James Warren Bright v. John Charles Spurlock and TDCJ Inmate Trust Fund

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________ NO. 09-08-00384-CV ____________________

JAMES WARREN BRIGHT, Appellant

V.

JOHN CHARLES SPURLOCK AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE INMATE TRUST FUND, Appellees

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On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV21,514

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MEMORANDUM OPINION

James Warren Bright, a pro se prison litigant, appeals from an order entered on July 20, 2008, that enforces a writ of garnishment against the Texas Department of Criminal Justice Inmate Trust Fund ("TDCJ") and Bright's inmate trust account. We affirm.

In his brief, Bright advances two issues. In issue one, Bright asserts that John Charles Spurlock, also a pro se prison litigant, failed to properly serve him with the writ of garnishment. In issue two, relying on language in an earlier order dated January 10, 2008 ("January order"), Bright contends that the trial court lacked jurisdiction to enter the July 20, 2008 order ("July order") because its January order had dismissed Spurlock's suit.

To resolve the issues Bright raises on appeal, we first address the effect of the trial court's January order. The January order was entered following a hearing on Spurlock's Motion to Show Cause, wherein he suggested that a TDCJ employee be held in contempt for refusing to turn over the funds it held in Bright's inmate trust account. The January order reflects that the trial court declined Spurlock's request to hold the TDCJ employee in contempt and it also declined taxing TDCJ with the full amount of Spurlock's May 5, 2004 default judgment ⁽¹⁾ that Spurlock had previously obtained against Bright. The January order also provides that "TDCJ has notice of the judgment in question and will act accordingly[,]" and then recites, "The court denies all relief not expressly granted in this judgment. This Order dismisses all claims and parties to this suit and shall operate as a final judgment in this action."

By stating that the order operated as a final judgment, and by ordering the TDCJ to "act accordingly[,]" the trial court effectively resolved any disputes between the parties to the garnishment proceeding. Therefore, it appears that the trial court intended its order to dispose of all parties and all claims and to operate as a final appealable judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001) (holding that where a conventional trial on the merits has not transpired, an order or judgment is final for purposes of appeal if, after we review the record if necessary, the order or judgment actually disposes of every pending claim and party or if it clearly and unequivocally states that it finally disposes of all claims and parties); see also LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 391 (Tex. 1989) (holding that a hearing that is dispositive of a case is effectively a trial setting). In view of the language in the order, and its effect on the garnishment proceeding, we conclude that the trial court's January order was final and appealable.

Bright failed to timely perfect his appeal from the January order that operated as a final judgment. ⁽²⁾ See Tex. R. App. P. 26.1. Therefore, at the time the trial court entered the July order, its plenary power to exercise jurisdiction over the case had expired. See Tex. R. Civ. P. 329b. However, the expiration of the court's plenary power does not necessarily mean that we have no jurisdiction over Bright's appeal from the trial court's July order. With respect to the July order, it clarifies that the dismissal language in the trial court's January order dismissed only Spurlock's show cause motion; nevertheless, the July order also employs language that appears intended by the court to allow Spurlock to enforce the garnishment judgment against TDCJ.

A trial court maintains the inherent power to "cause its judgments and decrees to be carried into execution" even after it loses plenary power over its judgment. Tex. R. Civ. P. 308, 329b; Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982). We construe the July order as being both a judgment nunc pro tunc, to the extent that it clarified the trial court's intent to dismiss Spurlock's show cause motion, and as an order to enforce the judgment the trial court had rendered in January. See Tex. R. Civ. P. 308, 316, 329b(f). In Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986), the Texas Supreme Court held that a trial court may, at any time in a judgment nunc pro tunc, correct a clerical error made in the reduction of the judgment to writing, to correctly reflect the judgment actually rendered. ⁽³⁾ To the extent the order acts as a mandatory injunction and enforces the prior judgment to require affirmative action by TDCJ, we have jurisdiction over this appeal. See generally Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 740 (Tex. 1991) (upholding appealability of orders that function as mandatory injunctions), abrogated on other grounds, In re Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004).

Although we have jurisdiction to consider Bright's appeal, his first issue, which asserts he was not properly served with the writ of garnishment, is actually an attempt to collaterally attack the validity of the trial court's January final judgment. Generally, collateral attacks may only be used to set aside a void judgment or one that involves fundamental error. Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 620-21 (Tex. App.-San Antonio 2001, pet. denied). 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. Id. at 621; see also Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). Fundamental error exists "in those rare instances in which 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." Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982).

Bright argues that Spurlock never served him with the writ of garnishment as required by the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 663a. But, a judgment obtained with service that is alleged to be defective is voidable, not void. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-11 (1961); see also Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985). The exclusive manner to attack a voidable judgment is through a bill of review. Tex. R. Civ. P. 329b(f) ("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[.]"); see also Middleton, 689 S.W.2d at 213; McEwen, 345 S.W.2d at 710. Having failed to file an appeal from the January final judgment, Bright cannot now collaterally attack a voidable judgment based on the argument that he was never properly served. See McEwen, 345 S.W.2d at 711. We overrule Bright's first issue.

In his second issue, Bright contends that the trial court lacked jurisdiction to enter the July order because the court's January order had already dismissed the garnishment proceeding. As we have explained, the July order clarified that its earlier dismissal operated as to Spurlock's show cause motion only. The hearing conducted on the motion clearly reflects the trial court's intent to dismiss only Spurlock's motion; thus, the trial court's July order, to the extent it clarified the scope of claims that were being dismissed, operated as a judgment nunc pro tunc. See Escobar, 711 S.W.2d at 231; Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976). Because the trial court had jurisdiction to correct clerical errors, the trial court's July order is not void. See Tex. R. Civ. P. 329b(f), 316. We overrule Bright's second issue and affirm the trial court's July order.

AFFIRMED.

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HOLLIS HORTON

Justice

Submitted on August 19, 2009

Opinion Delivered October 22, 2009

Before Gaultney, Kreger, and Horton, JJ.

1. In a separate appeal, Bright attempted to appeal the default judgment. We dismissed the appeal for lack of jurisdiction because Bright did not timely file a notice of appeal. See Bright v. Spurlock, No. 09-08-383 CV, 2008 Tex. App. LEXIS 8699, at *1 (Tex. App.-Beaumont Nov. 20, 2008, no pet.).

2. Despite the potential questions surrounding the interpretation of the trial court's January order, it is apparent that Bright understood the order to be a final judgment as evidenced by Bright's filing of a motion to abate the enforcement of the judgment for at least 180 days following his release from confinement.

3. A judgment is "rendered" when the trial court announces its decision either orally in open court or by memorandum filed with the clerk. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976); Delaup v. Delaup, 917 S.W.2d 411, 413 (Tex. App.-Houston [14th Dist.] 1996, no writ). The trial court orally announced its judgment following the hearing; it stated that as to "the garnishment issue, [TDCJ is] under notice that it has been issued of the Court; and the clerk's office will send [TDCJ] a copy of the [default] judgment." The trial court further stated, "The Clerk, the District Clerk here in Polk County, is going to send to [TDCJ] a copy of the [default] judgment and garnishment order; and [TDCJ] will from this time forward, whatever [TDCJ] can legally, [TDCJ] will garnish and forward to you."