Darryl Walker, Dependent Administrator of the Estate of Henry Brown v. Lucy Traylor ( 2011 )

Opinion issued May 5, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-01098-CV

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Darryl Walker, Dependent Administrator of the Estate of Henry Brown, Deceased, Appellant

V.

Lucy Traylor, Appellee

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Case No. 323,033

MEMORANDUM OPINION

Appellant Darryl Walker, dependent administrator of the estate of Henry Brown, appeals the trial court’s order denying his request to withdraw an earlier judgment and granting appellee Lucy Traylor’s motion to enforce the judgment and sanctions.  In four issues, Walker argues the trial court erred by denying his request to withdraw the earlier judgment and grant a new trial because (1) he did not receive appropriate notice of the trial setting from the probate clerk; (2) Traylor’s attorney was not authorized to serve notice of the trial setting on Walker; (3) Traylor was not entitled to an award of attorneys’ fees beyond the original amount requested; and (4) there was insufficient evidence to support the award of attorneys’ fees.  Traylor argues that this court lacks jurisdiction to consider this appeal.

We affirm.

Background

Henry Brown died in 2001. George Brown, his son, filed an application to determine heirship, alleging that Henry had died intestate. Traylor, a long-time friend of Henry and his wife, filed an opposition to George’s application, seeking to probate a copy of Henry’s March 13, 1999 will.  George counter-sued Traylor and her daughter, the notary public who had drafted the March 13, 1999 will.

The case went to trial and a jury found, among other things, the will to be valid and effective. Based on the jury’s findings, the trial court admitted the will copy to probate, appointed Traylor to be dependent administratrix, and awarded Traylor $20,000 in attorneys’ fees.

George appealed.[1]  In that opinion, we affirmed the judgment of the trial court except for the award of attorneys’ fees to Traylor, which we remanded for a new trial on that ground alone.[2]

At some point before the new trial, Traylor stepped down from her position as administratrix due to health reasons.  Walker was appointed as administrator in her place.

A trial on the matter of attorneys’ fees was held on April 26, 2007.  Traylor and George were present, but Walker was not.  On May 14, 2007, the trial court rendered a judgment awarding Traylor $33,470.67 in attorneys’ fees to be paid from the assets of the estate.  The judgment recites that Walker was served with notice of the trial through his attorney.

Over the next two years, Traylor’s attorney sent at least two requests for payment to Walker, who refused to pay.  In July 2009, Traylor’s attorney filed a motion to enforce the award of attorneys’ fees. In response, Walker sought—for the first time—for the court to withdraw its 2007 judgment and reset the trial due to Walker’s alleged lack of notice of the trial.  The trial court signed an order on August 31, 2009, finding that Walker had been properly served with notice of the trial.  The order awarded an additional $500 in attorneys’ fees as sanctions and ordered the entire amount owed be paid by September 15, 2009.

On September 8, 2009, Walker filed a notice of appeal, appealing from “the Trial Court’s May 14, 2007 judgment granting Lucy Traylor’s request for Attorney’s fees and the Trial Court’s Supplemental Order . . . signed by the judge on August 31, 2009.”

Jurisdiction

Traylor asserts that this Court lacks jurisdiction to consider this appeal because Walker did not file a notice of appeal within 30 days of the 2007 judgment.

An appellate court “has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court’s jurisdiction.”  Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).  “The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from.”  Tex. R. App. P. 25.1(b).  Except for circumstances not applicable in this appeal, a notice of appeal must be filed within 30 days after the judgment or appealable order becomes final.  See Tex. R. App. P. 26.1 (setting 30-day deadline for appeal); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (holding appellate court only has jurisdiction over final judgments except for mostly statutory exceptions).  Failure to file a notice of appeal within the applicable time period precludes the invocation of an appellate court’s jurisdiction.  Verburgt, 959 S.W.2d at 617. Accordingly, as long as Walker filed his notice of appeal within 30 days of a final judgment or order identified in the notice of appeal, we have jurisdiction to consider the appeal.

Walker filed a notice of appeal on September 8, 2009, appealing from “the Trial Court’s May 14, 2007 judgment granting Lucy Traylor’s request for Attorney’s fees and the Trial Court’s Supplemental Order . . . signed by the judge on August 31, 2009.” The August 31, 2009 order determined that Walker had been properly served with notice of the trial setting and enforced the award of attorneys’ fees from the May 14, 2007 judgment.

