State Office of Risk Mgmt. v. Berdan

• Decision Date: 03 February 2011
• Docket Number: No. 13–09–00602–CV.,13–09–00602–CV.
• Parties: STATE OFFICE OF RISK MANAGEMENT, Appellant,v.Maria L. BERDAN, Appellee.
• Court: Texas Court of Appeals

335 S.W.3d 421

STATE OFFICE OF RISK MANAGEMENT, Appellant,

v.Maria L. BERDAN, Appellee.

No. 13–09–00602–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Feb. 3, 2011.Rehearing Overruled March 9, 2011.

Norberto Flores, Assistant Attorney General, Austin, TX, for Appellant.Alan B. Daughtry, Michael P. Doyle, Doyle Raizner LLP, Houston, TX, for Appellee.Before Chief Justice VALDEZ and Justices RODRIGUEZ and PERKES.

OPINION

Opinion by Chief Justice VALDEZ.

In this workers' compensation case, the State Office of Risk Management (“SORM”) attempts to appeal a summary judgment and other orders rendered in favor of Maria L. Berdan. We dismiss the appeal for want of jurisdiction.

I. BACKGROUND

The trial court rendered summary judgment in favor of Berdan on June 8, 2009, and rendered an order granting her statutory reimbursement of her attorney's fees on August 18, 2009. SORM filed a motion for new trial on September 30, 2009, and a notice of appeal on October 30, 2009.

On November 5, 2009, the Clerk of this Court notified SORM that its motion for new trial and notice of appeal were not timely filed, so that steps could be taken to correct this defect, if it could be done. SORM was advised that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of this Court's letter.

SORM filed a response to the Court's notice through which SORM asserts that it failed to comply with section 410.258 of the Texas Labor Code, which requires it to file any proposed judgment with the workers' compensation division not later than the thirtieth day before the date on which the court is scheduled to enter the judgment. See TEX. LAB. CODE ANN. § 410.258 (Vernon 2006). SORM argues that its noncompliance with the labor code renders the judgment void, and because there is no final judgment, SORM's appeal is timely.

II. PRESUMPTION OF REGULARITY

We disagree with SORM's analysis. SORM's response to this Court's directive is neither verified nor supported by affidavit. See generally TEX. R. APP. P. 10.2; see also TEX. GOV'T CODE ANN. § 22.220(c) (Vernon Supp. 2010) (providing that an appellate court may on affidavit or otherwise, as the court may determine, ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction). SORM avers that it did not send the division a copy of the proposed judgment until September 29, 2009, and includes copies of the certified mail receipt thereof. However, without a proper verification or affidavits, there is no evidence before this Court supporting these allegations. We are to presume the regularity of judgments, absent controverting matter in the record. See S. Ins. Co. v. Brewster, 249 S.W.3d 6, 13–14 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (collecting authorities); see also Bell v. Zurich Am. Ins. Co., 311 S.W.3d 507, 513 (Tex.App.-Dallas 2010, pet. denied) (supplemental op. on reh'g) (stating that the record and judgment were silent regarding compliance with section 410.258 and holding that the judgment was not void); Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129, 134–35 (Tex.App.-San Antonio 2005, no pet.) (explaining that the reviewing court presumes the regularity of a judgment absent controverting evidence; where both the judgment and record were silent regarding compliance with section 410.258(a), the judgment was not void); Casillas v. State Office of Risk Mgmt., 146 S.W.3d 735, 738–39 (Tex.App.-El Paso 2004, no pet.) (stating that the judgment and record were silent on the question of compliance with section 410.258, and accordingly, the judgment was not void).

SORM carried the burden to establish why this Court should not apply the presumption regarding the regularity of judgments. See Brewster, 249 S.W.3d at 14. SORM failed to carry that burden herein. Accordingly, we presume that the judgment at issue was timely filed and is not void, and thus, SORM's notice of appeal was untimely. However, even if we were to accept SORM's ipse dixet that it failed to comply with the requirements of the labor code, we would nevertheless conclude that the judgment at issue is not void as further discussed herein.

III. STATUTORY CONSTRUCTION

Our primary objective in construing a statute is to give effect to the Legislature's intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). In deriving the Legislature's intent, we rely on the plain meaning of the statutory text, unless a different meaning is supplied by legislative definition or is apparent from context, or such construction leads to absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008). We presume that “the entire statute is intended to be effective” and that “a just and reasonable result is intended,” and we consider the “object sought to be attained” by the statute and the “consequences of a particular construction.” TEX. GOV'T CODE ANN. §§ 311.021(2),(3), 311.023(1), (5) (Vernon 2005).

