Remley v. Kleypas, Civ. A. No. B-84-93-CA.

• Decision Date: 30 September 1986
• Docket Number: Civ. A. No. B-84-93-CA.
• Citation: 645 F. Supp. 690
• Parties: Eunice REMLEY v. Mary Jo KLEYPAS, et al.
• Court: U.S. District Court — Eastern District of Texas

645 F. Supp. 690

Eunice REMLEY v. Mary Jo KLEYPAS, et al.

Civ. A. No. B-84-93-CA.

United States District Court, E.D. Texas, Beaumont Division.

September 30, 1986.

James E. Montgomery, Jr., Beaumont, Tex., for plaintiff.

Gary Gatlin and March Coffield, Seale, Stover, Coffield & Gatlin, Jasper, Tex., for defendants.

MEMORANDUM OPINION

COBB, District Judge.

This case presents a sad tale of too little, too late. Plaintiff, Mrs. Remley, of New York City, borrowed $3,000 from the First National Bank of Jasper, Texas, with Susie Braswell as co-maker. The note became due and overdue, and not paid. Suit was instituted for the $3,000, interest, and attorney's fees, and alleged the indebtedness was secured by a certain mineral interest in Sabine County, Texas. The suit was filed May 27, 1975, Mrs. Remley was served through the office of the Texas Secretary of State on May 29, 1975, who forwarded the citation and petition to her on the next day by certified mail, pursuant to Art. 2031b, TEX.REV.CIV.STAT.ANN. (Vernon 1964), which she received June 16, 1975.

Mrs. Remley filed a Special Appearance, a hearing thereon was set by the trial court, Remley was notified to appear at the hearing, but she failed to appear. Not surprisingly, the state court overruled her Special Appearance. She received notice of the court's ruling, but she did not employ anyone to file an answer or otherwise protect her interests in the state court suit.

On September 29, 1975, default judgment was entered by the District Court of Sabine County, Texas, in favor of Susie Braswell for $6,879.30, plus interest, costs and attorney's fees.

To secure collection of said judgment, Susie Braswell was also awarded title to an undivided one-half interest in all the oil, gas and other minerals in property situated in Sabine County, Texas. Remley was notified of the entry of default judgment as required by Rule 239a, Texas Rules of Civil Procedure.

On October 22, 1980, Susie Braswell obtained a judgment nunc pro tunc in the same cause. Said judgment awarded her outright title to Eunice Remley's Sabine County mineral interest, instead of a mere lien on said property. The summary judgment record does not show Remley was served with notice that the judgment nunc pro tunc was being sought.

The mineral interest was sold at a Sheriff's Execution Sale on March 3, 1981, for $20,000.00 to satisfy the original 1975 judgment, and not the 1981 nunc pro tunc. The District Clerk issued the writ, delivered to the Sheriff, who caused it to be published as required, and Remley knew of the pending execution sale. The Sabine County District Clerk forwarded to Ms. Remley a check in the amount of $4,072.33, which represented the excess proceeds of the sale above the amount of the 1975 judgment, interests, costs and attorney's fees. Said check was endorsed and cashed by Keith Eloff, plaintiff's representative, who was present at the Sheriff's sale but did not bid.

Eunice Remley did not appeal the order overruling her Special Appearance, the 1975 judgment, nor the 1980 judgment nunc pro tunc. Instead, Ms. Remley filed this diversity action in federal court seeking to establish title to the subject property by setting aside the judgments and the execution sale. Named as defendants in this suit are the purchasers at the execution sale, John H. Seale, Johnnye Sue Martindale, and Mary Jo Kleypas, successors to whatever interest was acquired at the Sheriff's sale. All defendants have moved for summary judgment.

The plaintiff responded with a 1½ page reply, and 5-page letter, neither of which contain any citation to any case law, cites one of the Rules of Civil Procedure concerning amended pleadings, and two statutes, Art. 3.06 TEXAS BUSINESS & COMMERCE CODE (which section does not exist), the other being Art. 2031b, TEX.REV. CIV.STAT.ANN. (Vernon 1964), the Long-Arm Statute. This has not aided the court in its task, nor Mrs. Remley in her quest for return of her mineral interests. Defendants, while furnishing adequate summary judgment exhibits, have not submitted a comprehensive brief to support their position or to aid in the disposition of the cause, and cite only one decision, Golden Panagia v. Panama Canal Comm'n, 791 F.2d 1191 (5th Cir.1986), in which Judge Goldberg succinctly cites the ruling authority for Final Judgment procedures:

Counsel ... informed this court at oral argument that Newell is ... dead. A Higher Court thus has jurisdiction over Henry Newell, and we are confident that any sins he may have committed will be dealt with appropriately there. See Matthew 25:41-46 (explaining Final Judgment procedures).

n. 7, p. 1199.

Thus, none of the litigants have done much to help this court in its analysis of the legal issues involved.

