JOSEPHINE DOUGLAS PETERS v. CHOE HOLEN YOO BURCHFIEL

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Court of Appeals of Texas, Dallas.

JOSEPHINE DOUGLAS-PETERS, Appellant v. CHOE, HOLEN, YOO & BURCHFIEL, P.C., Appellee

No. 05-10-00208-CV

Decided: December 7, 2010

Before Justices Bridges, Francis, and Lang

MEMORANDUM OPINION

Opinion By Justice Francis

Josephine Douglas-Peters appeals the trial court's summary judgment in favor of Choe, Holen, Yoo & Burchfiel, P.C. (the Firm).   For the reasons that follow, we vacate the trial court's May 5, 2010 summary judgment and dismiss the appeal.

In August 2008, Douglas-Peters filed her original pro se petition against C.F. & H. Corporation d/b/a South Dallas Nursing Home, Dr. Leona Hawkins, Juliette Wesley, and Charles W. Smith for wrongful termination and violations of the health and safety code.   The following month, she signed a retainer agreement with attorney Michael Burchfiel and the Firm to represent her in the case.   By the time Douglas-Peters filed her June 2009 motion for summary judgment, other attorneys at the Firm had taken over Burchfiel's obligations representing Douglas-Peters.   The trial court entered final judgment on October 27, 2009, awarding Douglas-Peters over $322,000 in damages and $80,000 in attorney's fees.   Neither Douglas-Peters nor the defendants filed, within the thirty-day period following entry of judgment, a motion for new trial or to correct, modify, or reform the judgment or any other post-judgment motion that would extend the trial court's plenary jurisdiction.

Douglas-Peters then began efforts to collect the judgment, including having certain real property belonging to the defendants sold at public auction.   On January 29, 2010, the trial court granted the Firm's motion to withdraw as attorney of record.   Four days later, the Firm filed an original petition in intervention, seeking to enforce the retainer agreement and recover attorney's fees of “approximately $164,400” plus expenses of $6000.   That same day, the defendants' real property sold at a public auction for $412,000.

The trial court granted the Firm's request for a temporary restraining order and ordered the funds from the sale of defendants' real property deposited into the registry of the court.   The Firm subsequently filed a motion for summary judgment, and on May 5, 2010, the trial court granted the Firm's motion, entering summary judgment against Douglas-Peters.

In her first issue, Douglas-Peters contends the trial court exceeded its authority by allowing the Firm to intervene and by entering various orders, including the temporary restraining order and the May 5, 2010 order granting the Firm summary judgment, because the trial court's plenary power had expired.

A non-party successfully intervenes in a case if it files a plea in intervention prior to the entry of judgment and the court does not strike the plea on the motion of a party.  Malone v. Hampton, 182 S.W.3d 465, 468 (Tex.App.-Dallas 2006, no pet.).   A non-party may also successfully intervene post-judgment provided that both the plea is filed and the judgment is set aside within thirty days from judgment.  Id. Judicial action taken after the expiration of the trial court's jurisdiction is a nullity, and any orders signed outside the court's plenary jurisdiction are void.  Id.

In this case, the trial court signed the final judgment in the underlying case on October 27, 2009.   Neither Douglas-Peters nor the defendants in the underlying case filed a motion for new trial or a motion to correct, modify, or reform the judgment or any other post-judgment motion that would extend the trial court's plenary jurisdiction.   Because the thirtieth day after judgment was November 26, 2009, Thanksgiving Day, the trial court's plenary power in this case expired November 30, 2009.   See Tex.R. Civ. P. 4. Because the Firm filed its petition for intervention February 2, 2010, sixty-four days after the trial court's plenary power expired, the Firm's intervention was untimely and all orders signed in connection with the intervention, including the May 5, 2010 “Final Summary Judgment” are void.

In reaching this conclusion, we reject the Firm's claim it was not seeking to challenge the merits of the underlying judgment and that under “such circumstances, plenary jurisdiction is irrelevant to the determination of whether the trial court should allow intervention.”   In support of this argument, the Firm cites two cases from our sister courts.   See Lerma v. Forbes, 166 S.W.3d 889 (Tex.App.-El Paso 2005, pet. denied) and Breazeale v. Casteel, 4 S.W.3d 434 (Tex.App.-Austin 1999, pet. denied).   This Court has previously distinguished these cases and found them to be inapplicable when, as in this case, an attorney or law firm seeks fees incurred in representing one of the parties in the underlying case.   See Gore v. Peck, 191 S.W.3d 927, 928 (Tex.App.-Dallas 2006, no pet.);  Malone, 182 S.W.3d at 469.   As was the case in both Gore and Malone, the Firm is seeking attorney's fees incurred in representing Douglas-Peters in the underlying suit.   In Gore, we stated “seeking attorney's fees for services rendered was a part of the [underlying] suit;” therefore, the Firm is “seeking to alter the underlying judgment, and Breazeale does not apply.”   See Gore, 191 S.W.3d at 928-29.   We also note the El Paso Court of Appeals has issued an opinion limiting its holding in Lerma.   See Attorney Gen. of Tex. v. Casner, 224 S.W.3d 216, 221 (Tex.App.-El Paso 2004, no pet.) (“the Breazeale Court clearly limited its holding to post-judgment motions for turnover relief.”).   Because the facts of this case are distinguishable and because we are bound by our previous opinions on this issue, we decline to rely on the holdings in Lerma and Breazeale.   We sustain Douglas-Peters's first issue.

Because the Firm's petition for intervention was filed after the trial court's plenary power expired, the intervention was untimely and all the trial court orders signed in connection with the intervention are void.   We vacate the trial court's May 5, 2010 “Final Summary Judgment.”   The trial court's October 27, 2009 “Final Judgment” remains the final judgment in this case.   We dismiss this appeal.

100208F.P05

MOLLY FRANCIS JUSTICE

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