Affirmed; Appellant’s Motion for Rehearing Denied and Supplemental Memorandum Opinion on Rehearing filed November 12, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01040-CV
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OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS, Appellant
V.
CHERYL L. PHILLIPS, Appellee
On Appeal from the County Court at Law
Walker County, Texas
Trial Court Cause No. 5408
S U P P L E M E N T A L M E M O R A N D U M O P I N I O N
O N R E H E A R I N G
In its motion for rehearing, the Office of the Attorney General of Texas attempts to address for the first time its failure to preserve error in the trial court. While we change nothing in our original opinion or in our disposition of the appeal, we supplement the opinion to address the issues raised in the motion for rehearing. The motion for rehearing is denied.
On rehearing, appellant makes the following additional arguments to show that it was not required to preserve error below to argue on appeal that the trial court erred in ordering it to pay Phillips’ attorney’s fees: (1) sovereign immunity deprives the trial court of jurisdiction to assess attorney’s fees against it; (2) the trial court’s assessment of attorney’s fees against appellant when it lacked jurisdiction constituted fundamental error that can be raised for the first time on appeal; and (3) a motion for new trial is not necessary to raise either legal or factual sufficiency complaints in a nonjury trial. We address each in turn.
Sovereign Immunity
Appellant contends that sovereign immunity protects it from the trial court’s order that it pay Phillips’ attorney’s fees, and suggests that the trial court’s order is void because it lacked jurisdiction to enter the judgment against appellant. In support of this, appellant cites Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Beyond citing to general statements of the law, however, appellant does not explain how sovereign immunity applies here. Instead, appellant argues there is no statutory authority for assessing attorney’s fees against it, and reasserts its original argument that Family Code section 231.211 prohibits the trial court from assessing attorney’s fees against the Attorney General’s office in this context. These arguments do not support appellant’s position.
First, despite its argument that the trial court lacks authority to assess attorney’s fees against it, appellant does not dispute that it can be ordered to pay attorney’s fees as a sanction. Indeed, in its original brief, it even cites a similar case in which the court upheld an award of attorney’s fees against the Attorney General’s office when the award was imposed as a sanction under Texas Rule of Civil Procedure 13. See In the Interest of A.C.B., 103 S.W.3d 570, 575–77 (Tex. App.—San Antonio 2003, no pet). Second, appellant does not explain how Family Code section 231.211 relates to sovereign immunity or acts to deprive the trial court of jurisdiction so as to render the trial court’s judgment void. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (per curiam) (“A judgment is void only when it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.”) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987)). As the Texas Supreme Court expressly held in Mapco, “the mere fact that an action by a court . . . is contrary to a statute, constitutional provision or rule of civil or appellate procedure makes it [not void but] ‘voidable’ or erroneous.” Mapco, 795 S.W.2d at 703; see also A.C.B., 103 S.W.3d at 574 (rejecting Attorney General’s argument that sovereign immunity was implicated in child support obligor’s declaratory judgment action because he “does not attempt to impose liability on the State, nor is he making a claim against the State”). We are unpersuaded by appellant’s cursory argument and decline to hold in this case that sovereign immunity applies to deprive the trial court of jurisdiction to assess attorney’s fees against it.
Fundamental Error
Appellant next contends that, because sovereign immunity deprives the trial court of jurisdiction over it, the trial court’s judgment assessing attorney’s fees against it constitutes fundamental error, which can be raised for the first time on appeal. In our original opinion, we noted that appellant “makes no argument that it is entitled to the relief it seeks despite its failure to comply with the rules of appellate procedure” and “does not contend that this is a case of fundamental error, or provide any reason why Rule of Appellate Procedure 33.1 should not apply.” It appears that appellant took this language as a suggestion as to what it should argue, and so now raises this fundamental error argument. Again, however, we are unpersuaded.
In Pirtle v. Gregory, the Texas Supreme Court explained that instances of fundamental error are few: “Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.” 629 S.W.2d 919, 920 (Tex. 1982) (per curiam); see also Siebenmorgen v. Hertz Corp., No. 14-97-01012-CV, 1999 WL 21299, at *3 n.4 (Tex. App.—Houston [14th Dist.] Jan. 21, 1999, no pet.) (not designated for publication) (noting that trial court’s error in failing to stay trial during interlocutory appeal in contravention of statute was procedural rather than fundamental error and was waived because appellant failed to object below). Here, appellant argues only that the trial court’s judgment constituted fundamental error because sovereign immunity deprived the court of subject matter jurisdiction—a position we have rejected. As we noted above, errors other than lack of jurisdiction, such as when a court acts contrary to a statute, merely render the judgment voidable so that it may be “corrected through the ordinary appellate process or other proper proceedings.” Mapco, 795 S.W.2d at 703.[1] Accordingly, appellant’s failure to object to the assessment of attorney’s fees against it waived any error the trial court committed.
