In the Interest of R.O.C., a child v.--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00658-CV

Ruby TRISTAN,

v.

Sonya Marie CASTILLO,

Appellee

and

No. 04-06-00041-CV

IN THE INTEREST OF R.O.C., a Child,

From the 285th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-12608

Honorable Barbara Nellermoe, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Sandee B. Marion, Justice

Phylis J. Speedlin, Justice (concur in judgment only)

Rebecca Simmons, Justice

Delivered and Filed: March 14, 2007

AFFIRMED

Procedurally, this appeal arises from the denial of a motion for new trial filed by Ruby Tristan, grandmother of R.O.C. following the entry of judgment in a bill of review proceeding that was initiated by the mother of R.O.C. The father of R.O.C., Juan Castillo, who was not made a party to the bill of review, also appeals the denial of Ruby Tristan's motion for new trial. Jimmy Tristan, Ruby Tristan's husband, does not appeal the judgment. As Ruby Tristan and Juan Castillo appeal the same order, we will dispose of them together.

Factual Background

Sonya and Juan Castillo are the biological parents and Ruby Tristan is the grandmother of minor child R.O.C. In August of 2002, a modification was granted to the grandparent access order of Jimmy and Ruby Tristan in Cause No. 2001-CI-10187. Thereafter, Ruby and Jimmy Tristan sought greater access, and in July of 2003, the trial court heard a motion to modify the parent-child relationship in the 2001 cause. The resulting order recites that Sonya was cited and did not appear, and that Juan waived issuance and service of citation by filing a signed waiver and did not attend the hearing. As a result of the hearing, Sonya was removed as managing conservator and named possessory conservator, and the Tristans were named as sole managing conservators. Juan was not granted any right of conservatorship.

In 2004, Sonya filed a bill of review, seeking to set aside the 2003 order. Although originally filed in the 2001 cause number, it was ultimately docketed under Cause No. 2004-CI-12608. Sonya served citation only on the Tristans. Juan was not named a party to the bill of review and consequently was not served with citation or given notice of the suit. On January 5, 2005, the Tristans and Sonya entered into a mediated settlement agreement which did not affect Juan's parental rights. The mediated settlement agreement was incorporated into an Agreed Order in a Suit Affecting the Parent-Child Relationship signed on July 21, 2005.

On August 9, 2005, Ruby Tristan moved for a new trial, alleging the July 2005 order did not accurately reflect the agreed settlement; and alternately, that the judgment was void or voidable because a necessary party, namely R.O.C.'s father Juan Castillo, was not before the court. The trial court denied the motion and Ruby Tristan appealed. On January 20, 2006, Juan also appealed the trial court's denial of Tristan's motion for new trial through a restricted appeal, alleging lack of jurisdiction. We affirm the judgment of the trial court because Ruby Tristan waived the right to complain of the lack of Juan's joinder and this court lacks jurisdiction to hear Juan's restricted appeal.

Juan's Restricted Appeal

A. Elements

A party may bring a restricted appeal if the party: (1) filed notice of the restricted appeal within six months after the judgment was signed; (2) was a party to the underlying lawsuit; (3) did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). These requirements are jurisdictional and must be met. Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.--Fort Worth 2001, pet. denied).

B. Analysis

Before we can consider the merits of Juan's issues, we must determine whether he is entitled to a restricted appeal since he was not a party to the underlying suit within the meaning of a restricted appeal. See Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex. 1965). In Gunn, the biological father of a child was neither named a party to an adoption proceeding nor issued citation. The Supreme Court denied his writ of error (1) because he was not a party to the proceedings below, and the exception of virtual representation did not apply. Gunn, 391 S.W.2d at 725-26. An appellant is deemed a party under virtual representation when: (1) he is bound by the judgment; (2) his privity of estate, title, or interest appears from the record; and (3) there is an identity of interest between the appellant and a party to the judgment. Motor Vehicle Bd. of the Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 110 (Tex. 1999) (per curiam). Like Gunn, Juan was not named a party nor issued citation, was not virtually represented, and therefore, was not a party to the bill of review proceedings below. Thus, this court lacks jurisdiction to hear this restricted appeal.

