Dismissed and Memorandum Opinion filed =
November=20
15, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00523-CV
____________
BARNEY=20
L. McCOY, Appellant
V.
NORTH=20
FOREST INDEPENDENT SCHOOL DISTRICT
and JANICE JACKSON, =
Appellees
On Appeal from the =
County=20
Civil Court at Law No. 3
Harris=20
County, Texas
Trial Court Cause =
No. 720325
M E M O R=20
A N D U M O P I N I O N
Barney L. McCoy =
attempts to=20
appeal from an order signed March 20, 2007, denying his motion to=20
reinstate the underlying case, in which an order of non-suit was =
signed=20
May 24, 2001. McCoy filed a motion for rehearing of the =
denial of=20
his motion to reinstate, and he filed a notice of appeal on June =
13,=20
2007. We dismiss the appeal for want of=20
jurisdiction.
Janice Jackson filed =
suit=20
against the school district seeking judicial review of a final =
decision of=20
the Texas Workers=3D Compensation =
Commission. =20
McCoy was Jackson=3Ds attorney. =
Pursuant to a=20
settlement agreement, Jackson moved to non-suit the school =
district, and=20
the trial court signed an order of non-suit on May 24, 2001. =
On=20
March 1, 2007, McCoy, as a AParty in =
Interest,@ moved to reinstate =
the case,=20
claiming the school district refused to honor the settlement =
because the=20
underlying judgment is void. Section 410.258(a) of the Texas =
Labor=20
Code requires any proposed judgment or settlement to be mailed to =
the=20
executive director of the Workers=3D Compensation =
Commission at=20
least 30 days before the judgment is entered. It is =
undisputed that=20
the proposed judgment was not sent to the director in this =
case. =20
Section 410.258(f) provides that A[a] judgment entered =
or=20
settlement approved without complying with the requirements of =
this=20
section is void.@ Tex. Lab. Code Ann. =
' 410.258(f). =
Because it appeared =
from the=20
record that this court lacks jurisdiction to consider an appeal =
from a=20
case in which a non-suit was signed in 2001, we notified the =
parties of=20
our intention to dismiss the appeal for want of jurisdiction =
unless McCoy=20
filed a response demonstrating both our jurisdiction over this =
appeal and=20
his standing to bring the appeal as an AInterested =
Party.@ See =
Tex. R. App. P. =
42.3(a). =20
McCoy=3Ds response fails to =
demonstrate=20
that this court has jurisdiction over the appeal.
As to his standing to =
bring=20
this appeal, McCoy asserts that Jackson=3Ds current attorney =
gave his=20
permission, on Jackson=3Ds behalf, for him to =
pursue=20
having the trial court set aside its void judgment. McCoy =
was not a=20
party to the suit and does not have standing to pursue this =
appeal. =20
See Gore v. Peck, 191 S.W.3d 927, 929 (Tex. =
App.CDallas 2006, no =
pet.);=20
Johnston v. Crook, 93 S.W.3d 262, 268-69 (Tex. =
App.CHouston [1st Dist.] =
2002, pet.=20
denied).
On the jurisdictional =
question,=20
McCoy cites to Metropolitan Transit Authority v. =
Jackson,=20
for the proposition a trial court may set aside its void =
judgment at=20
any time. 212 S.W.3d 797, 802 (Tex. App.CHouston [1st Dist.] =
2006, pet.=20
denied). We respectfully disagree with our sister =
court. The=20
Texas Supreme Court explicitly disapproved of the proposition that =
Aif a judgment =
rendered by a=20
trial court is void it may be set aside by that court at any=20
time.@ Middleton v. =
Murff, 689=20
S.W.2d 212, 213 (Tex. 1985). After the time has passed to =
timely=20
file a motion for new trial or regular appeal, the exclusive means =
by=20
which parties can challenge a final judgment based on an =
allegation that=20
it is void are by filing a writ of error (now restricted appeal) =
or by=20
filing a bill of review. McEwen v. Harrison, 345 =
S.W.2d 706,=20
709‑11 (Tex. 1961); Skadden v. Alfonso, 217 =
S.W.3d 611, 619=20
(Tex. App.CHouston [14 Dist.] =
2006, pet.=20
filed).
In its response, the =
school=20
district agrees that the May 24, 2001, judgment is void for =
failure to=20
comply with section 410.258 of the Labor Code. It contends, =
however,=20
that the notice requirement in the Labor Code is a statutory =
prerequisite=20
and failure to comply did not deprive the trial court of=20
jurisdiction. See Dubai Pet. Co. v. Kazi, 12 S.W.3d =
71, 71=20
(Tex. 2000). Even a void judgment can become final for the =
purposes=20
of appeal. See Newsom v. Ballinger I.S.D., 213 S.W.3d =
375,=20
380 (Tex. App.CAustin 2006, no =
pet.); =20
In re Vlasak, 141 S.W.3d 233, 238 (Tex. App.CSan Antonio 2004, =
orig.=20
proceeding).
The May 24, 2001, =
judgment is=20
final. McCoy=3Ds motion to reinstate =
was=20
untimley. The trial court=3Ds order denying=20
McCoy=3Ds untimely motion to =
reinstate=20
the case is not a separately appealable order from which the =
appellate=20
timetable is calculated. See Weik v. Second Baptist =
Church,=20
988 S.W.2d 437, 438 (Tex. App.CHouston [1st Dist.] =
1999, pet.=20
denied) (holding that deadline for perfecting appeal runs from =
date of=20
dismissal order, not from date of trial court=3Ds ruling on motion to =
reinstate); Overka v. Bauri, No. =
14‑06‑00083‑CV, 2006 WL 2074688,=20
at *1 (Tex. App.CHouston [14 Dist.] =
July 27,=20
2006, no pet.) (mem. op.) (order denying motion for new trial is =
not=20
appealable). Therefore, the notice of appeal was filed too =
late to=20
appeal the judgment in this case.
Accordingly, the =
appeal is=20
ordered dismissed.
PER CURIAM
Judgment rendered and Memorandum Opinion =
filed=20
November 15, 2007.
Panel consists of Chief Justice Hedges =
and=20
Justices Anderson and=20
Seymore. |