Legal or Factual Insufficiency of Evidence
Lastly, appellant argues that it was not required to object to the assessment of attorney’s fees against it because Texas Rule of Civil Procedure 324 provides that a motion for new trial is not a prerequisite to a complaint on appeal in either a jury or nonjury case except as provided in the rule, and it is not necessary to raise either legal or factual sufficiency complaints in a nonjury trial.[2] Although not mentioned by appellant, we note that Rule 33.1(d) expressly provides that, in a nonjury case, legal or factual insufficiency of the evidence issues may be raised for the first time on appeal in the complaining party’s brief. See Tex. R. App. P. 33.1(d).
Appellant’s argument is wholly unclear from its scant briefing, but we construe it to be that an objection based on Family Code section 231.221 is a legal sufficiency of the evidence or “no evidence” issue that need not be raised in a motion for new trial.[3] In its original brief, appellant did not raise any legal or factual insufficiency of the evidence issues, and did not challenge the amount of the attorney’s fees. Now, however, it merely asserts—without any legal analysis or citation to authority—that it was not required to file a motion for new trial on the issue. Appellant makes no attempt to explain why this issue is one of sufficiency of the evidence, or why its compliance with Rule 33.1 is excused. We note that, as the State’s attorneys practicing in a highly specialized area of the law, appellant was surely well aware of the statute prohibiting the assessment of attorney’s fees against it in a child support enforcement action. And, appellant had numerous opportunities to bring the statute to the trial court’s attention; for example, it could have raised it in response to Phillips’ motions, at the hearing, or at some point before or after it submitted to the court the proposed order it prepared. Had appellant done this, we are confident the trial court would have ruled differently, and this appeal and motion for rehearing would have been unnecessary. As the Texas Supreme Court succinctly explained in Pirtle v. Gregory, “The reason for the requirement that a litigant preserve a trial predicate for complaint on appeal is that one 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.” 629 S.W.2d at 920. This requirement is sound, and therefore we decline to accept appellant’s mere ipse dixit otherwise.
The judgment of the trial court is affirmed.
/s/ Wanda McKee Fowler
Justice
Rehearing Denied and Supplemental Memorandum Opinion on Rehearing filed November 12, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
[1]We further note that appellant failed to bring to our attention cases that have addressed similar issues. See, e.g., City of Port Isabel v. Shiba, 976 S.W.2d 856, 860 (Tex. App.—Corpus Christi 1998, pet. denied) (holding that trial court’s assessment of attorney’s fees against city in absence of statutory authority was not fundamental error and city waived error when it failed to object below); County of El Paso v. Boy’s Concessions, Inc., 772 S.W.2d 291, 293–94 (Tex. App.—El Paso 1989, no writ) (holding that county waived argument that it was exempt by statute from payment of attorney’s fees when it failed to object below); see also Tex. Dept. of Pub. Safety v. Burrows, 976 S.W.2d 304, 307 (Tex. App.—Corpus Christi 1998, no pet.) (holding that, even though it had no opportunity to object before the entry of attorney’s fees against it, Department waived challenges to attorney’s fee award when it failed to preserve issues by some motion, such as a motion for rehearing or for new trial).
[2]In support of its contention that a motion for new trial is not necessary to raise either legal or factual sufficiency complaints in a nonjury trial, appellant cites Johnstone v. State, 961 S.W.2d 385, 387 (Tex. App.—Houston [1st Dist.] 1997, no writ), and Strickland v. Coleman, 824 S.W.2d 188, 191 (Tex. App.—Houston [1st Dist.] 1991, no writ).
[3]The entirety of appellant’s argument on this issue is as follows:
This Court has determined that Appellant was obligated under the provisions of Rule 33.1, Rules of Appellate Procedure, to call to the attention of the trial court that it did not have authority or jurisdiction to enter a judgment for attorney fees on the basis that such fees were precluded by Family Code section 231.211. The primary device provided by the Rules of Civil Procedure for preserving such an error or for calling to the attention of the trial court an error in the judgment is the filing of a motion for new trial. Rule 324, however, specifically provides that the filing of a motion for new trial is not a prerequisite to appeal.