STATE OFFICE OF RISK MANAGEMENT v. Berdan
335 S.W.3d 421
| Tex. App. | 2011Background
- SORM appealed from a June 8, 2009 summary judgment in Berdan's favor and an August 18, 2009 order awarding Berdan statutory attorney's fees.
- SORM filed a September 30, 2009 motion for new trial and a October 30, 2009 notice of appeal.
- Clerk notified SORM on November 5, 2009 that the filings were untimely; SORM argued noncompliance with TEX. LAB. CODE § 410.258.
- SORM urged that noncompliance with § 410.258 rendered the proposed judgment void and thus made its appeal timely.
- The trial court proceedings were fully adversarial; the judgment was entered after contested proceedings in open court.
- The court ultimately dismissed the appeal for lack of jurisdiction, holding § 410.258 does not apply to adversarial judgments and the post-judgment orders were not appealable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from summary judgment and fee order | Berdan | Berdan | Untimely; dismissed for lack of jurisdiction |
| Applicability of § 410.258 to adversarial judgments | SORM | Berdan | Not applicable; judgment not void; timely appeal not established on this basis |
| Appealability of post-judgment orders | SORM | Berdan | Post-judgment orders not appealable; dismissal for lack of jurisdiction |
Key Cases Cited
- S. Ins. Co. v. Brewster, 249 S.W.3d 6 (Tex.App.-Houston [1st Dist.] 2007) (presumption of regularity in judgments; lack of controverting evidence)
- Bell v. Zurich Am. Ins. Co., 311 S.W.3d 507 (Tex.App.-Dallas 2010) (supplemental record; regularity of judgment)
- Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129 (Tex.App.-San Antonio 2005) (presumption of regularity; judgments silent on §410.258 not void)
- Casillas v. State Office of Risk Mgmt., 146 S.W.3d 735 (Tex.App.-El Paso 2004) (judgment not void where record silent on §410.258)
- Clewis v. Safeco Ins. Co., 287 S.W.3d 197 (Tex.App.-Fort Worth 2009) (§410.258 not applicable to adversarial judgments)
- Tex. Prop. & Cas. Ins. Guar. Assoc. v. Brooks, 269 S.W.3d 645 (Tex.App.-Austin 2008) (§410.258 applies to judgments made by the parties, not adversarial trials)
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001) (final judgments; timing for appeals)
- Wagner v. Warnasch, 295 S.W.2d 890 (Tex. 1956) (post-judgment orders generally not final judgments)