Tummel & Casso and Harold K. Tummel v. the Mega Life and Health Insurance Company, William Snyder, M.D. Patricia Snyder and Rio Grande Orthopedic Institute, P.A.

Tummel & Casso v. (Five Defendants) COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG NUMBER 13-02-00312-CV TUMMEL & CASSO AND HAROLD K. TUMMEL, Appellants, v. THE MEGA LIFE AND HEALTH INSURANCE COMPANY, WILLIAM SNYDER, M.D., PATRICIA SNYDER, AND RIO GRANDE ORTHOPAEDIC INSTITUTE, P.A., Appellees. NUMBERS 13-02-00313-CV 13-02-00315-CV TUMMEL & CASSO AND HAROLD K. TUMMEL, Appellants, v. LONE STAR NATIONAL BANK, WILLIAM SNYDER, M.D., PATRICIA SNYDER, AND RIO GRANDE ORTHOPAEDIC INSTITUTE, P.A., Appellees. NUMBER 13-02-00314-CV TUMMEL & CASSO AND HAROLD K. TUMMEL, Appellants, v. AMERICAN NATIONAL LIFE INSURANCE COMPANY OF TEXAS, WILLIAM SNYDER, M.D., PATRICIA SNYDER, AND RIO GRANDE ORTHOPAEDIC INSTITUTE, P.A., Appellees. NUMBER 13-02-00316-CV TUMMEL & CASSO AND HAROLD K. TUMMEL, Appellants, v. CLAIMS ADMINISTRATION SERVICES, INC., WILLIAM SNYDER, M.D., PATRICIA SNYDER, AND RIO GRANDE ORTHOPAEDIC INSTITUTE, P.A.,, Appellees. On appeal from the 93rd District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Rodriguez Memorandum Opinion by Justice Hinojosa These are restricted appeals from an order of the trial court dissolving post-judgment writs of garnishment in five separate cases. In a single issue, appellants, Tummel & Casso (“T&C”) and Harold K. Tummel (“Tummel”), complain of the trial court’s order dissolving the writs. Appellees, William Snyder, M.D., Patricia Snyder, and Rio Grande Orthopaedic Institute, P.A., were defendants in the underlying proceeding (“Snyder” collectively). Appellees, The Mega Life and Health Insurance Company, Lone Star National Bank, American National Life Insurance Company of Texas, and Claims Administration Services, Inc., were the garnishees in these cases. Appellees assert that the subject writs were properly dissolved by the trial court for lack of a valid, subsisting judgment. Because appellants have failed to meet the requirements for bringing a restricted appeal, we dismiss these appeals for want of jurisdiction. A. Procedural History T&C originally sued Snyder to recover attorney’s fees arising from an unrelated matter. In turn, Snyder filed a counterclaim against T&C and a third-party action against third-party defendants, Tummel and Lydia Casso Tummel, alleging legal malpractice. On April 20, 2000, in cause number C-4419-99-B, the trial court signed an order granting summary judgment in favor of T&C on its claim for attorney’s fees. Within the same order granting summary judgment, the trial court ordered that the claims of T&C be severed from the other claims pending in the case and docketed as a separate case. From April 24, 2000 to May 1, 2000, T&C filed post-judgment applications for writs of garnishment against appellees, The Mega Life and Health Insurance Company, Lone Star National Bank, American National Life Insurance Company of Texas, and Claims Administration Services, Inc., based on the summary judgment granted by the trial court against Snyder. On May 3, 2000, Snyder filed an original petition for injunction and damages against appellants in the various garnishment actions. Within the petitions, Snyder asked that the writs of garnishment be dissolved because the judgment in the underlying proceeding was not final. The trial court set a hearing for May 12, 2000 and issued an order restraining appellants from: (1) prosecuting the writs already filed; (2) filing any new writs; or (3) in any way pursuing collection of the April 20 summary judgment order. On May 9, 2000, Snyder filed a motion requesting the trial court to reconsider appellants’ motion for summary judgment and to vacate the April 20 order granting summary judgment. The motion was filed in the parent cause number, the same cause number wherein the summary judgment was originally granted. This motion was also scheduled to be heard on May 12, 2000. At the May 12 hearing, the only motion presented was Snyder’s motion to vacate the April 20 summary judgment order. On May 19, 2000, the trial court signed an order granting Snyder’s motion to vacate the April 20 summary judgment order. The order was entered in the parent cause number. On June 29, 2000, appellants filed a motion in the parent cause number, seeking to vacate the May 19 order setting