State Office of Risk Management v. Maria L. Berdan ( 2011 )

NUMBER 13-09-00602-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
STATE OFFICE OF RISK MANAGEMENT, Appellant,
v.
MARIA L. BERDAN, Appellee.
On Appeal from the 36th District Court
of Bee County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
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
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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
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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
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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 397, 903
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We observe that the bill analysis for section 410.258 of the labor code provides that the statute
"prevents the use of settlement agreements, and judgments based on default or on an agreement of the
parties, to overturn Appeals Panel decisions." See House Comm. on Bus. & Indus. Bill Analysis, Tex.
H.B. 3137, 75th Leg., R.S. (1997).
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(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 has not been proposed or ―made‖ by the
parties. Nor does the statute provide a procedure for addressing such
situations or specify who is responsible for making the submission to the
Division if the ―party who initiated the proceeding‖ is not available or no
longer actively involved in the litigation.
....
We conclude that section 410.258 does not require the Division to receive
advance notice of every judgment in a proceeding initiated under
subchapter F or G of the labor code. Instead, we are of the opinion that
the statute requires the Division to receive notice of proposed judgments
―made by the parties‖—i.e. without judicial oversight or without fully
adversarial proceedings—and settlement agreements made by the
parties. This interpretation ensures that the trial court does not sign off on
a proposed judgment made or agreed to by the parties before the Division
has been notified and given an opportunity to intervene. Additionally, this
interpretation does not place impractical procedural burdens on the trial
court or permit a party who initiated the proceeding to avoid or delay entry
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of an adverse judgment by refusing to submit the judgment to the Division.
This interpretation also gives meaning to the phrase ―made by the parties‖
that is consistent with the purpose of the statute.
Brooks, 269 S.W.3d at 649-51. The Brooks court recognized, but refused to follow, the
El Paso Court of Appeals opinion in Insurance Company of the State of Pennsylvania v.
Martinez, which applied section 410.258 to a summary judgment and concluded that the
judgment was void. Martinez, 18 S.W.3d at 848; see Brewster, 249 S.W.3d at 12-14
(also applying section 410.258 to a summary judgment and concluding that the
judgment was void). Cf. Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 799-801
(Tex. App.–Houston [1st Dist.] 2006, pet. denied) (applying section 410.258 to an
agreed judgment).
After examining the legislative history of section 410.258, the plain language of
the statute, and the reasoning of the Austin and Fort Worth Courts of Appeals, we
conclude that section 410.258 does not apply to judgments rendered after fully
adversarial proceedings but instead applies to judgments proposed by agreement or by
default. This construction of the statute avoids the potentially wrongful manipulation of
the appellate process, whereby, for instance, a party receiving an adverse judgment,
such as SORM in the instant case, could sit on the judgment indefinitely, without paying
it and without submitting it to the workers’ compensation division, while waiting for a
more favorable development in the law.
In this case, the summary judgment and order granting reimbursement of
attorney’s fees were rendered after fully contested proceedings in open court.
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Accordingly, section 410.258 does not apply to the instant case, and the judgment at
issue was not rendered void by noncompliance with these statutory requirements. 2
IV. TIMELINESS OF NOTICE OF APPEAL
We next turn our attention to the timeliness of SORM’s notice of appeal. By
amended notice of appeal, SORM attempts to appeal: (1) the order granting
defendant’s motion for summary judgment signed on June 8, 2009; (2) the order
granting defendant’s motion for approval of reimbursed attorney’s fees signed on
August 18, 2009; (3) the order granting defendant’s motion to enforce the attorney’s fee
order, signed on October 23, 2009; (4) the order denying plaintiff’s untimely motion to
reconsider and, in the alternative, motion for new trial, signed on October 23, 2009; and
(5) the order denying plaintiff’s motion to stay, signed on November 3, 2009; and the
order denying plaintiff’s motion to enter judgment, signed on November 3, 2009.
Generally, appeals may be taken only from final judgments. Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Accordingly, a party may not appeal an
interlocutory order unless authorized by statute. Bally Total Fitness Corp. v. Jackson,
53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272
(Tex. 1992) (orig. proceeding); see Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex.
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We have concluded that the requirements of section 4102.58 do not apply to the judgment at
issue, and accordingly, the judgment was not rendered void by SORM’s failure to comply with these
requirements. However, even if we were to conclude otherwise, we disagree with SORM’s allegation that
a void order is not final for purposes of appeal. The finality of an order does not depend on its validity;
even void orders must be timely appealed. See Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985)
(explicitly disapproving the proposition that "if a judgment rendered by a trial court is void it may be set
aside by that court at any time"); see also McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (Tex.
1961); Brashear v. Vict. Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.–Dallas 2009, no
pet.); In re GMC, 296 S.W.3d 813, 822 (Tex. App.–Austin 2009, orig. proceeding); Newsom v. Ballinger
Indep. Sch. Dist., 213 S.W.3d 375, 380 (Tex. App.–Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233,
238 (Tex. App.–San Antonio 2004, orig. proceeding); Kenseth v. Dallas County, 126 S.W.3d 584, 597
(Tex. App.–Dallas 2004, pet. denied).
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2007). If we lack jurisdiction, we must dismiss the attempted appeal. See Kilroy v.
Kilroy, 137 S.W.3d 780, 783 (Tex. App.–Houston [1st Dist.] 2004, no pet.).
