Summary
dismissing appeal from motion to set aside judgment for lack of subject-matter jurisdiction when motion to set aside was filed after trial court's plenary power expired and thus could not support appellate jurisdiction
Summary of this case from Garcia v. KuboshOpinion
NO. 12-11-00219-CV
02-08-2012
IN THE GUARDIANSHIP OF WILLIAM N. FOWLER, AN INCAPACITATED PERSON
APPEAL FROM THE
COUNTY COURT AT LAW #1
HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Peggy Redding appeals the trial court's order denying her motion to set aside a judgment. Jerry Harris and Harbour Smith Harris & Merritt, P.C., Appellees, are attorneys in the underlying guardianship proceeding. We dismiss for want of jurisdiction.
BACKGROUND
Peggy Redding filed an application to be appointed temporary guardian of William N. Fowler, her father, in the county court at law of Henderson County, Texas. The trial court granted Redding's application. However, Doris Fowler, William's wife, objected to and contested Redding's application, and also filed an application for appointment as the permanent guardian of William's person and estate. After a hearing, the trial court appointed Doris as William's permanent guardian. Redding filed a petition for a writ of mandamus in this court. We conditionally granted the writ of mandamus after concluding that the trial court's order was void. The trial court vacated its order appointing Doris as William's permanent guardian.
Although Doris's application does not appear in the record, it is referred to by the trial court in its order appointing Doris as the permanent guardian of William's person and estate.
Thereafter, Redding and Doris filed applications to be appointed William's guardian. Further, Redding sued her sister, Susan Fowler Earl, and Chase Bank of Tyler, Texas, in the district court of Henderson County, Texas. Redding and William, through his attorney ad litem, each requested that the Henderson County district court consolidate its action with the county court at law guardianship matter. Subsequently, the district court ordered that the action pending in that court be transferred and consolidated with the county court at law guardianship matter.
Cause No. 2006B-139, "Peggy Fowler Redding v. Susan Fowler Earl and Chase Bank of Tyler, Texas," filed in the 392nd Judicial District Court of Henderson County, Texas.
After the actions were consolidated, the trial court ordered the parties to mediation. As a result, the parties signed a full and final release and settlement agreement on February 12, 2008. The trial court signed a judgment on April 8, 2008, refunding Redding's bond, ordering payment from William to the attorney ad litem, ordering that all relief requested and not expressly granted be denied, and dismissing the consolidated case with prejudice. Although William died on February 16, 2008, the trial court was not informed of his death.
On March 29, 2011, Redding filed a motion to set aside the 2008 judgment, alleging that because William died on February 16, 2008, almost two months before the judgment was signed, the trial court lacked subject matter jurisdiction when it signed the judgment. Doris, Susan, and their attorneys, Jerry Harris and Harbour Smith Harris & Merritt, P.C., opposed the motion.After a hearing, the trial court denied Redding's motion to set aside the 2008 judgment. This appeal followed.
Jerry Harris and Harbour Smith Harris & Merritt, P.C. represented Doris and Susan in the underlying guardianship proceeding.
JURISDICTION
In her sole issue on appeal, Redding contends that the trial court lacked jurisdiction to sign the 2008 judgment. Applicable Law
A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final judgment. TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). However, a trial court's plenary power may be extended by timely filing an appropriate postjudgment motion, such as a motion for new trial or a motion to modify, correct, or reform the judgment, within the initial thirty day period. TEX. R. CIV. P. 329(a), (e), (g); Lane Bank Equip. Co., 10 S.W.3d at 310; Shackelford v. Barton, 156 S.W.3d 604, 606-07 (Tex. App.-Tyler 2004, pet. denied). When an appropriate postjudgment motion is filed within the initial thirty day period, the trial court's plenary power is extended up to an additional seventy-five days, depending on when or whether the court acts on the motion. Lane Bank Equip. Co., 10 S.W.3d at 310; Shackelford, 156 S.W.3d at 607. However, if no party to a judgment files a motion that extends the trial court's plenary power, the trial court loses jurisdiction thirty days after the judgment is signed and has no power to set aside a judgment except by bill of review for sufficient cause. TEX. R. CIV. P. 329b(f); Shackelford, 156 S.W.3d at 607.
