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dismissing challenge to default judgment for lack of jurisdiction where no appeal was perfected and a subsequent bill of review proceeding was dismissed for want of prosecution
Summary of this case from Sintim v. LarsonOpinion
No. 14-07-00448-CV
Memorandum Opinion filed February 21, 2008.
On Appeal from the 270th District Court, Harris County, Texas, Trial Court Cause No. 2002-12059.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and BOYCE.
MEMORANDUM OPINION
According to the notice of appeal, this is an appeal from an order signed May 18, 2007, granting the judgment creditor/appellee's application for post-judgment turnover of non-exempt assets and appointing a receiver. The underlying default judgment was signed July 19, 2002.
Appellant filed his brief on November 14, 2007. By order filed November 29, 2007, this court struck the brief for failure to comply with the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. Appellant's amended brief was filed on December 17, 2007. Appellant's sole issue in his brief asks whether appellant received due process before the 2002 default judgment was entered. See TEX. R. APP. P. 38.1(e) (requiring brief to present concise statement of issues for review). He has failed to raise an issue challenging the May 18, 2007, turnover order named in his notice of appeal. See TEX. R. APP. P. 25.1(d) (requiring notice of appeal to include date of judgment or order being appealed).
Appellant has cited three cases in his brief: (1) Werner Colwell, 909 S.W.2d 866, 869 (Tex. 1995) (stating judgment may not be rendered against one who was neither named nor served as party defendant); (2) LBL Oil Co. v. Internat'l Paper Servs., 777 S.W.2d 390, 391 (Tex. 1989) (reversing default judgment for lack of notice of hearing); and (3) Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex.App.-San Antonio 1987, no writ) (stating that purpose of citation is to give court proper jurisdiction over parties and to provide notice to defendant that he has been sued and by whom). These cases fail to support reversal of the turnover order appealed herein.
No appeal was perfected from the 2002 default judgment. Appellant subsequently filed a bill of review under trial court number 2006-43950 to challenge the default judgment. The bill of review proceeding was dismissed for want of prosecution on March 2, 2007. Appellant attempted to appeal that dismissal under our appeal number 14-07-00427-CV. Because the notice of appeal was untimely, this court dismissed the appeal from the bill of review proceeding for want of jurisdiction. See Carmona v. Stahely, No. 14-07-00427-CV, (Tex.App.-Houston [14th Dist.] Sept. 6, 2007, no pet.) (mem. op.). Appellant did not file a motion for rehearing or petition for review, and this court's mandate issued on November 16, 2007. Unless a direct attack on a judgment, such as by ordinary appeal or bill of review, is successful, the judgment is valid and entitled to all the process for enforcement and collection allowed by law. Texas Dept. of Public Safety v. Burrows, 976 S.W.2d 304, 306 (Tex.App.-Corpus Christi 1998, no pet.).
On January 14, 2008, appellee filed a motion to dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). Appellee asserts that this court lacks jurisdiction to consider appellant's appeal because he is attempting to challenge the 2002 judgment. To date, appellant has filed no response to appellee's motion.
This court lacks jurisdiction to consider appellant's attempted challenge to the 2002 default judgment. See In re K.A.F, 160 S.W.3d 923, 927 (Tex. 2005) (holding untimely notice of appeal failed to invoke jurisdiction of court of appeals). Appellant has presented no issue challenging the 2007 turnover order. A court of appeals cannot reverse a trial court except upon properly assigned issues that have been adequately briefed. Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (per curiam). If an appellant fails to argue a ground that would warrant reversal, then the ground is waived. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990) (per curiam). Appellant's brief has presented nothing for this court to review. See Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied).
Appellee's motion is granted. Accordingly, the appeal is ordered dismissed.