Wallingford v. Trinity Universal Ins. Co.

• Decision Date: 23 October 2007
• Docket Number: No. 07-06-0142-CV.,07-06-0142-CV.
• Citation: 253 S.W.3d 720
• Parties: Cheryl Sue WALLINGFORD, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

253 S.W.3d 720

Cheryl Sue WALLINGFORD, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.

No. 07-06-0142-CV.

Court of Appeals of Texas, Amarillo.

October 23, 2007.

Rehearing Overruled November 27, 2007.

Benton Musslewhite, Helen D. O'Conor, Houston, TX, for Appellant.

Christopher J. Ameel, Adami, Goldman & Shuffield, Inc., Austin, TX, for Appellee.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

The trial court dismissed the "old act"¹ workers' compensation case of appellant Cheryl Sue Wallingford for want of prosecution. Thereafter, she received notice of the dismissal, timely filed a motion to reinstate, and participated in the hearing of her motion. Despite indication of the trial court's intention to reinstate, no order of reinstatement was signed. After the court's plenary jurisdiction expired, it sustained Trinity's motion to dismiss for lack of jurisdiction. Wallingford timely appealed. Finding the trial court lost jurisdiction when no order of reinstatement was signed during the period of its plenary jurisdiction, we affirm.

Background

Wallingford alleges she received a compensable injury in the course and scope of her employment. Unsatisfied with the award of the Industrial Accident Board, she brought suit against Trinity, her employer's workers' compensation carrier, in August 1989. We will mention only so much of the litigation's long history as is pertinent to the issues raised in this appeal.

In July 2004, Trinity filed a motion to dismiss for want of prosecution according to Texas Rule of Civil Procedure 165a and the court's inherent power to dismiss cases not diligently prosecuted.² Wallingford's counsel was not present for the hearing of the motion held the following month. When the court inquired about the absence of Wallingford's counsel, counsel for Trinity stated that he left a telephone message with Wallingford's counsel and provided him written notice. The court granted the motion by order signed August 24, 2004.

Wallingford filed a motion to reinstate on September 23, 2004, asserting her counsel did not receive notice of Trinity's motion to dismiss until a time after the court signed the order of dismissal. Along with this motion Wallingford submitted a proposed order of reinstatement. The court heard Wallingford's motion to reinstate on October 18, 2004, and orally pronounced reinstatement of the case. The reinstatement was also noted in a printed docket sheet entry. However, the court did not reduce its decision to a signed written order.

Following the hearing, the parties treated the case as reinstated. Wallingford filed a motion for continuance in January 2005 which Trinity did not oppose and the parties joined in an agreed scheduling order in April 2005, which, among other things, set the case for trial in December 2005. The record indicates discovery followed.

On October 27, 2005, Wallingford's co-counsel submitted a proposed order of reinstatement to the district clerk. The court took no action on the proposed order, but its submission apparently jogged the memory of Trinity. On November 15, 2005, Trinity filed a motion to dismiss for lack of subject matter jurisdiction asserting the court's August 24, 2004, order was final and because the court's subsequent rendition of reinstatement was not reduced to a written order it lost plenary power on December 8, 2004, to alter the order. The trial court granted Trinity's motion on November 23, 2005, and denied Wallingford's motion for reconsideration on January 31, 2006. This appeal followed.

Standard of Review

A motion to dismiss based on the absence of subject matter jurisdiction is the functional equivalent to a plea to the jurisdiction challenging the trial court's authority to determine the subject matter of a cause of action. Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex.App.Houston [14th Dist.] 2004, no pet.), citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a court has subject matter jurisdiction is a question of law which we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

Issues Presented

Wallingford asserts three broad issues each encapsulating multiple sub-issues. We will address Wallingford's issues in the following sequence: (1) Was the trial court's dismissal order of August 24, 2004, void? (2) Was the case retained despite the absence of a signed, written order of reinstatement? (3) Is Texas Rule of Civil Procedure 165a unconstitutional?

Issue One — Was the trial court's order of August 24, 2004, void?