Section 410.258 of the Texas Labor Code, entitled “Notification of Division of Proposed Judgments and Settlements; Right to Intervene,” provides:

(a) The party who initiated a proceeding under this subchapter or subchapter G must file any proposed judgment or settlement made by the parties to the proceeding, including a proposed default judgment, with the division not later than the 30th day before the date on which the court is scheduled to enter the judgment or approve the settlement. The proposed judgment or settlement must be mailed to the division by certified mail, return receipt requested.

(b) The division may intervene in a proceeding under Subsection (a) not later than the 30th day after the date of receipt of the proposed judgment or settlement.

(c) The commissioner shall review the proposed judgment or settlement to determine compliance with all appropriate provisions of the law. If the commissioner determines that the proposal is not in compliance with the law, the division may intervene as a matter of right in the proceeding not later than the 30th day after the date of receipt of the proposed judgment or settlement. The court may limit the extent of the division's intervention to providing the information described by Subsection (e).

(d) If the division does not intervene before the 31st day after the date of receipt of the proposed judgment or settlement, the court shall enter the judgment or approve the settlement if the court determines that the proposed judgment or settlement is in compliance with all appropriate provisions of the law.

(e) If the division intervenes in the proceeding, the commissioner shall inform the court of each reason the commissioner believes the proposed judgment or settlement is not in compliance with the law. The court shall give full consideration to the information provided by the commissioner before entering a judgment or approving a settlement.

(f) A judgment entered or settlement approved without complying with the requirements of this section is void.

TEX. LABOR CODE ANN. § 410.258. The purpose of this provision in the law is to prevent the use of settlement agreements and default judgments to overturn appeals panel decisions. See Ins. Co. of Pa. v. Martinez, 18 S.W.3d 844, 847 (Tex.App.-El Paso 2000, no pet.) (examining the legislative history of section 410.258).¹ This requirement also ensures that the Division of Workers' Compensation, Texas Department of Insurance, has notice and an opportunity to intervene as a matter of right in the proceeding not later than the thirtieth day after receiving a proposed judgment or settlement if it determines that the proposal is not in compliance with the law. See id.

After analyzing the plain language and legislative history of section 410.258, the Austin and Fort Worth Courts of Appeals have concluded that this section is inapplicable to judgments rendered as a result of adversarial proceedings. See Clewis v. Safeco Ins. Co., 287 S.W.3d 197, 202–03 (Tex.App.-Fort Worth 2009, no pet.); Tex. Prop. & Cas. Ins. Guar. Assoc. v. Brooks, 269 S.W.3d 645, 651 (Tex.App.-Austin 2008, no pet.); see also Tex. Dept. of Ins. v. Ins. Co. of Penn., 306 S.W.3d 897, 903 (Tex.App.-Austin 2010, no pet.). The reasoning underlying this holding is explained as follows by the Austin Court of Appeals:

[T]he legislature did not intend that the statute apply to judgments entered by the trial court that were not submitted or proposed to the court by agreement of the parties or the result of a default by the defendant. The statute was intended to prevent the parties from colluding to overturn appeals panel decisions. It accomplishes this purpose by requiring submission of judgments “made” by the parties—i.e. judgments proposed to the court by agreement of the parties rather than judgments entered as a result of adversarial proceedings. If, however, the statute were to apply to any judgment, a strict reading of the statute would require a trial court to figure out a way to get the party who initiated the action to submit the judgment the court is preparing to enter to the Division for approval thirty days in advance of entry in every case. This would be true regardless of whether the judgment is the result of noncollusive, adversarial proceedings or the result of an agreement between the parties. If this were the procedure, a party who initiated an action for judicial review of an agency decision could avoid or delay entry of an adverse judgment by refusing, delaying, or otherwise failing to submit the judgment to the Division. In addition, judgments entered after a failure to appear by the plaintiff or after a failure to prosecute or on the court's motion on jurisdictional grounds would have to be submitted to the Division before entry even if “the party who initiated the proceeding” is not available or is not interested in making the submission. Section 410.258 does not address these types of situations, where the entry of judgment may be appropriate but the judgment...