Von Falkenhorst v. Ford

• Decision Date: 14 June 2022
• Docket Number: 14-20-00867-CV
• Citation: Von Falkenhorst v. Ford, 651 S.W.3d 563 (Tex. App. 2022)
• Parties: Rainer VON FALKENHORST III, Appellant v. George D. FORD Jr. and Harris County Children's Protective Services, Appellees
• Court: Texas Court of Appeals

651 S.W.3d 563

Rainer VON FALKENHORST III, Appellant

v.George D. FORD Jr. and Harris County Children's Protective Services, Appellees

NO. 14-20-00867-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 14, 2022

Robert J. Hazeltine-Shedd, for Appellee.

Rainer von Falkenhorst III, Pro Se.

Panel consists of Chief Justice Christopher and Justices Bourliot and Spain

Tracy Christopher, Chief Justice

Nearly fourteen years after his parental rights were terminated, appellant Rainer von Falkenhorst III filed a bill of review to overturn the June 15, 2006, final order of termination and reverse his child's subsequent adoption.¹ Although he named as defendants Harris County Children's Protective Services, its former director, and two former judges, no defendants were served or appeared. von Falkenhorst nevertheless filed in the trial court a document styled as "Plaintiff's 2nd Final Motion for Summary Judgment on All parties Listed and Plaintiffs Response to Defendant George D. Ford, Jr and Harris County Child Protective Services Motion for Summary Judgment."

After an oral hearing at which only von Falkenhorst appeared, the trial court signed a final order dismissing the bill of review with prejudice. The trial court stated in the final order that von Falkenhorst did not properly serve any of the named defendants and that the bill of review is barred by the limitations periods set forth in Texas Family Code § 161.211 and Texas Civil Practice and Remedies Code § 16.051. See TEX. FAM. CODE ANN. § 161.211(a) ("[T]he parental rights of a person who has been personally served ... is not subject to collateral or direct attack after the sixth month after the date the order was signed."); TEX. CIV. PRAC. & REM. CODE ANN. 16.051 (residual limitations period, which applies to a bill of review, is four years). Regarding the four-year limitations period, the trial court additionally stated that von Falkenhorst failed to show any evidence of extrinsic fraud that would toll limitations.

On appeal, von Falkenhorst challenges the final order only on the grounds that (1) the defendants were in fact served, so that the trial court should have granted his summary-judgment motion by default; (2) he showed evidence of extrinsic fraud that would toll the four-year statute of limitations; and (3) the Hon. Natalia Cokinos Oakes signed the judgment, although the Hon. William Thursland presided at the hearing.

I.

The record does not show that any defendant was served. The documents von Falkenhorst cites as support for his contention include what appear to print-outs from the United States Postal Service showing that an unidentified piece of mail was left with an unidentified person at an unstated address in Austin, Texas, on October 5, 2020, and a second unidentified piece of mail was delivered to an unstated address in Houston, Texas, on October 19, 2020. The record also contains completed forms titled "Request for Issuance of Service" from the Harris County District Clerk's Office and unofficial copies of the citations, but the return of service on each is blank. These documents are insufficient to establish that any defendant was properly served. See TEX. R. CIV. P. 106, 107.

As for von Falkenhorst's second argument, he cites no evidence of extrinsic fraud that would toll the four-year limitations period applicable to bills of review. Moreover, he does not dispute that this action is time-barred under the more stringent statute of repose that applies to a challenge to an order terminating a person's parental rights.

Regarding his contention that the judgment was signed by a judge other than the one who presided at the hearing, we judicially notice that the Hon. Natalia Cokinos Oakes is the presiding judge of the 313th District Court, and the Hon. William Thursland is the associate judge. The hearing at issue was before Judge Thursland, and contrary to von Falkenhorst's assertion, Judge Thursland also signed the judgment.

von Falkenhorst's remaining arguments pertain to the 2006 final order terminating his parental rights rather than the 2020 judgment that is the subject of this appeal. Because he has presented no arguments for reversing the trial court's judgment under review, we affirm.

( Spain, J., dissenting).

DISSENTING OPINION

Charles A. Spain, Justice

If a trial court renders judgment on the merits of a petition for a bill of review despite a complete lack of service on any defendant to the underlying final judgment, is the trial court's order void under the Supreme Court's decision in Peralta v. Heights Medical Center, Inc. , 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) ? Can an individual or entity that was not a party to the underlying final judgment be a proper party to the bill-of-review proceeding? Is such an individual or entity even a "party" or an "appellee" at all if they are not served and do not appear in the bill-of-review proceeding?

