Serna v. Webster

• Citation: 908 S.W.2d 487
• Decision Date: 23 August 1995
• Docket Number: No. 04-94-00834-CV,04-94-00834-CV
• Parties: Roberto SERNA; R. Edward Pfiester, Jr.; and Victor A. Russo, Appellants, v. Raymond WEBSTER; Michael D. Cucullu; and Cynthia L. Muniz-Berain, Appellees.
• Court: Court of Appeals of Texas

Page 487

908 S.W.2d 487

Roberto SERNA; R. Edward Pfiester, Jr.; and Victor A Russo, Appellants, v. Raymond WEBSTER; Michael D. Cucullu; and Cynthia L Muniz-Berain, Appellees.

No. 04-94-00834-CV.

Court of Appeals of Texas San Antonio.

Aug. 23, 1995.

Rehearing Overruled Oct. 27, 1995.

Alberto M. Ramon, Law Office of Alberto M. Ramon, Eagle Pass, for Appellants.

Richard O. Gonzales, Uvalde, for Appellees.

Before CHAPA, C.J., and RICKHOFF and LOPEZ, J.J.

CHAPA, Chief Justice.

Appellants bring this appeal by writ of error from the trial court's division of attorney fees in a personal injury case. The dispositive issues to be determined are (1) whether the trial court's plenary jurisdiction had expired at the time it entered the order determining attorney fees and (2) whether we have jurisdiction over this appeal. We conclude that the order was entered while the trial court had plenary jurisdiction, and that we do not have jurisdiction over this appeal.

Procedural Background

Appellant R. Edward Pfiester, Jr., a Law Corporation, of Los Angeles, California, was the attorney of record for appellee Webster in his personal injury action against Southern Pacific Transportation Company. Appellant Victor A. Russo was Pfiester's employee, and appellant Roberto Serna, of Crystal City, Texas, was local counsel. Appellants and Webster had signed a contingency contract for professional services. Webster discharged appellants as his attorneys and retained appellees Michael D. Cucullu and Cynthia L. Muniz-Berain. Appellees went to trial against Southern Pacific and won a judgment of $148,934.55, which was signed on August 15, 1994. Appellants did not participate in the trial on the merits, nor were they served with process in the cause.

On February 14, 1994, appellants filed in the trial court, under the case number and style of Webster's action against Southern Pacific, a document entitled "Notice of Lawyer's Lien of R. Edward Pfiester, Jr., a Law Corporation." The document stated:

PLEASE TAKE NOTICE that R. EDWARD PFIESTER, JR., A LAW CORPORATION, hereby asserts the lien which it has to any proceeds which may in the future be received by Plaintiff herein.

Said lien is for the reasonable value of the attorney's services rendered up to the time of discharge and for any costs advanced (together with interest accrued thereon).

The certificate of service shows that the document was served upon the attorneys for Southern Pacific and the appellees. Thereafter appellants and appellees were unable to come to an agreement on the amount of fees and expenses owing to appellants for their prior participation in the litigation. On August 12, 1994, prior to the signing of the final judgment, appellees filed a "Motion to Determine Attorney Fees" in the trial court under the case number and style of Webster's action against Southern Pacific. The trial court signed a fiat on August 12, setting a hearing on the Motion to Determine Attorney Fees for August 17. The certificate of service showed the motion was sent to "all counsel of record"; appellants were not counsel of record. However, the fiat and motion were served by facsimile and mail on appellants on August 12. Appellants filed a motion for continuance on August 16. The hearing on both the continuance and appellees' Motion to Determine Attorney Fees was held on August 17. Appellant Serna appeared at the hearing, representing Pfiester and Russo. The trial court first heard appellants' motion for continuance and denied it. The court then proceeded to hear the motion regarding attorney fees. Although appellant Serna announced "not ready" on the motion, and objected to the proceedings at various times and challenged the court's jurisdiction to determine the issue, he nonetheless remained throughout the hearing. At the conclusion of the hearing, the judge announced his decision, giving a detailed apportionment of the attorney fees between appellants and appellees Cucullu and Muniz-Berain.