Wallingford precedes her argument that the court's August 24, 2004, dismissal order is void with the contention that the trial court effectively vacated the order at the October 18, 2004, hearing of her motion to reinstate. Wallingford cites Quanaim v. Frasco Restaurant & Catering, Frasco, Inc., 17 S.W.3d 30 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) and In re Hamilton, 975 S.W.2d 758 (Tex.App-Corpus Christi 1998, pet. denied), which address circumstances in which a second judgment signed by a court that retains plenary power can be found to have replaced an earlier judgment. Wallingford notes the language of the Quanaim opinion stating that cases holding a second judgment replaced a first judgment require "something in the record clearly demonstrat[ing] the trial court's intent to replace the first judgment with the second judgment." 17 S.W.3d at 37 (emphasis in original). In this case, Wallingford argues, that something can be found in statements of the trial judge during the October 2004 hearing on her motion to reinstate. She concludes that the trial court there "held the [o]rder of August 24, 2004 to be a nullity for lack of due process and fraud upon the court, and effectively vacated the prior order." Neither Quanaim nor Hamilton supports a contention that a trial court can vacate a written judgment through later oral statements. The cases address the effect of later written judgments on earlier written judgments. Quanaim, 17 S.W.3d at 38; Hamilton, 975 S.W.2d at 761.

Wallingford bases her claim the dismissal order was void on her characterizations of the actions of Trinity's counsel at the August 24 hearing. She contends counsel's representations to the court that he notified Wallingford's counsel by telephone of the motion to dismiss and served Wallingford's counsel with written notice of the motion were false and constituted a fraud on the court.³ She further contends the trial court's entry of the dismissal order based on the assertedly fraudulent representations and without notice to her violated her due process rights.

Without expressing any opinion on the accuracy of Wallingford's assertion that the August 2004 dismissal order was procured through a fraudulent misrepresentation and without notice to her, we find the dismissal order was not void. The supreme court has observed that "[i]n general, as long as the court entering a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void." Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003) (citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990)). Action of a court that is contrary to a statute, constitutional provision, or rule of civil or appellate procedure is erroneous and voidable, subject to correction through the ordinary appellate process or other proper proceedings. Reiss, 118 S.W.3d at 443; Mapco, 795 S.W.2d at 703.

Wallingford further argues that final judgments may be set aside if fraudulently procured. For the proposition, she cites Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94 (1940) and Lanier v. Parnell, 190 S.W.2d 421 (Tex.Civ.App.-Waco 1945, no writ). Neither case advances Wallingford's argument.

In Crouch, the defendants attempted to enjoin execution on a final judgment, allegedly procured by the perjury of the plaintiff. 138 S.W.2d at 95-96. In denying the defendants' application for a writ of prohibition the court held something more than injustice must be shown in a subsequent action to set aside a final judgment. Id. at 96. According to the court, a subsequent suit to vacate a prior judgment requires proof of extrinsic fraud that prevented a losing party from knowing about its rights or defense or from having a fair opportunity to present them at trial. Fraud of this kind and character, observed the court, denies a litigant "`the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert.'" Id. at 97 (quoting State v. Wright, 56 S.W.2d 950, 952 (Tex.Civ.App.-Austin 1933, no writ)).

In Lanier, the court of civil appeals commented in dicta that the only way the appellant could attack a final judgment, after his appellate rights lapsed, was through proof of "fraud, accident or mistake, etc." 190 S.W.2d at 423.

Wallingford received notice of the August 24, 2004, order and timely filed a sixty-six page motion to reinstate containing affidavits and numerous exhibits. At the hearing on Wallingford's motion, her counsel addressed her lack of notice claim. In other words, at the reinstatement hearing Wallingford received the same opportunity to counter Trinity's motion to dismiss as her appearance at the August 24, 2004, hearing would have provided. See State v. Rotello, 671 S.W.2d 507, 508 (Tex. 1984); Finlan v. Peavy, 205 S.W.3d 647, 654 (Tex.App.-Waco 2006, no pet.) (both noting that hearing on motion to reinstate is the same hearing with the same burden of proof as a hearing before dismissal). Wallingford's first issue is overruled.

Issue Two — Was the case reinstated despite the absence of a signed written order?

By her second issue, Wallingford contends that the trial court erred by dismissing her case for want of subject matter jurisdiction because the court's intention to reinstate appears in the reporter's record and on a printed docket sheet, a proposed order of...