While this case is weird, it raises important due-process questions which have not been briefed and which the majority does not address. While it appears to be an issue of first impression whether the lesson of Peralta —that a lack of personal jurisdiction may, if sufficiently severe, deprive the trial court of subject-matter jurisdiction—applies in the bill-of-review context, I see no reason why it would not, particularly given the extraordinary relief involved in a bill of review. See Alexander v. Hagedorn , 148 Tex. 565, 226 S.W.2d 996, 998 (1950) ("Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, ... bills of review seeking relief from judgments are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted[.]") (quotation omitted). I dissent.

Appellant filed a petition for a bill of review but did not serve any of the named defendants.¹ Appellant then filed a summary-judgment motion to which it appears no evidence was attached. After a hearing attended only by appellant,² the trial court signed a final order denying appellant's bill of review on the merits.³ The trial court stated in the judgment that (1) "Plaintiff did not properly serve any of the named defendants with citation," (2) "Plaintiff's petition is barred by the applicable limitation periods," and (3) "[P]laintiff has failed to show any evidence of extrinsic fraud that would toll the four-year statute of limitations."

In essence, then, the trial court rendered judgment denying the bill of review based on determinations regarding failure of service and the validity of a limitations defense on which no evidence was presented. The majority affirms this judgment.

While I agree with the majority that the issues appellant raises on appeal are meritless, it appears to me there are deeper due-process concerns raised by the trial court's judgment. I am not aware of any authority that a trial court has the power to render judgment on a petition for a bill of review when no defendant has been served.⁴ As explained by the Supreme Court, "a judgment entered without notice or service is constitutionally infirm." Peralta , 485 U.S. at 84, 108 S.Ct. 896 ; see also Gray v. PHI Res., Ltd. , 710 S.W.2d 566, 567 (Tex. 1986) ("It is a fundamental tenet of our law that a plaintiff must properly invoke the jurisdiction of a trial court by valid service of citation on a defendant."). Based on Peralta , the Supreme Court of Texas has concluded that "[t]he record affirmatively demonstrates a jurisdictional defect sufficient to void a judgment when it either: (1) establishes that the trial court lacked subject matter jurisdiction over the suit; or (2) exposes such personal jurisdictional deficiencies as to violate due process." PNS Stores, Inc. v. Rivera , 379 S.W.3d 267, 273 (Tex. 2012). Accordingly, as the supreme court recently reiterated, "[a] complete failure of service deprives a litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void and may be challenged at any time." Mitchell v. MAP Res., Inc. , No. 21-0124, 649 S.W.3d 180, 194 (Tex. May 13, 2022) (quoting In re E.R. , 385 S.W.3d 552, 566 (Tex. 2012) ).

The Supreme Court of Texas has not specifically explained how Peralta applies in a case such as this, in which no defendant to the bill-of-review proceeding was served; Peralta itself addressed a circumstance in which parties to the lawsuit underlying a bill of review had not been served. The principles announced in Peralta , however, appear to me to compel the conclusion that the deficiencies in personal jurisdiction stemming from a complete lack of service on any defendant in this case violate due process and accordingly void the trial court's judgment. See PNS Stores, Inc. , 379 S.W.3d at 273 (applying Peralta ). While the trial court could have dismissed the petition for want of prosecution based on lack of service, I do not believe it possessed the power to render judgment on the merits based on lack of service. While this conclusion may be counterintuitive, I believe it is mandated by Peralta.⁵

Because I conclude the trial court's judgment is void, I would reverse the judgment and remand for further proceedings. See Freedom Commc'ns, Inc. v. Coronado , 372 S.W.3d 621, 623–24 (Tex. 2012) (per curiam) ("[A]ppellate courts do not have jurisdiction to address the merits of appeals from void orders or judgments; rather, they have jurisdiction only to determine that the order or judgment underlying the appeal is void and make appropriate orders based on that determination.").⁶

While a bill-of-review proceeding from an underlying final order terminating parental rights might be unusual in family district court, at the intermediate appellate court an appeal from a merits-based denial of an equitable bill of review in which no party to the underlying judgment has been served or appeared should raise concern about a void judgment. We are, after all,...