As it applies to this case, “[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.”  Act of May 23, 2005, 79th Leg., R.S., ch. 551, § 1, 2005 Tex. Gen. Laws 1476, 1476, repealed by Act of May 31, 2009, R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279 (former Probate Code section 5(g)).  “A probate order is the functional equivalent of a judgment when it finally disposes of a particular issue between parties.”  Ajudani v. Walker, 232 S.W.3d 219, 223 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  An order awarding attorneys’ fees is final for purposes of appeal.  Wittner v. Scanlan, 959 S.W.2d 640, 642 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

The judgment awarding attorneys’ fees was final when it was signed in 2007.  See id.  The order enforcing the award of attorneys’ fees disposed of all the issues relating to the 2007 judgment and did not raise any other issues that remain unresolved.  Accordingly, it was a final order and appealable.  See Ajudani, 232 S.W.3d at 223. Walker filed his notice of appeal, referencing the 2009 order, within 30 days after the 2009 order was signed. Because Walker’s notice of appeal constitutes “a bona fide attempt to invoke the appellate court’s jurisdiction,” we hold we have jurisdiction over this appeal.  Verburgt, 959 S.W.2d at 616.

Validity of 2007 Judgment

In his four issues on appeal, Walker argues the trial court erred by denying his request to withdraw the earlier judgment and grant a new trial because (1) he did not receive appropriate notice of the trial setting from the probate clerk; (2) Traylor’s attorney was not authorized to serve notice of the trial setting on Walker; (3) Traylor was not entitled to an award of attorneys’ fees beyond the original amount requested; and (4) there was insufficient evidence to support the award of attorneys’ fees.  Walker presented these grounds for challenging the validity of the 2007 judgment in response to Traylor’s motion to enforce the judgment. 

The judgment awarding attorneys’ fees was a final judgment.  See Ajudani, 232 S.W.3d at 223 (holding probate order finally disposing of particular issue between parties is final); Wittner, 959 S.W.2d at 642 (holding probate order awarding attorneys’ fees is final).  The probate court’s plenary power to vacate, modify, correct, or reform the judgment expired 30 days after it was signed.  Ajudani, 232 S.W.3d at 223 (citing Tex. R. Civ. P. 329b(d)).  Walker did not challenge the validity of the judgment within that time period, nor did he file an appeal.  See Tex. R. App. P. 26.1 (setting deadline for filing appeal).  Once the probate court’s plenary power expired, it lacked the authority to set aside the judgment.  Tex. R. Civ. P. 329b(f).

Once the trial court’s plenary power expires and the time to bring a regular appeal passes, a party’s options to challenge the validity of a judgment become more limited.  What options the party has depends on whether the party is challenging the validity of the judgment in a direct or collateral attack.  A direct attack is a proceeding brought to correct the former judgment and to secure rendition of a single, proper judgment.  Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973).  In contrast, “[a] collateral attack on a judgment is an effort to avoid its binding force in a proceeding, instituted not for the purpose of correcting, modifying, or vacating it, but in order to obtain specific relief against which the judgment stands as a bar.”  Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 549 (Tex. App.—Houston [1st Dist.] 1994, no writ).

In his response to Traylor’s motion to enforce, Walker asked the trial court to withdraw its 2007 judgment and grant a new trial.  He did not ask the trial court to simply declare the judgment unenforceable.  We hold that Walker’s challenge was a direct attack on the 2007 judgment.

In Middleton, the trial court rendered a “consent judgment” after receiving notice that certain parties no longer consented.  Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985).  The parties that withdrew their consent did not appeal the rendition of the judgment.  Id.  Instead, the parties later filed a motion to vacate the consent judgment, which the trial court denied.  Id.  The court of appeals affirmed holding that, because the judgment was not void, the parties were required to file a bill of review.  Id.  The Texas Supreme Court held that, even if the judgment was void, in order to set aside a judgment on a direct attack when the time for appeal has passed, the complaining party must bring the complaint in a bill of review. Id. 

Walker has brought a direct attack on the validity of the 2007 judgment.  He did not, however, bring it in a bill of review.  We overrule appellant’s four issues.[3]

Conclusion

We affirm the September 8, 2009 order of the trial court, constituting a final judgment for purposes of this appeal.

                                                                   Laura Carter Higley

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

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[1]           See Brown v. Traylor, 210 S.W.3d 648 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

[2]           Id. at 678.

[3]           Because we hold that Walker has not properly challenged the validity of the 2007 judgment, we express no opinion on whether the judgment is in fact invalid.