Appeal from the 245th District Court Harris County, Texas
Trial Court Case No. 2014-30215
consists of Chief Justice Radack and Justices Higley and
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."). 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.
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. 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,
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.
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.
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."
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.
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.
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
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
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.
The scope of a trial court's jurisdiction to
appoint a receiver under section
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). As ...