I. THE 1975 DEFAULT JUDGMENT

A distinction must be made at the outset of this discussion between a collateral and a direct attack upon a judgment. A "direct attack" on a judgment is an attempt to amend, correct, reform, vacate, or enjoin execution of judgment in a proceeding instituted for that purpose, such as a motion for rehearing, an appeal, some form of writ of error, a bill of review, or an injunction to restrain its execution. Pena v. Bourland, 72 F.Supp. 290 (S.D.Tex.1947). An attack, to be direct, must be brought in a court where such judgment was rendered. Pena, 72 F.Supp. at 294. See, Switzer v. Smith, 300 S.W. 31 (Tex.Comm'n App. 1927). In contrast, a collateral attack is defined as an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating, but in order to obtain specific relief against which judgment stands as a bar. Texaco, Inc. v. LeFevre, 610 S.W.2d 173 (Tex.Civ.App.—Houston 1980 no writ). Thus, the instant case is not a suit to set aside or have vacated the 1975 default judgment, but rather, it is an action to establish title to the subject property in the plaintiff, who stands on the proposition that the default judgment is an absolute nullity, and as such, is subject to collateral attack.

It is well established under Texas and federal law that a collateral attack on a judgment will prevail only if the judgment is void and not merely voidable. Little v. Celebrezze, 259 F.Supp. 9, 11 (N.D.Texas 1966); See also, Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283 (1959); and Stinson v. Stinson, 668 S.W.2d 840 (Tex.App.—San Antonio 1984, writ ref'd n.r.e.). Judgments which affirmatively show a jurisdictional defect on the face of the judgment or in the record are classified as void judgments. Ranger Insurance Co. v. Robertson, 680 S.W.2d 618 (Tex.App.—Austin, 1984, no writ); Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.1973); Litton v. Waters, 161 S.W.2d 1095 (Tex. Civ.App.—San Antonio 1942, writ ref'd). Plaintiff's attorney asserts the citation served on the Secretary of State was not on file 10 days in the District Clerk's office of Sabine County before the 1975 default judgment as required by Texas law. It is thoroughly established that the Rules of Civil Procedure relating to issuance, service and return of citation are regarded as mandatory, and failure to show affirmatively a strict compliance with the Rules will render the attempted service of process invalid and of no effect. Mega v. Anglo Iron & Metal Co. of Harlingen, 601 S.W.2d 501 (Tex.Civ.App.—Corpus Christi 1980, no writ); Harrison v. Dallas Court Reporting College, Inc., 589 S.W.2d 813 (Tex.Civ.App.—Dallas 1979, no writ). The court agrees with this position; however, plaintiff misstates the facts in the present case. The summary judgment exhibits submitted by defendants show the executed citation was filed with the Sabine County District Clerk on June 9, 1975. Thus, no serious jurisdictional defects appear in the record or on the face of the 1975 default judgment which would cause said judgment to be set aside by this court.

It is equally well settled that, as against a collateral attack, a clear and definite recital in the judgment on jurisdictional matters is conclusive of the issue of jurisdiction, imports absolute verity and no evidence of any kind, not even the remainder of the record, will be considered in contradiction thereof, even though such evidence would show that jurisdiction was not, in fact, acquired. Imatani v. Marmolejo, 606 S.W.2d 710 (Tex.Civ.App.—Corpus Christi 1980, no writ); Allen v. Bolton, 416 S.W.2d 906 (Tex.Civ.App.—Corpus Christi 1967, no writ); Treadway v. Eastburn, 57 Tex. 209 (1881); Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932 (Tex.Comm'n App.1935). The judgment in the case at bar recites the necessary jurisdictional facts, and therefore can only be assailed by a direct proceeding. Levy v. Roper, 113 Tex. 356, 256 S.W. 251 (1923); Robins v. Sandford, 29 S.W.2d 969 (Tex.Comm.App.1930); Imatani, 606 S.W.2d at 713. Thus, this court is compelled to hold that the plaintiff may not show in this collateral attack on the 1975 default judgment that the judgment is void for the reason that no valid service of process was effectuated upon the plaintiff. The judgment is regular and valid on its face, and the remainder of the summary judgment exhibits support the judgment's validity.

The plaintiff had an adequate opportunity to challenge the Texas court's jurisdiction by way of Special Appearance. Green v. Green, 424 S.W.2d 479 (Tex.Civ.App.— Tyler 1968, no writ). Plaintiff entered a Special Appearance by and through her attorney of record; however, plaintiff failed to appear at a hearing on this matter even after receiving notice of an order setting the hearing. As a result, the Texas court correctly overruled plaintiff's Special Appearance, rendering plaintiff amenable to the court's jurisdiction, and requiring plaintiff to answer the petition. Plaintiff neither appealed said ruling, nor requested a rehearing on the matter. When plaintiff failed to submit an answer to the Texas suit, the Texas court properly entered a default...