Zarate v. Sun Operating Limited Inc.

• Decision Date: 07 February 2001
• Docket Number: No. 04-00-00192-CV,04-00-00192-CV
• Citation: 40 S.W.3d 617
• Parties: (Tex.App.-San Antonio 2001) Rudolfo "Rudy" ZARATE, et al., Appellants v. SUN OPERATING LIMITED, INC., et al. and Sun Exploration and Production Company, Appellees
• Court: Texas Court of Appeals

Page 617

40 S.W.3d 617 (Tex.App.-San Antonio 2001)

Rudolfo "Rudy" ZARATE, et al., Appellants v. SUN OPERATING LIMITED, INC., et al. and Sun Exploration and Production Company, Appellees

No. 04-00-00192-CV

Court of Appeals of Texas, San Antonio.

February 7, 2001

From the 229th Judicial District Court, Starr County, Texas Trial Court No. 7897 Honorable Robert C. Pate, Judge Presiding

Sitting: Rickhoff, Justice, Lopez, Justice, Duncan, Justice(concurring in the judgment)

Lopez, Justice

Rudolfo "Rudy" Zarate, et al. ("Zarate") appeals the trial court's judgment in favor of Sun Operating Limited, Inc., et al. and Sun Exploration and Production Company ("Sun Operating"). On appeal, Zarate complains that the trial court erred in denying his motion to set aside the void final judgment. Because we find that the judgment was not void, we dismiss this case for lack of jurisdiction.

Factual and Procedural Background

On June 26, 1987, Sun Operating filed an interpleader suit in connection with a tract of land called "North 700 Acres of Porcion No. 99" located in Starr County, Texas. During the course of litigation, on February 21, 1991, the trial court appointed a Master in Chancery to determine ownership of the mineral and royalty interests of the land in question. The Master in Chancery's final report was approved and adopted by Judge Ricardo H. Garcia on February 2, 1995.

On December 8, 1998, Judge Garcia asked Judge Alex W. Gabert to preside over the hearing of the final judgment of the Master in Chancery's final report which allowed the payment of royalties. Judge Gabert advised the parties that he had been appointed to preside over the hearing and that he had acted as a legal advisor to the receiver in the case, but had not made a physical appearance in the case. Neither party objected to Judge Gabert presiding over the hearing. In the final judgment, Judge Gabert awarded ownership of the mineral and royalty interests in the land pursuant to the terms and findings of the Master in Chancery's final report.

On November 18, 1999, Zarate filed a motion for judgment nunc pro tunc to correct a clerical error in the final judgment. On December 22, 1999, Zarate filed a supplemental motion for judgment nunc pro tunc to include a claim that Judge Gabert's judgment was void because he was constitutionally disqualified and lacked jurisdiction to hear this case. On December 29, 1999, Sun Operating filed an opposition to Zarate's motion and a supplemental motion to set aside void judgment or alternatively for judgment nunc pro tunc asking the judge to deny Zarate's motion. On January 5, 2000, Judge Robert C. Pate held a hearing on Zarate's motion, and on February 24, 2000, Judge Pate denied Zarate's motion to set aside the judgment or alternatively for judgment nunc pro tunc.

Zarate filed his notice of appeal on March 24, 2000. On June 23, 2000, this court ordered Zarate to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. On July 3, 2000, Zarate responded to this court's show cause order and conceded that this court lacks jurisdiction on the denial of the motion for judgment nunc pro tunc. However, Zarate argued, that this court has jurisdiction to consider whether Judge Gabert was disqualified to preside over the hearing and enter the judgment of December 8, 1998 and to consider whether Judge Pate's denial of the motion to set aside the void judgment was in error. Accordingly, this court ordered that Sun Operating's motion to dismiss for lack of jurisdiction be carried with the case on appeal.

Discussion

On appeal, Zarate complains that Judge Pate erred in refusing to set aside Judge Gabert's final judgment signed on December 8, 1998 because Judge Gabert was disqualified to enter the judgment: 1) under article 5, section 11 of the Texas Constitution; 2) under Rule 18b(1)(a) of the Texas Rules of Civil Procedure; and 3) because he had been counsel of record in the case. In response, Sun Operating argues that this court has no jurisdiction over this appeal and can take no action other than dismiss it, and that Judge Gabert was not constitutionally disqualified from signing the final judgment.

