Candace Louise Curtis v. Carl Henry Brunsting, Individually and as Independent of the Estates of Elmer H. Brunsting and Nelva E. Brunsting

• Court: Court of Appeals of Texas
• Decided: March 25, 2025
• Docket: 01-23-00362-CV
• Status: Published

Opinion

Opinion issued March 25, 2025.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00362-CV ——————————— CANDACE LOUISE CURTIS, Appellant V. CARL HENRY BRUNSTING, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATES OF ELMER H. BRUNSTING AND NELVA E. BRUNSTING, Appellees

On Appeal from the Probate Court No 4 Harris County, Texas Trial Court Case No. 412,249-401

MEMORANDUM OPINION

Appellant Candace Louise Curtis filed a notice of appeal on April 26, 2023,

attempting to appeal from the trial court’s order signed on February 25, 2022

granting summary judgment for Amy Ruth Brunsting and Anita Kay Brunsting, in their individual capacities and as co-trustees of The Brunsting Family Living Trust

a/k/a The Restatement of the Brunsting Family Living Trust. Appellant also attempts

to appeal from the trial court’s order, signed on February 14, 2019, denying her plea

to the jurisdiction and “any other rulings subsumed” within the case.

Generally, appellate courts have jurisdiction to consider only appeals from

final judgments. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). In the

absence of a trial, a judgment is deemed final when “(1) it actually disposes of every

pending claim and party or (2) it clearly and unequivocally states that it finally

disposes of all claims and parties, even if it does not actually do so.” In re

Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021) (per curiam). Appellate

courts have jurisdiction to consider immediate appeals of interlocutory orders if a

statute explicitly provides appellate jurisdiction. CMH Homes, 340 S.W.3d at 447–

48. ”When a trial court renders a final judgment, the court’s interlocutory orders

merge into the judgment and may be challenged by appealing that judgment.”

Bonsmara Natural Beef Co., LLC v. Hart of Texas Cattle Feeders, LLC, 603 S.W.3d

385, 390 (Tex. 2020).

Generally, a notice of appeal is due within thirty days of the trial court signing

its final judgment.1 See TEX. R. APP. P. 26.1. However, where a party timely files

1 Appeals from interlocutory orders, when authorized by statute, are accelerated appeals. TEX. R. APP. P. 28.1(a). “In an accelerated appeal, the notice of appeal must 2 certain post-judgment motions, such as a motion for new trial or motion to modify

the judgment, the deadline to file a notice of appeal is extended to ninety days after

the entry of judgment. See TEX. R. APP. P. 26.1(a). Post-judgment motions generally

must be filed within thirty days after the judgment or other order complained of is

signed. See TEX. R. CIV. P. 329b(a), (g). The time to file a notice of appeal may also

be extended by the appellate court if, within fifteen days after the deadline to file the

notice of appeal, a party files a notice of appeal and a motion for extension of time

to file a notice of appeal that complies with Texas Rule of Appellate Procedure

10.5(b). See TEX. R. APP. P. 26.3.

Here, the record before us does not clearly demonstrate that the trial court’s

orders listed in appellant’s notice of appeal are appealable. But even if these orders

are appealable, appellant filed her notice of appeal on April 26, 2023, which was

more than three years after the trial court rendered its order on February 14, 2019,

and more than one year after the trial court entered its order on February 25, 2022.

Thus, appellant’s direct appeal from these orders is untimely.2

be filed within 20 days after the judgment or order is signed.” TEX. R. APP. P. 26.1(b). 2 This Court denied appellant’s petition for writ of mandamus, filed on July 11, 2022, concerning these orders. See In re Curtis, No. 01-22-00514-CV, 2022 WL 4099833, at *1 (Tex. App.—Houston [1st Dist.] Sept. 8, 2022, orig. proceeding) (mem. op.). Additionally, this Court granted appellant’s motion to voluntarily dismiss her appeal, filed on May 18, 2022, from these orders. See Curtis v. Brunsting, No. 01- 22-00378-CV, 2023 WL 1974867, at *1 (Tex. App.—Houston [1st Dist.] Feb. 14, 2023, no pet.) (per curiam) (mem. op.). 3 On February 22, 2024, this Court sent appellant a letter questioning the

Court’s jurisdiction over this appeal because her notice of appeal appeared untimely.

