Court of Appeals of Texas,
Houston (1st Dist.).
Thomas E. FELDMAN, Appellant,
v.
NATIONSBANK OF TEXAS, N.A., Appellee.
No. 01-94-01018-CV.
|
June 29, 1995.
Justices HEDGES and ANDELL also sitting.
OLIVER-PARROTT, Chief Justice.
OPINION
*1 This appeal raises two issues. The first issue is whether a trial court has the power to render a judgment void just by writing “void” on the face of the judgment. The second issue is whether a trial court abuses its discretion when it strikes a defendant’s pleadings and renders a default judgment based on a defendant’s failure to attend a pretrial conference or appear for trial. We affirm.
Procedural history
The appellee, NationsBank of Texas, N.A., filed suit against the appellant, Thomas E. Feldman, to recover a deficiency after NationsBank’s foreclosure and sale of a motor vehicle. Feldman filed a counterclaim, alleging that the foreclosure sale was improper, and alleging violations of the Federal Equal Credit Opportunity Act and the Federal Fair Debt Collection Practices Act.
On December 7, 1993, the trial court signed a docket control order setting out the date of the pretrial conference (February 25, 1994) and the date of trial (February 28, 1994). The docket control order required the parties to submit a pretrial order or pretrial statement at the time of the pretrial conference and stated in bold print, “ Failure to submit a timely pre-trial order pursuant to this order will result in the imposition of sanctions. ” The record reflects that Feldman received a copy of the docket control order on December 13, 1993.
On January 3, 1994, the trial court issued an order of mediation. The order required the parties to contact the appointed mediator within five days, encouraged the parties to agree on a mediation date within the next 30 days, and further stated, “In any event, mediation shall occur within 150 days from the date of this Order.” The trial judge made the following notation on the mediation order: “Note/ Case is set for trial 2-28-94.”
On January 12, 1994, Feldman filed an objection to the referral for mediation. The motion was never ruled upon, but the fact that the motion was filed shows that Feldman received a copy of the mediation order. On February 9, 1994, Feldman filed a motion for consolidation and class certification, and set the motion for a hearing on March 11, 1994. The trial judge signed the hearing notice.
On February 25, the case was called for the pretrial conference. Feldman’s attorney failed to appear at the conference, and on NationBank’s motion, the trial court struck Feldman’s pleadings. On February 28, the case was called for trial. Feldman again failed to appear. After examining NationBank’s evidence and hearing the arguments of Nationbank’s counsel, the trial court rendered judgment for NationsBank.
Later the same day, the trial judge made a notation on the face of the judgment indicating that the judgment was “voided.” The next day, on March 1, 1994, the trial court made a notation that the judgment “originally dated 2-28-94 is hereby reinstated.” Feldman filed two motions for new trial, both of which were denied.
First point of error
Relying on Cook v. Cameron, 733 S.W.2d 137 (Tex. 1987), Browning v. Placke, 698 S.W.2d 362 (Tex. 1985), and Easterline v. Bean, 49 S.W.2d 427 (Tex. 1932), Feldman contends that the trial judge’s notation on February 28 voided the judgment, and therefore the trial court lacked the power to revive the judgment on March 1 without giving notice and a hearing, if at all. Feldman also argues that when the trial court voided the judgment, it lost jurisdiction over the parties.
*2 While we agree with Feldman that a void judgment is “not susceptible of ratification or confirmation,” Easterline, 49 S.W.2d at 429, we cannot agree that the trial court in this case rendered the judgment void simply by writing “void” on its face. The cases relied upon by Feldman stand for the proposition that a judgment is void only when it is apparent that the court rendering judgment “had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.” Cook, 733 S.W.2d at 140; Placke, 698 S.W.2d at 363. All errors other than jurisdictional errors render the judgment merely voidable, not void. Placke, 698 S.W.2d at 363. In other words, the trial judge’s intent, by itself, is not sufficient to render a judgment void. Rather, whether a judgment is void is a legal determination that depends on a lack of jurisdiction or capacity. Id.
In this case, neither of the parties have pointed out any jurisdictional defects below, and our review of the record does not reflect (or even suggest) that the trial court did not have subject matter or personal jurisdiction, or capacity to render a judgment. Thus, we believe that when the trial judge wrote “voided” on the judgment, she merely “vacated” the judgment.
The Texas Rules of Civil Procedure provide that the trial court “has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.” Tex. R. Civ. P. 329b(d). The “plenary power” referred to in rule 329b includes the power to reinstate a previously vacated judgment. Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978). We overrule point of error one.
Second point of error
Feldman next argues that “the trial court erred in imposing the sanction of striking the pleadings of appellant because no notice of hearing was given prior to the court’s taking that action.” We note as an initial matter that this point of error, even if proven, would not entitle Feldman to a reversal, because the fact that the trial court struck his pleadings became irrelevant when Feldman failed to appear for trial. The default judgment was rendered on the basis of his failure to appear at trial, and the existence or nonexistence of pleadings was simply not relevant at that point. Thus, we need not address whether the trial court abused its discretion in striking Feldman’s pleadings. In the argument under this point of error, however, Feldman attacks the propriety of the trial court’s rendition of default judgment. We will therefore address the argument under the point of error. Tex. R. App. P. 74(p).
In reviewing a trial court’s rendition of a postanswer default judgment, we look to see whether the appellant established the elements outlined in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). The appellant must show that (1) his failure to appear at trial was not the result of conscious indifference, but was due to mistake or accident; (2) he has a meritorious defense; and (3) granting the motion would not cause delay or prejudice to the appellee. Id. at 126. However, if the appellant did not receive actual or constructive notice, he does not have to set up a meritorious defense to get a new trial. Peralta v. Heights Medical Ctr., 485 U.S. 80, 85, 108 S.Ct. 896, 900 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988). We will not disturb the trial court’s determination of these issues absent an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987).
*3 Feldman argues that he did not receive notice. However, the record shows that on December 13, 1993, trial counsel received notice that the case was set for trial on February 28, 1994. In addition, the January 3 mediation order contained the trial court’s handwritten notation reminding counsel that the case was set for trial on February 28. Both of these notices were received over 45 days before the date of trial, and therefore complied with Tex. R. Civ. P. 245.
Counsel for Feldman argues that the trial court’s mediation order, which stated that mediation would occur within 150 days, “created the appearance that the docket control order had been superseded by the subsequent mediation order.” This argument is unpersuasive. The mediation order made no mention of moving the trial date, and in fact the trial judge actually wrote on the order that the trial was set for February 28. In addition, Feldman’s counsel never attempted to clarify whether the mediation order had changed the trial date. At the hearing on the motion for new trial, the trial court asked Feldman’s counsel, “Why didn’t you bother to come down here and ask the court for clarification?” Counsel’s response was, “I don’t know, Your Honor. I just assumed that the later order superseded the prior order.” Later in the hearing, the trial court pointed out the handwritten reminder on the mediation order. Feldman’s counsel replied, “I didn’t notice that.”
Under these circumstances, we hold the trial court was justified in concluding that Feldman had in fact received notice. Because Feldman received notice of the trial setting, he was required to set up a meritorious defense. See Lopez, 757 S.W.2d at 723 (defendant who did not receive proper notice was not required to prove meritorious defense in order to get a new trial). In his brief, however, Feldman’s argument is limited to whether he received notice; he does not assert a meritorious defense. Therefore, he has failed to establish one of the necessary elements of Craddock.
Because we hold that the trial court did not abuse its discretion in granting the default judgment, we overrule Feldman’s second point of error.
We affirm the judgment of the trial court.