In Middleton v. Murff, 689 S.W.2d 212 (Tex. 1985), the Supreme Court of Texas recognized an exception to the Rule 329b(f) requirement of a bill of review in cases where the court rendering the judgment had no "jurisdictional power" to do so. See Middleton, 689 S.W.2d at 213. The court defined "jurisdictional power" to mean "jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one belongs." Id. In these cases, a litigant does not need to comply with the bill of review procedures in order to make a direct attack on the judgment. Sweetwater Austin Prop., L.L.C. v. SOS Alliance, Inc., 299 S.W.3d 879, 889 (Tex. App.-Austin 2009, pet. denied). Examples of judgments rendered by a court without the "jurisdictional power" to hear or render judgment in the case include a county court rendering judgment in a suit for divorce or for title to property. See id.
A collateral attack is "an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose." Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.-Houston [1st Dist.] 1995, no pet.) (quoting Emp'rs Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex. 1988)). To prevail on a collateral attack, a party must show that the judgment is void on its face and extrinsic evidence may not be used. Alderson v. Alderson, 352 S.W.3d 875, 879 (Tex. App.-Dallas 2011, pet. denied). Jurisdictional recitations in a judgment that is regular on its face import absolute verity and can be attacked only directly, not collaterally. Akers v. Simpson, 445 S.W.2d 957, 959 (Tex.1969); In re V.M.I., No. 01-02-00687-CV, 2003 WL 1091901, at *2 (Tex. App.-Houston [1st Dist.] Mar. 13, 2003, no pet.) (mem. op.); Solomon, Lambert, Roth & Assoc., Inc., 904 S.W.2d at 901. When the judgment contains no recitations about jurisdiction over a party, a presumption of jurisdiction nonetheless applies. In re V.M.I. , 2003 WL 1091901, at *2; Solomon, Lambert, Roth & Assocs., Ltd., 904 S.W.2d at 901. "[W]hen the recitations of the judgment on a particular subject are insufficient affirmatively to show jurisdiction, so long as they do not show affirmatively a lack of jurisdiction, the usual presumption in favor of the judgment prevails." See Solomon, Lambert, Roth & Assocs., Inc., 904 S.W.2d at 901 (quoting Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex. App.-Dallas 1990, no writ)). Analysis
In this case, Redding filed a motion to set aside the 2008 judgment on March 29, 2011. By that time, the trial court's plenary power had expired. See TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co., 10 S.W.3d at 310. Therefore, according to Rule 329b(f), Redding should have filed a bill of review. See TEX. R. CIV. P. 329b(f). However, according to the Texas Probate Code, a bill of review in a guardianship proceeding may not be filed after two years have elapsed from the date of the judgment. See TEX. PROB. CODE ANN. § 657 (West 2003). By the time Redding filed her motion to set aside the judgment, three years had elapsed since the 2008 judgment. Thus, a bill of review would have been untimely.
Redding argues, however, that this case is within the Middleton exception to Rule 329b(f)'s requirement of a bill of review. See Middleton, 689 S.W.2d at 213. But the Middleton exception applies to cases where the court rendering the judgment had no "jurisdictional power" to do so, i.e., "jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one belongs." Id. However, the county court at law is a court exercising the jurisdiction of a probate court in which "all applications, petitions, and motions regarding guardianships . . . shall be filed and heard." See Act of May 28, 2003, 78th Leg., R.S., ch. 549, § 2, 2003 Tex. Gen. Laws 1858, 1859 (repealed 2011). Because the county court at law is a court with the "jurisdictional power" to render the 2008 judgment, the Middleton exception is not applicable. Thus, a bill of review was the exclusive method for Redding to attack the 2008 judgment after the time for appeal expired. See Middleton, 689 S.W.2d at 213-14. Consequently, Redding's motion to set aside the judgment is a collateral attack on the 2008 judgment.