Ruby Tristan's Appeal

Although Ruby Tristan consented and agreed to both the form and substance of the order dated July 21, 2005, she now complains that the order is void or voidable and therefore, the trial judge erred in not granting her motion for new trial. (2)

A. Standard of review

We review a trial court's ruling on a motion for new trial under an abuse of discretion standard of review. Cypress-Fairbanks Indep. Sch. Dist. v. Glenn W. Loggins, Inc., 115 S.W.3d 67, 73 (Tex. App.--San Antonio 2003, pet. denied). A court abuses its discretion if it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

B. Jurisdiction of the Trial Court

Although the 2005 order was not based on a trial on the merits, it was an agreed order, and such orders are final and have a binding force like that of a final judgment rendered at the conclusion of an adversarial proceeding. In re Office of Attorney Gen. of Tex., 193 S.W.3d 690, 692 (Tex. App.--Beaumont 2006, no pet.). Generally, a party may not "attack a judgment to which he has agreed, absent allegation and proof of fraud, collusion or misrepresentation." Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.--San Antonio 1989, no writ). Yet we must address Ruby Tristan's jurisdictional claim that Juan Castillo, R.O.C.'s father, was an indispensable party to the bill of review action such that his absence deprived the trial court of jurisdiction to enter the agreed order. (3)

The 1970 amendment to Rule 39 of the Texas Rules of Civil Procedure "initiated an entirely new method for resolving the question of joinder of parties." Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex. 1974). Amended Rule 39 "changed our approach in dealing with a defect of parties from one which emphasized jurisdiction to an approach based solely upon pragmatic considerations." Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982) (per curiam). Reflecting that "today's concern is less that of the jurisdiction of a court to proceed and is more a question of whether the court ought to proceed with those who are present," the Supreme Court noted one of the practical considerations occurs when the case is already tried as to the parties present and no objection was made regarding any nonjoinder. Cooper, 513 S.W.2d at 204. (4) "[I]t would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined." Id. Thus, the previous approach regarding indispensable parties has been abandoned. "A failure to join 'indispensable' parties does not render a judgment void" now. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per curiam) (citing Cooper, 513 S.W.2d at 204). Although Juan Castillo was certainly a proper party to the bill of review action (5), the failure to join Juan Castillo did not deprive the trial court of jurisdiction and render the agreed order void.

C. Preservation of Error

Ruby Tristan appears to argue that even though she did not object to the nonjoinder of Juan Castillo before judgment was entered, she may raise that point on appeal. Her complaint, however, was waived by failing to raise the issue timely. Tex. R. App. P. 33.1. See Gomez v. Kestermeier, 924 S.W.2d 210, 212 (Tex. App.--Eastland 1996, writ denied). In Gomez, the plaintiff attempted to set aside a conveyance of property a debtor husband and his non-debtor wife made to their children. A jury found the husband's conveyance to his children was fraudulent. The children-appellants argued that the trial court erred in rendering judgment without first joining the husband and wife as grantors of the property in question. The court held that the appellants "did not preserve the issue for review because their complaint of the non-joinder was not timely and because they made no effort themselves to join [the grantors] . . . . The failure to join parties, even those necessary and indispensable, is not jurisdictional." Id. "[O]ne should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time." Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam).

A limited exception to our procedural preservation rules is the fundamental error doctrine. We must therefore determine whether the failure to join Juan Castillo was such fundamental error that Ruby Tristan need not properly preserve the error. Fundamental error review has been used to review unpreserved error in rare instances such as when a court lacks jurisdiction. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). In Cox v. Johnson, the Supreme Court addressed the court of appeals' holding that the failure to join a party constituted fundamental error which could be addressed for the first time on appeal, and determined that fundamental error "is a discredited doctrine." Cox, 638 S.W.2d at 868. "Fundamental error survives today only in those rare instances in which the record shows on its face that the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes and constitution of this state." Id. We have determined that the non-joinder of Juan Castillo was not jurisdictional. The Supreme Court of Texas has determined that rules regarding preservation of error must be followed even in parental rights cases. "[R]ules governing error preservation must be followed in cases involving termination of parental rights as in other cases in which a complaint is based on constitutional error." See In re K.A.F., 160 S.W.3d 923, 928 (Tex.), cert. denied sub nom. Carroll v. Faucheux, 126 S. Ct. 483 (2005). Because Ruby Tristan failed to object to the nonjoinder of Juan Castillo before judgment was entered, she preserved nothing for our review. Therefore, the trial court did not abuse its discretion in denying Tristan's motion for new trial.

Conclusion

We have no jurisdiction to hear the appeal of Juan Castillo and dismiss Juan's appeal for want of jurisdiction. See Tex. R. App. P. 30. Having overruled Ruby Tristan's issues, we must affirm the judgment of the trial court.

Rebecca Simmons, Justice

1. Tex. R. App. P. 30 provides that restricted appeals replace writ of error appeals to the Court of Appeals.

2. The order specifically states that it was "approved and consented to as to both form and substance."

3. "Jurisdiction" refers to a court's authority to adjudicate a case. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)). "In general, as long as the court entering a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void." Id.

4. "[A]t the appellate stage there is reason not to throw away a judgment just because it did not theoretically settle the whole controversy." Id. at 204 (citing Cont'l Ins. Co. of NewYork v. Cotten, 427 F.2d 48, 51 (9th Cir. 1970).

5. Texas Family Code section 102.009 provides for service of citation on each parent unless process has been waived in a suit affecting the parent-child relationship. Tex. Fam. Code Ann. 102.009 (Vernon 2006).