amount required to supersede the judgment during the appeal at $278.3 million. We granted Miguel's motion challenging the amount of the supersedeas bond and reduced the amount to $25 million. See Fuentes v. Zaragoza, No. 01-16-00251-CV, 2016 WL 3023811 (Tex. App.-Houston [1st Dist.] May 26, 2016, order). Miguel posted the $25 million supersedeas bond on June 13, 2016.

         Ten days after Miguel filed his notice of appeal, while the amount of the supersedeas bond was being litigated, Evangelina moved for temporary orders under Family Code Section 6.709 seeking injunctions, spousal support, and payment of her attorney's fees during the appeal. See Tex. Fam. Code § 6.709. Miguel objected to the motion for temporary orders. On April 1, 2016, the trial court issued an order overruling Miguel's objections and providing that the court would proceed to determine temporary orders pending appeal as to spousal support and attorney's fees. The trial court's order denied-and stated that the court would not consider-any other temporary relief requested under section 6.709, including any request for appointment of a receiver:

As to any other temporary relief pending appeal requested under section 6.709 of the Family Code, those requests are struck and dismissed and will not be considered, including any request for appointment of a receiver or occupancy of the residential property listed in the Motion for Temporary Orders During Appeal.

         On the same day, the trial court issued temporary orders pursuant to section 6.709 requiring Miguel to pay Evangelina $300, 000 in monthly support and $50, 000 in monthly attorney's fees during the pendency of the appeal.

         Miguel filed a petition for writ of mandamus, challenging the temporary orders as (1) untimely issued outside of the trial court's jurisdiction under section 6.709 and (2) an abuse of discretion because the evidence did not support the awards. See In re Fuentes, 506 S.W.3d 586, 590 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding [mand. denied]). We rejected Miguel's argument that the temporary orders were untimely issued under section 6.709, but conditionally granted the petition on the basis that the trial court abused its discretion by awarding $350, 000 in monthly support and attorney's fees in the absence of supporting evidence. Id. at 594. In the original opinion on August 9, 2016, we initially directed the trial court to "vacate its order of temporary support and for attorney's fees and to conduct a hearing and enter new temporary orders within 30 days."

         Miguel timely moved for rehearing, arguing that the trial court lacked jurisdiction to conduct another hearing or issue new orders because more than 30 days had passed since Miguel perfected his appeal. On October 6, 2016, we denied Miguel's motion for rehearing, but withdrew the August 9 opinion and issued a substitute opinion in its stead. See In re Fuentes, 506 S.W.3d at 588 n.1. The substitute opinion removed the language directing the trial court to "conduct a hearing and enter new temporary orders" and, instead, directed "the trial court to modify its order of temporary support and attorney's fees consistent with this opinion within 30 days." Id. at 594.

         The trial court subsequently set another evidentiary hearing regarding the temporary orders for November 1, 2016. The trial court overruled Miguel's objections that (1) the trial court lacked jurisdiction to conduct another hearing or take new evidence more than 30 days after Miguel's appeal was perfected, and (2) the trial court's only authority on remand was to "modify its order of temporary support and attorney's fees consistent with" this Court's opinion. At the conclusion of the evidentiary hearing on November 3, 2016, the trial court orally pronounced that it was entering temporary orders (1) awarding Evangelina $350, 000 in monthly support and attorney's fees (the same total amount previously awarded, but comprising $250, 000 in monthly support and $100, 000 in attorney's fees; whereas, the previous $350, 000 consisted of $300, 000 for support and $50, 000 for attorney's fees); (2) awarding Evangelina $6.4 million in past attorney's fees; (3) awarding Evangelina exclusive use of certain properties; and (4) appointing a receiver to "monitor and report on all real and personal property awarded" in the decree and to ensure that "the property is preserved and protected during the pendency of the appeal." The trial court ordered Miguel and Evangelina each to deposit $300, 000 by December 5, 2016, to cover the receiver's fees and expenses. The trial court signed these modified temporary orders on November 23, 2016.

         On December 1, 2016, Miguel filed another petition for writ of mandamus challenging all aspects of the modified temporary orders, including the appointment of a receiver. On the same day, Miguel also filed a notice of appeal from the appointment of the receiver, the filing of which commenced this current appeal. We granted Miguel's request to stay the temporary orders, including the receiver's appointment.

         II. Discussion

         In this appeal, Miguel argues that (1) the trial court lacked jurisdiction under section 6.709 to conduct a hearing and issue temporary orders, including the appointment of the receiver, more than 30 days after Miguel's appeal was perfected; (2) the trial court's appointment of a receiver exceeded the scope of our direction that the trial court modify its temporary orders within 30 days to be consistent with our opinion; (3) the trial court abused its discretion by appointing the receiver sua sponte without sufficient notice; and (4) the trial court abused its discretion by appointing the receiver without sufficient evidentiary support.

         As a threshold matter, we review the trial court's jurisdiction to issue the order appointing the receiver. We need address Miguel's challenges to the merits of the appointment only if the trial court had jurisdiction to appoint a receiver while the case is on appeal. We review a challenge to the trial court's subject-matter jurisdiction de novo. See In re Salminen, 492 S.W.3d 31, 38 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding); City of Richmond v. Pecan Grove Mun. Util. Dist., 01-14-00932-CV, 2015 WL 4966879, at *2 (Tex. App.-Houston [1st Dist.] Aug. 20, 2015, pet. denied). For the reasons discussed below, we hold that the trial court lacked jurisdiction to appoint the receiver.[3]

         A. The scope of a trial court's jurisdiction to appoint a receiver under section 6.709(a).

         In civil cases, including cases under the Family Code, "[a] trial court retains jurisdiction over a case for 30 days after it signs a final judgment or order." Martin v. Tex. Dep't of Family & Protective Serv., 176 S.W.3d 390, 392 (Tex. App.- Houston [1st Dist.] 2004, no pet.) (citing Tex.R.Civ.P. 329b(d)). "[A]fter the 30 days run, the trial court loses its plenary power, and lacks jurisdiction to act in the matter." Id. Section 6.709 of the Family Code, however, provides that, within 30 days after perfection of an appeal, the trial court may enter temporary orders "necessary for the preservation of the property and the protection of the parties during the appeal, " including an order "appoint[ing] a receiver for the preservation and protection of the property of the parties." Tex. Fam. Code § 6.709(a).[4] As ...


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