In those counties in which there is no statutory probate court, but in which there is a county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions, and motions regarding guardianships, mental health matters, or other matters addressed by this chapter shall be filed and heard in those courts and the constitutional county court, unless otherwise provided by law. Act of May 28, 2003, 78th Leg., R.S., ch. 549, § 2, 2003 Tex. Gen. Laws 1858, 1859, repealed by Act of May 23, 2011, 82nd Leg., R.S. ch. 1085, § 42, 2011 Tex. Sess. Law Serv. 2810, 2822 (West).
To prevail on a collateral attack, Redding must show that the judgment is void on its face, and extrinsic evidence may not be used. See Alderson, 352 S.W.3d at 879. The 2008 judgment contains no recitations regarding jurisdiction over the parties. Therefore, we must presume that the trial court had jurisdiction over the parties. See In re V.M.I. , 2003 WL 1091901, at *2; Solomon, Lambert, Roth & Assocs., Ltd., 904 S.W.2d at 901.
Further, Redding may not use extrinsic evidence to demonstrate that the 2008 judgment is void. See Alderson, 352 S.W.3d at 879. In this case, Redding's only argument that the trial court lacked jurisdiction to render the 2008 judgment is that William died on February 16, 2008, two months prior to the judgment. However, the judgment does not include any reference to William's death. Because we must presume that the trial court had jurisdiction over the parties, the 2008 judgment is not void on its face and may not be collaterally attacked. See Shackelford, 156 S.W.3d at 606.
Having determined that the 2008 judgment is not void on its face, we must independently determine whether we have jurisdiction over an appeal, even if no party contests jurisdiction. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); Tex. La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 (Tex. App.-Houston [14th Dist] 2011, no pet.). When the trial court loses plenary power over a judgment, it also generally lacks the authority to vacate the judgment. Clewis v. Safeco Ins. Co. of America, 287 S.W.3d 197, 203 (Tex. App.-Fort Worth 2009, no pet.) (citing TEX. R. CIV. P. 329b(f)). Proceedings related to the trial court's judgment after its plenary power has expired are generally beyond the trial court's jurisdiction. See id. An untimely motion to set aside a judgment provides no basis for consideration on appeal. Shackelford, 156 S.W.3d at 607; Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 623 (Tex. App.-San Antonio 2001, pet. denied). In other words, an appellate court is without jurisdiction to review a motion to vacate or set aside a judgment if the motion is filed in the trial court after that court's plenary power has expired. See Clewis, 287 S.W.3d at 203 (citing Shackelford, 156 S.W.3d at 607).
After the trial court signed the judgment in the consolidated matter in 2008, no party appealed the judgment or filed any postjudgment motion that extended the trial court's plenary power. See TEX. R. CIV. P. 329b(a), (e), (g); Shackelford, 156 S.W.3d at 607. As noted above, by the time Redding filed her motion to set aside the 2008 judgment, the trial court's plenary power had expired because the motion was filed more than thirty days after the judgment was signed. See TEX. R. CIV. P. 329b(f); Shackelford, 156 S.W.3d at 607. An untimely motion to set aside a judgment provides no basis for consideration on appeal. See Shackelford, 156 S.W.3d at 607; Zarate, 40 S.W.3d at 623. As a result, the trial court's order denying Redding's motion to set aside is not an appealable order. See Zarate, 40 S.W.3d at 623 (stating that appeals allowed only from final judgments). Thus, we have no jurisdiction to consider the trial court's ruling on Redding's motion to set aside the 2008 judgment. See Shackelford, 156 S.W.3d at 607; Zarate, 40 S.W.3d at 623.
DISPOSITION
We dismiss this appeal for want of jurisdiction.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
JUDGMENT
IN THE GUARDIANSHIP OF WILIAM N. FOWLER,
AN INCAPACITATED PERSON
Appeal from the County Court at Law #1
of Henderson County, Texas. (Tr.Ct.No. 28-2006CL)
THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein; and the same being considered, it is the opinion of this court that this court is without jurisdiction of the appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.