On September 20, 1994, the trial court entered its order memorializing the allocation of attorney fees between appellants and appellees. The order recites that Serna appeared on behalf of "Respondent." ¹ On November 1, 1994, appellants filed their petition for writ of error, alleging that because the appellants had not been brought under the trial court's jurisdiction by interpleader, the controversy was not before the trial court, and the trial court's order was, therefore, "a nullity." In response to appellants' petition for writ of error, appellees filed in this court a motion to dismiss the appellants' petition and a request for sanctions, alleging that the writ of error was filed solely for the purposes of delay. ² We held the appellees' motion in abeyance pending submission, and ordered both parties to brief the dismissal issue in their respective briefs. ³

Trial Court's Plenary Jurisdiction

During oral argument appellants raised the issue of whether the trial court's plenary jurisdiction had expired at the time the court entered its order on September 20, which was more than thirty days after the final judgment had been signed on August 15.

Although the trial court's order was signed on September 20, he rendered his opinion at the hearing on August 17. In Comet Aluminum Co. v. Dibrell, the Texas Supreme Court defined "rendition" by stating:

In Coleman v. Zapp. 105 Tex. 491, 151 S.W. 1040, at 1041 (1912), we stated that a judgment's "rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue." And in Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, at 292 (1953), we quoted Freeman on Judgments as stating that a judgment is " 'rendered' when the decision is officially announced either orally in open court or by memorandum filed with the clerk." We then quoted with approval from Appeal of Bulkeley, 76 Conn. 454, 57 A. 112, 113 [ (1904) ], as follows:

"A judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk, in his official capacity and for his official guidance--whether orally or by written memorandum--the sentence of the law pronounced by him in any cause."

Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 (Tex.1970) (footnotes omitted). On the other hand, "[t]he signing of a formal order or judgment is essential to trigger the appropriate appellate timetable under [Texas Rule of Civil Procedure] 306a, but is otherwise merely a ministerial, mechanical act." Schaeffer Homes, Inc. v. Esterak, 792 S.W.2d 567, 569 (Tex.App.--El Paso 1990, no writ); see TEX.R.CIV.P. 306a(1) (date of signing judgment or order begins appellate timetable, but "shall not determine what constitutes rendition of a judgment or order for any other purpose"). We conclude that the rendition of the division of attorney fees occurred on August 17, well within the trial court's plenary jurisdiction, and that the signing of the order on September 20 was purely a ministerial act. Because we find that the trial court's decision was rendered within its plenary jurisdiction, we next address whether the appeal of the order is properly before us.

Elements of Writ of Error

The requirements for bringing an appeal by writ of error are: (1) the appeal must be brought within six months after the judgment was signed; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error must be apparent from the face of the record. General Elec. Co. v. Falcon Ridge Apts., Joint Venture, 811 S.W.2d 942, 943 (Tex.1991); Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985); Brown v. McLennan County Children's Protective Servs., 627 S.W.2d 390, 392 (Tex.1982). Each of these elements is mandatory and jurisdictional. Robertson v. Hide-A-Way Lake Club, Inc., 856 S.W.2d 841, 843 (Tex.App.--Tyler 1993, no writ).

Analysis

It is clear from the record that appellants meet the first requirement, having timely filed their petition. The next issue to be determined is whether appellants are parties to the suit. Generally, an appeal by writ of error is available only to parties of record. Mobil Exploration & Producing U.S., Inc. v. McDonald, 810 S.W.2d 887, 889 (Tex.App.--Beaumont 1991, writ denied). As pointed out by appellants, an exception allows nonparties to bring a writ of error, provided the nonparty is " 'one whose privity of estate, title or interest appears from the record of the cause in the court below.' " Johnson v. Johnson, 841 S.W.2d 114, 115 (Tex.App.--Houston [14th Dist.] 1992, no writ) (quoting Mobil Exploration, 810 S.W.2d at 889). Appellants contend that they are nonparties to the suit, and thus the judgment entered by the trial court is completely without effect. Appellants assert that the appellees should have properly interplead them and, lacking such interpleader, they were not properly before the court at the time of the hearing. "Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability." TEX.R.CIV.P. 43. A petitioner in interpleader must prove: (1) that he is subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) that he has not unreasonably delayed in filing the interpleader action; and (3) that he has unconditionally tendered the funds into the court. Daniels v. Pecan Valley Ranch, Inc., 831 S.W.2d 372, 385 (Tex.App.--San Antonio 1992), cert. denied, 508 U.S. 965, 113 S.Ct. 2944, 124 L.Ed.2d 692 (1993). We must determine whether the instrument entitled "Motion to Determine Attorney Fees" was in fact an interpleader. It is clear in the instant case that both appellants and appellees claimed a portion of the amount of attorney fees set aside by the court. ⁴ Appellees did not unreasonably delay in filing their Motion to Determine Attorney Fees, having filed it before the...