We directed appellant to file a response addressing the jurisdictional issue. In her

response, appellant acknowledges that her notice of appeal is untimely. However,

she claims that the trial court’s orders are void for lack of subject matter jurisdiction,

and that this Court “always has jurisdiction to determine an order void for lack of

subject matter jurisdiction.” Therefore, she claims the untimeliness of her notice of

appeal does not prevent this Court from reaching the merits of her appeal and

considering whether the trial court’s orders are void. We disagree.

A judgment rendered by a trial court that lacks jurisdiction over the parties or

over the subject matter is void. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272

(Tex. 2012). A judgment may be challenged as void through a direct attack or a

collateral attack. Id. at 271. “A direct attack—such as an appeal, a motion for new

trial, or a bill of review—attempts to correct, amend, modify or vacate a judgment

and must be brought within a definite time period after the judgment’s rendition.”

Id. “A collateral attack, unlike a direct attack, does not attempt to secure the rendition

of a single, correct judgment in the place of the former judgment.” A-1 Am.

Transmission & Auto./MCSR, Inc. v. Hale, No. 01-23-00535-CV, 2024 WL

3762485, at *4 (Tex. App.—Houston [1st Dist.] Aug. 13, 2024, no pet.) (mem. op.)

(citing Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973)).

4 It, instead, “seeks to avoid the binding effect of a judgment in order to obtain specific

relief that the judgment currently impedes.” PNS Stores, 379 S.W.3d at 272.

“Because a collateral attack does not seek rendition of a new judgment to

correct the judgment under attack, but merely seeks to show that the original

judgment is void, such an action may be brought in any court of general jurisdiction.”

Hale, 2024 WL 3762485, at *4 (citing Solomon, Lambert, Roth & Assocs., Inc. v.

Kidd, 904 S.W.2d 896, 900 (Tex. App.—Houston [1st Dist.] 1995, no writ) (citing

Austin Indep. Sch. Dist., 495 S.W.2d at 881)). “A collateral attack is accomplished

through initiating a new case under a different cause number that challenges the

effect of the original judgment.” Hale, 2024 WL 3762485, at *4 (citing Travelers

Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (“A void order is subject to

collateral attack in a new lawsuit . . . .”)). A party may collaterally attack a void

judgment at any time, even after the time within which to file a direct attack has

expired. See PNS Stores, 379 S.W.3d at 272.

The appeal before us is a direct attack on the trial court’s orders as void; thus,

appellant was required to file a timely notice of appeal. See PNS Stores, 379 S.W.3d

at 271 (direct attacks against a judgment, such as direct appeals, must be brought

within a definite time period after the judgment’s rendition); Texas Dep’t of Public

Safety v. Tran, 672 S.W.3d 806, 813 (Tex. App.—Houston [14th Dist.] 2023, no

pet.) (“Texas courts have held that an appellate court in an untimely direct appeal

5 may not adjudicate a party’s arguments as to why a judgment or order is void.”

(collecting cases)); Tafoya v. Green Tree Servicing LLC, No. 03-14-00391-CV, 2014

WL 7464321, at *2 n.2 (Tex. App.—Austin Dec. 30, 2014, no pet.) (mem. op.)

(Texas courts “have consistently held that a party cannot attack a void judgment in

an untimely direct appeal.” (collecting cases)). Because appellant failed to file a

timely notice of appeal, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.

Amparo “Amy” Guerra Justice

Panel consists of Justices Guerra, Caughey, and Morgan.