law-void-order | plenary power or plenary jurisdiction | void as against public policy | void because illegal |
temporary injunction void because no bond required and none posted | temporary injunction order lacking
date setting cause for trial is void |
A judgment is void where it is apparent that the court rendering the judgment had no jurisdiction over the
parties or no jurisdiction of the subject matter. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990).
VOID (not merely VOIDABLE) ORDERS AND JUDGMENTS - APPELLATE
DECISIONS
TRIAL COURT RETAINED PLENARY POWER BECAUSE DEFAULT JUDGMENT WAS NOT FINAL
In re Drake (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(per curiam)
(mandamus challenging order granting new trial denied; default judgment was only partial, did not dispose of
all claims in suit, thus there was no final judgment, unaddressed claims remained pending and court retained
plenary power to set aside the default judgment)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-01058-CV In Re John Drake
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland
Medina v. Benkiser (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(plenary jurisdiction)
(trial court did not have authority to modify judgment after appeal and add an award attorney's fees; prior
appeal was not interlocutory), modified judgment found void)
Our opinion and judgment in Medina I constituted the final resolution of the controversy between the parties,
and the trial court lacked plenary power to award attorney's fees to appellees. By affirming the trial court's
judgment, our judgment essentially adopted the judgment of the trial court dismissing the case for lack of
jurisdiction. Because the trial court did not award attorney's fees to the appellees in its judgment--and the
appellees did not raise this failure to award fees as an issue in Medina I--our opinion and judgment in Medina I
closed the door on the possibility of the appellees recovering their attorney's fees in this case.
We sustain appellants' first issue and hold that the trial court lacked plenary power to modify the judgment and
award appellees' attorney's fees.
VACATE TRIAL COUR JUDGMENT AND DISMISS CASE: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-00777-CV Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt and Kay
Fisher v. Tina Benkiser and The Republican Party of Texas
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Though the parties do not challenge the validity of the nunc pro tunc divorce decree, we will address this
issue as it is jurisdictional. See Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.-Houston [1st Dist.] 2005,
no pet.) (stating that a judgment nunc pro tunc correcting a judicial error after the trial court's plenary power
has expired is void) (citing Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973)); Waite v. Waite, 150 S.W.3d
797, 800 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (stating that appellate court has no jurisdiction
over void judgment; appellate court must simply declare such a judgment void and dismiss the appeal). A
court always has jurisdiction to determine its own jurisdiction. Houston Mun. Employees Pension Sys. v.
Ferrell, 248 S.W.3d 151, 158 (Tex. 2007). In Interest of MV, MV and EV (Tex.App.- Houston [14th Dist.] Sep.
1, 2009)(Yates) (child support arrearage based on nunc-pro-tunc judgment, amount of child support had not
been filled in on the original order) (effective date of nunc pro tunc judgment as to support amount) (clerical
error vs. judicial error, NPT order adding monthly amount to blank space on decree not deemed judicial error)
(void judgments and orders)
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00418-CV In the Interest of M.V, M.V. and E.V.
Appeal from 311th District Court of Harris County
Trial Court Judge: DOUGLAS C. WARNE
In Re Johnson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(per curiam denial of mandamus)
(mandamus challenge to allegedly void order improper, regular appeal from final judgment available)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00603-CV In Re R. Wayne Johnson
Appeal from 122nd District Court of Galveston County
Mandamus challenge to alleged void order not proper when regular appeal is available
A void judgment can become final for purposes of appeal. Newsom v. Ballinger Indep.
Sch. Dist., 213 S.W.3d 375, 379, 380 (Tex. App.- Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 237-38
(Tex. App.- San Antonio 2004, orig. proceeding). Each order "disposes of the entire case" and directs that “[p]
laintiff shall take nothing by this suit." Having disposed of all claims, the orders are final and thus are
appealable even if void. See In re Vlasak, 141 S.W.3d at 237-38 (holding court can render final judgment
even if it lacks personal jurisdiction - judgment is void if challenged, but no less final); Estate of Courvier, No.
04-07-00469-CV, 2007 WL 2935809, at *1 (Tex. App.- San Antonio Oct. 10, 2007, no pet.) (mem. op.)
(assuming, without deciding, trial court's judgment is void, appellant was required to file timely notice of
appeal). Therefore, we need not determine whether either order is void because relator has an adequate
remedy by appeal. See In re Hamel, 180 S.W.3d 226, 229 (Tex. App - San Antonio 2005, orig. proceeding)
(stating that mandamus relief is not available if the order complained of is appealable because appeal is
almost always adequate remedy).
Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we
deny relator's petition for writ of mandamus.
Divorce Decree Partially Void for Lack of Personal Jurisdiction over Nonresident Spouse
Here, the trial court's final divorce decree was void only in part. See Browning v. Prostok, 165 S.W.3d 336,
346 (Tex. 2005) ("A judgment is void only when it is apparent that the court rendering judgment 'had no
jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act.'" (quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (per
curiam))); Dosamantes v. Dosamantes, 500 S.W.2d 233, 236 (Tex. Civ. App.-Texarkana 1973, writ dism'd)
(explaining that a divorce action by a resident is directed to the resident's marital status, and hence, is quasi
in rem). The trial court had jurisdiction to grant a divorce to Quick, as a resident, even though it lacked
personal jurisdiction over Church, his nonresident spouse. See Dawson-Austin, 968 S.W.2d 319 (Tex. 1998).
We therefore modify the judgment to eliminate only those orders that exceed the trial court's jurisdiction.