aside the summary judgment. Appellants argued that the May 19 order was improvidently granted. Following unsuccessful mediation, the trial court, on September, 11, 2000, heard and denied appellant’s June 29 motion to vacate the order setting aside the summary judgment. The order was entered in the parent cause number. On October 11, 2000, to protect themselves from any attempt at post-judgment discovery, Snyder filed a motion for protection in the parent cause number, asserting that no judgment existed upon which such discovery could be predicated. T&C responded by filing a motion to compel production in the severed cause number. The trial court denied the motion to compel production on November 14, 2000, and granted the motion for protection on November 16, 2000. On March 1, 2001, Snyder filed a no-evidence summary judgment motion, alleging that as a matter of law, appellants did not possess the evidence necessary to sustain their claim for attorney’s fees. On August 31, 2001, the trial court granted Snyder’s no-evidence motion for summary judgment, effectively entering a take-nothing judgment against appellants. The order was entered in the parent cause number. A status conference was later ordered to address the writs of garnishment. With counsel for both sides present, the issue of the writs of garnishment was passed due to a pending writ of mandamus in this Court, seeking to conduct post-judgment discovery in the underlying case. Following denials in both this Court and the Texas Supreme Court, the trial court reconvened a status conference to address the writs of garnishment on October 25, 2001. Appellants argued that their April 20, 2000 summary judgment was subsisting because the order vacating the summary judgment was filed in the parent cause number and not the severed cause number. Snyder argued that there was no final judgment. After hearing arguments, the trial court provided all parties the opportunity to submit briefs on this issue. On November 5, 2001, appellants filed an extensive brief, complete with case law and relevant portions of the record, arguing their contention that a valid, subsisting judgment remained. Nevertheless, on November 30, 2001, the trial court signed an order dissolving the writs of garnishment. B. Restricted Appeal Restricted appeals replace writ of error appeals to this Court. Tex. R. App. P. 30. A party who did not participate – either in person or through counsel – in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by rule 26.1(a), may file a notice of appeal within the time permitted by rule 26.1(c). Id. The four elements necessary for a review by restricted appeal are: (1) the appeal must be filed within six months after the final judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the actual trial; and (4) error must be apparent from the face of the record. Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999); Carmona v. Bunzl Distribution, 76 S.W.3d 566, 568 (Tex. App.–Corpus Christi 2002, no pet.). A restricted appeal is a direct attack on a judgment. Diles v. Henderson, 76 S.W.3d 807, 809 (Tex. App.–Corpus Christi 2002, no pet.). A restricted appeal affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. Id. The only restriction on the scope of restricted appeal review is that the error must appear on the face of the record. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal. Id. In their sole issue, appellants contend they were denied due process by the trial court’s signing of the order dissolving the writs of garnishment without notice to appellants of its intention to consider such an action, and without providing appellants a meaningful opportunity to be heard concerning such action. It is undisputed that appellants, parties to the original lawsuit, perfected this appeal within six months from the date the order dissolving the writs of garnishment was signed. The first two requirements of rule 30 are not at issue in this case. What is at issue here is whether appellants participated in the proceedings that resulted in the adverse order. In determining whether the nonparticipation requirement of rule 30 is met, the question is whether appellants participated in the “decision-making” event that resulted in the order adjudicating appellants’ rights. Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The nature and extent of participation that precludes a restricted appeal is a matter of degree because trial courts decide cases in a wide variety of procedural settings. Id. (citing Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985)). A party’s participation in a proceeding decided as a matter of law may be very different from one tried to a jury. Id. (citing Lawyers Lloyds of Tex. v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097-98 (1941)). Participation in a dispositive hearing will cut off that party’s ability to proceed by restricted appeal. See C & V Club v. Gonzalez, 953 S.W.2d 755, 757 (Tex. App.–Corpus Christi 1997, no writ). As outlined above, the record reflects that appellants were fully and actively represented by counsel throughout the proceedings in the underlying case. The proceedings in the underlying case were necessary to maintain the garnishment actions. A post-judgment garnishment proceeding, being ancillary in nature, takes its jurisdiction from the underlying suit. Baca v. Hoover, Bax, & Shearer, 823 S.W.2d 734, 738 (Tex. App.–Houston [14th Dist.] 1992, writ denied). If the judgment in the underlying suit is reversed, the garnishment proceeding becomes a nullity and the writ issued thereunder is functus officio, or of no further force or authority. Id. The proceedings in the underlying case determined the issue of whether the trial court’s April 20, 2000 summary judgment order was valid and subsisting. The papers in the case established that on May 19, 2000, the trial court vacated its April 20, 2000 summary judgment order at a time when it still enjoyed plenary power over the order. See Tex. R. Civ. P. 329b(d) (“The trial court, regardless of whether an appeal has been perfected, 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.”); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). As clearly articulated by the trial court in its order granting Snyder’s motion for protection: The Court hereby finds, after an opportunity for argument and a hearing, that the prior order of summary judgment and severance previously entered by this Court has been vacated and set aside, that there has been no final judgment rendered or entered in this matter as numbered above or referenced in any pleadings of [T&C] or the parties as Case No. C-4419-99-B(1), that Case No. C-4419-99-B(1) was rendered null and void by the order vacating and setting aside the prior order of summary judgment entered by this Court wherein the severance was contained, and that post-judgment discovery is therefore inappropriate and unwarranted. Without a final judgment, appellants are unable to maintain their garnishment actions because writs of garnishment are available to appellants only if appellants have a valid, subsisting judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 63.001(3) (Vernon 1997); see also Tom Benson Chevrolet Co., Inc. v. Beall, 567 S.W.2d 857, 859 (Tex. Civ. App.–San Antonio 1978, writ ref’d n.r.e.) (judgment that has been set aside will not support a garnishment judgment). We conclude that the proceedings in the underlying case were the critical procedural events affecting appellants’ rights that led to the order now under attack. See Girdley v. Southwestern Bell Yellow Pages, Inc., 869 S.W.2d 409, 411 (Tex. App.–El Paso 1993, writ denied); see, e.g., Norman v. Dallas Cowboys Football Club, Inc., 665 S.W.2d 137, 139-40 (Tex. App.–Dallas 1983, no writ) (taking part in all necessary steps of summary judgment proceedings affecting party’s rights, constituted participation for purposes of review by writ of error, even though party did not attend actual hearing); Thacker v. Thacker, 496 S.W.2d 201, 204 (Tex. Civ. App.–Amarillo 1973, writ dism’d) (same). Because they participated in the critical proceedings that led to the order dissolving the writs of garnishment, we hold appellants have failed to meet the requirements for a restricted appeal. Although the record fails to establish an evidentiary hearing immediately preceding the trial court’s order dissolving the writs of garnishment, appellants’ nonparticipation at such a hearing does not negate the fact that they actively participated in the critical procedural events that resulted in the adverse order. We overrule appellants’ sole issue. We dismiss these appeals for want of jurisdiction. FEDERICO G. HINOJOSA Justice Memorandum Opinion delivered and filed this the 26th day of August, 2004.