A. SUMMARY JUDGMENT AND ATTORNEY’S FEE ORDER
SORM attempts to appeal the trial court’s rendition of summary judgment and its
order awarding attorney’s fees to Berdan. As stated previously, 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. The summary judgment was interlocutory and did not become final until August
18, 2009, when the trial court granted statutory reimbursement of attorney’s fees. See
Lehmann, 39 S.W.3d at 195. Appellant was required to file a motion for new trial within
thirty days, or by September 17. See TEX. R. CIV. P. 329b(a). An untimely filed motion
for new trial does not extend the deadline for appeal. See id.; see also TEX. R. APP. P.
26.1. Because the motion for new trial was untimely, appellant's notice of appeal was
also untimely. See TEX. R. APP. P. 26.1(a). Therefore, we are without jurisdiction to
consider the appeal of the summary judgment and the order granting statutory
reimbursement of attorney’s fees.
B. ORDER GRANTING MOTION TO ENFORCE COURT ORDER
SORM further attempts to appeal the trial court’s order of October 23, 2009,
granting Berdan’s motion to enforce Berdan’s award of attorney’s fees. Generally, an
order made for the purpose of carrying into effect an already-entered judgment is not a
final judgment or decree and cannot be appealed as such. See Wagner v. Warnasch,
156 Tex. 334, 295 S.W.2d 890, 893 (1956); see also TEX. CIV. PRAC. & REM. CODE ANN.
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§ 51.012 (Vernon 2008) (providing that final judgments of trial courts are appealable);
TEX. R. CIV. P. 301 (―Only one final judgment shall be rendered in any cause except
where it is otherwise specially provided by law.‖). The ―usual writs and orders to aid in
execution to collect a final money judgment are not, in general, appealable orders.‖
Schultz v. Fifth Judicial Dist. Court of Appeals of Dallas, 810 S.W.2d 738, 740 (Tex.
1991). If the order is not an appealable one, jurisdiction does not attach in the court of
appeals. Id. at 740 n.6. On the other hand, some post-judgment orders are appealable.
Id. at 740 (finding that a turnover order, which resolved property rights and acted ―in the
nature of a mandatory injunction,‖ was appealable). The order granting Berdan’s
motion to enforce the court order awarding Berdan attorney’s fees does not act in the
nature of a mandatory injunction, but is rather an order to aid in the execution of an
award of attorney’s fees. See Kennedy v. Hudnall, 249 S.W. 520, 523 (Tex. App.—
Texarkana 2008, no pet.) (stating that an order made for carrying into effect an already
entered judgment is not a final judgment and cannot be appealed; directing the court to
―look to the substance of the order to determine whether it is appealable‖). Accordingly,
the order is not appealable, and we lack jurisdiction to consider the appeal thereof.
C. MOTION TO RECONSIDER AND MOTION FOR NEW TRIAL
SORM further seeks to appeal the trial court’s ―Order Denying Plaintiff’s . . .
Untimely Motion to Reconsider and Motion for New Trial.‖ The order denying SORM’s
motion to reconsider and motion for new trial was not independently appealable so as to
start a new timetable for perfecting the appeal. See, e.g., Digges v. Knowledge
Alliance, Inc., 176 S.W.3d 463, 464 (Tex. App.–Houston [1st Dist.] 2004, no pet.)
(concluding that a ruling on a motion to reconsider an order granting a special
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appearance was not independently appealable); Denton County v. Huther, 43 S.W.3d
665, 667 (Tex. App.–Fort Worth 2001, no pet.) (holding that an order denying a motion
to reconsider and renewed plea to the jurisdiction was not a distinct appealable
interlocutory order with separate timetable for appeal). Accordingly, we lack jurisdiction
to consider the appeal of this order.
D. MOTION TO STAY AND MOTION TO ENTER JUDGMENT
SORM also attempts to appeal orders denying its motion to stay and its motion to
enter judgment, both of which were signed on November 3, 2009. We note that the
reporter’s record before the Court on these motions states that the parties stipulated
that the underlying case was stayed. See In re Kellogg Brown & Root, Inc., 166 S.W.3d
732, 737 (Tex. 2005) (―A case becomes moot if a controversy ceases to exist between
the parties at any stage of the legal proceedings . . .‖); State Bar of Tex. v. Gomez, 891
S.W.2d 243, 245 (Tex. 1994) (stating that, for a controversy to be justiciable, there must
be a real controversy between the parties that will be actually resolved by the judicial
relief sought). In terms of SORM’s appeal of the trial court’s denial of SORM’s motion
for entry of judgment, SORM requested entry of a ―new‖ final judgment, which is largely,
but not entirely, identical to the judgment entered on August 18, 2009.
The trial court’s plenary power over this matter expired thirty days after entry of
the August 18, 2009 judgment. See TEX. R. CIV. P. 329b(d). We are without jurisdiction
to grant relief or review the trial court's actions after the expiration of its plenary power;
consequently, we lack jurisdiction over the appeals of these orders. See Nabejas v.
Tex. Dep't of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App.–Corpus Christi 1998, no
pet.) (concluding that appellate court lacked jurisdiction over cause because appellate
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jurisdiction ―extends no further than that of the court from which the appeal is taken‖),
overruled, in part, on other grounds by City of Elsa v. M.A.L., 226 S.W.3d 390, 392
(Tex. 2007); P.I.A. of Fort Worth, Inc. v. Sullivan, 837 S.W.2d 844, 846 (Tex. App.–Fort
Worth 1992, orig. proceeding) (concluding that under the terms of rule 329b, the trial
court had no jurisdiction to seal the parties' divorce records over nine months after the
suit had been voluntarily dismissed and after he had lost his plenary power).
V. CONCLUSION
Having concluded that we lack jurisdiction over the matters subject to appeal
herein, we DISMISS the appeal for lack of jurisdiction.
___________________
Rogelio Valdez
Chief Justice
Delivered and filed the
3rd day of February, 2011.
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