Church v. Quick (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(Guzman)(restricted appeal, a nonresident
spouse)(Because the trial court lacked personal jurisdiction over the nonresident spouse, the court of appeals
modifies the judgment to eliminate all relief other than the divorce and affirms the judgment as modified.)
AFFIRMED AS MODIFIED: Opinion by Justice Guzman
Before Justices Anderson, Guzman and Boyce)
14-08-00131-CV Joyce Gail Church v. Kenneth Richard Quick
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York
Void vs. Voidable Order
Baqdounes v. Nazir (Tex.App.- Houston [1st Dist.] Jan. 29, 2009)(Hanks)(informal marriage, common law
marriage, collateral attack on prior divorce decree that omitted SAPCR re child of the marriage, but of another
man, void vs. voidable judgment)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-07-01102-CV Selene Lara Mateos Baqdounes v. Nazir Baqdounes
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York
Void Temporary Injunction Order - No Trial Date Set Therein
Navasota v. NationStar Mortgage, LLC (Tex.App.- Houston [1st Dist.] Jan. 9, 2009)(Alcala)
(temporary injunction void; no trial date included in temporary injunction order)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00915-CV City of Navasota v. NationStar Mortgage, LL
Appeal from 506th District Court of Grimes County
Order entered after Plenary Jurisdiction has expired, but see --> NPT exception
In re The Office of Attorney General of Texas (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (mandamus
granted) (order found void, entered after expiration of plenary jurisdiction,
appeal from associate judge to referring court)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Taft
Before Justices Taft, Jennings and Bland
01-08-00114-CV In re The Office of the Attorney General of Texas
Appeal from 308th District Court of Harris County Trial Court Judge: Hon. Georgia Dempster
In re Shoreline Partners LLC (Tex.App.- Houston [1st Dist.] Fab. 28. 2008)(Keyes)
(plenary jurisdiction, reinstatement order void)
GRANT PETITION FOR WRIT OF MANDAMUS:
Before Justices Taft, Keyes and Alcala
01-08-00013-CV In re Shoreline Partners, LLC, Prenits B. Tomlinson, Jr., Individually and Thomas E. Hardisty,
Individually--Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)
Trial Court should not have made ruling while motion to recuse was pending
Riga v. Commission for Lawyer Discipline (Tex.App.-Houston [1st Dist.] May 10, 2007)(Nuchia)
[recusal motion, order signed while motion pending found void, exception did not apply]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Keyes and Higley
01-06-00239-CV Peter J. Riga and Michael Easton v. Commission for Lawyer Discipline
Appeal from 151st District Court of Harris County (Judge Fowler)
Order entered in Violation of Automatic Bankruptcy Stay Void Not Merely Voidable
Houston Pipe Line Company, LP v. Bank of America, NA (Tex.App.- Houston [1st Dist.] Aug 24, 2006, no pet.)
(violation of bankruptcy stay, void order)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Hanks
01-03-01263-CV Houston Pipeline Company, LP v. Bank of America, N.A., As Administrative Agent, and as
Representative of the Wilmington Trust Company, Trustee of the Bammel Gas Trust
Appeal from 280th District Court of Harris County
Trial Court Judge: The Honorable Tony Lindsay
Void Judgments and Standing to Complain about Violations of the Automatic Bankruptcy
Stay The automatic stay "deprives state courts of jurisdiction over the debtor and his
property until the stay is lifted or modified." Baytown State Bank v. Nimmons, 904 S.W.2d 902, 905
(Tex. App.--Houston [1st Dist.] 1995, writ denied) (quoting Owen Elec. Supply, Inc. v. Brite Day Constr., Inc.,
821 S.W.2d 283, 287 (Tex. App.--Houston [1st Dist.] 1991, writ denied)). Consequently, "[a]n action taken in
violation of the automatic stay is void, not merely voidable." Continental Casing Corp. v. Samedan Oil Corp.,
751 S.W.2d 499, 501 (Tex. 1988); see also Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992) (order). A
void judgment results when, as here, the trial court had no jurisdiction over the parties or subject matter. State
ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1985). If the judgment is void because the trial court lacked
jurisdiction, we vacate the trial court's judgment and dismiss the case. Tex. R. App. P. 43.2(e); see also Juarez
v. Tex. Ass'n of Sporting Officials El Paso Chapter, 172 S.W.3d 274, 278 (Tex. App.--El Paso 2005, no pet. h.)
(holding that if trial court lacked jurisdiction, appellate court has jurisdiction only to set
judgment aside and dismiss cause) (citing Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887
S.W.2d 465, 468 (Tex. App.--Dallas 1994, writ denied)).
The Bank contends that although an action in violation of the automatic stay is void rather than voidable,
Houston Pipeline does not have standing to complain that the judgment is void because it is not a debtor. This
standing requirement, however, has its nexus with voidable, not void, judgments. See Philadelphia Life Ins.
Co. v. Estate of Fuel Oil Supply Terminaling, Inc. (In re Fuel Oil Supply & Terminaling, Inc.), 30 B.R. 360, 362
(N.D. Tex. 1983). (9) Thus, the question of whether a nondebtor can challenge a voidable judgment is not
jurisdictional. Because in Texas we recognize that a judgment entered in violation of the bankruptcy
stay is void for lack of jurisdiction, this is a fundamental error that can be recognized by the
appellate court, sua sponte, or raised for the first time on appeal by a party. See Saudi v. Brieven,
176 S.W.3d 108, 113 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Baytown State Bank, 904 S.W.2d at 905.
Therefore, we must address the issue of whether the automatic stay was violated to determine whether we
have authority to hear this appeal. See Waite v. Waite, 150 S.W.3d 791, 800 (Tex. App.--Houston [1st Dist.]
2004, pet. denied).
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