In considering the merits of Zarate's appeal, we need to determine whether Texas law gives this court jurisdiction over Zarate's motion to set aside the December 8, 1998 final judgment. In order to perfect an appeal, the appellant must file the notice of appeal by the deadlines set out in Rule 26.1 of the Texas Rules of Appellate Procedure. Rule 26.1 provides that all appellate timetables begin with the date the trial court signed the judgment or appealable order. See Tex. R. App. P. 26.1; Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995). The deadline for filing a notice of appeal depends on the type of case the appellant is appealing and the type of post-trial motions the parties have filed. If no party timely filed a motion for new trial, a motion to modify the judgment, a motion to reinstate, or a request for findings of fact and conclusions of law, the appellant must file a notice of appeal within 30 days of the date the trial court signed the judgment. See Tex. R. App. P. 26.1; Tex. R. Civ. P. 329b. The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within 30 days after the judgment is signed. See Tex. R. Civ. P. 329b(d).

In the instant case, the final judgment was signed on December 8, 1998, which began the running of the appellate deadlines. See Tex. R. Civ. P. 306a; In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997). Because Zarate did not file a motion for new trial or any other motion that extended the appellate timetable within 30 days of the trial court signing the judgment, the judgment became final and the trial court's plenary jurisdiction expired on January 7, 1999. See Tex. R. Civ. P. 329b.

Sun Operating contends that a bill of review is the exclusive remedy for setting aside a judgment when the plenary power of a court has expired. See Tex. R. Civ. P. 329b(f) (providing that on expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law); Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985); McEwen v. Harrison, 162 Tex. 125, 131, 345 S.W.2d 706, 710 (1961). Sun Operating argues that this rule must be followed even when the challenged judgment is void. See Middleton, 689 S.W.2d at 213 (finding it unnecessary to decide whether a consent judgment was void or merely voidable because in either instance, a bill of review is the exclusive remedy since the time for an appeal from the consent judgment has expired).

Sun Operating relies on McEwen v. Harrison, 162 Tex. 125, 131, 345 S.W.2d 706, 710 (1961). In McEwen, the Texas Supreme Court construed the provision of Rule 329b(f) to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case to which the court had jurisdictional power to render it. See McEwen, 345 S.W.2d at 710. Sun Operating maintains that the Supreme Court assumed in McEwen that the default judgment was void, but held that the order vacating the default judgment was unauthorized and void because the district court had jurisdictional power when it entered the default judgment, and the motion to vacate was filed after the court lost jurisdiction and did not qualify as a bill of review as required by Rule 329b. Similarly, Sun Operating argues that Zarate's attempt in this case to modify, correct, or declare void the December 8, 1998 final judgment by filing a motion to set it aside was improper. According to Sun Operating, regardless of whether Zarate was correct in its contention that the December 8th judgment could not be signed by Judge Gabert, neither the district court nor this court has any jurisdiction over this proceeding.

However, Zarate contends that the December 8, 1998 judgment was void, and not only can a void judgment be attacked by a bill of review after a trial court's plenary power has expired, but a void judgment can be collaterally attacked. See Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.--San Antonio 1995, writ denied); Tidwell v. Tidwell, 604 S.W.2d 540, 542 (Tex. Civ. App.-- Texarkana 1980, no writ) (finding that a void judgment may be collaterally attacked by a suit to set aside the judgment after it has become final if such void judgment becomes material). We agree. A collateral attack is any proceeding to avoid the effect of a judgment which does not meet all the requirements of a valid direct attack. See Glunz, 908 S.W.2d at 255.¹ There is neither a set procedure for a collateral attack nor a statute of limitations. See Glunz, 908 S.W.2d at 255; Davis v. Boone, 786 S.W.2d 85, 87 (Tex. App.--San Antonio 1990, no writ). Collateral attacks may be only used to set aside a judgment which is void, or which involved fundamental error. See Glunz, 908 S.W.2d at 255. Fundamental error for this purpose means cases where the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas. See id. The cases distinguish between judgments which are void, and therefore may be set aside by a collateral attack, and those which are voidable and must be attacked by a valid direct attack. See id. A judgment is void if it is shown that the court lacked jurisdiction 1) over a party or the property; 2) over the subject matter; 3) to enter a particular judgment; or 4) to act as a court. See id.

Accordingly, we must determine whether the December 8, 1998 judgment was void before we can determine whether we have...