G.B. GREINER, JR., H. DAVID TULLOS, and SOUTHLAND OIL PARTNERS, INC., Appellants v. JOHN JAMES JENKINS, Trustee for the Bankruptcy Estate of William D. Brosseau, and CARL JAMESON, Appellees

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 5th District Court of Appeals » 1993 » G.B. GREINER, JR., H. DAVID TULLOS, and SOUTHLAND OIL PARTNERS, INC., Appellants v. JOHN JAMES JENKINS, Trustee for the Bankruptcy Estate of William D. Brosseau, and CARL JAMESON, Appellees

State: Texas

Court: Texas Northern District Court

Docket No: 05-92-00757-CV

Case Date: 08/03/1993

Plaintiff: G.B. GREINER, JR., H. DAVID TULLOS, and SOUTHLAND OIL PARTNERS, INC., Appellants

Defendant: JOHN JAMES JENKINS, Trustee for the Bankruptcy Estate of William D. Brosseau, and CARL JAMESON, App

Preview:G.B. GREINER, JR., H. DAVID TULLOS, and
SOUTHLAND OIL PARTNERS, INC., Appellants v.
JOHN JAMES JENKINS, Trustee for the Bankruptcy
Estate of William D. Brosseau, and CARL JAMESON,
Appellees
AFFIRMED and Opinion filed August 3, 1993.
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-92-00757-CV
G.B. GREINER, JR., H. DAVID TULLOS,
and SOUTHLAND OIL PARTNERS, INC., Appellants
V.
JOHN JAMES JENKINS, Trustee for the Bankruptcy Estate of
William D. Brosseau, and CARL JAMESON, Appellees
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 88-15083-M
OPINION ON MOTION FOR REHEARING
Before Justices Kinkeade, FN:1 Maloney, and Whittington
Opinion By Justice Maloney
We grant appellant motion for rehearing in part and deny in part. We withdraw our opinion and judgment of May
19, 1993. The following is now the opinion of the Court.
Argos Properties, Inc, sued G.B. Greiner, Jr., H. David Tullos, and Southland Oil Partners, Inc. (collectively
Greiner). Greiner counterclaimed against William D. Brosseau, Carl E. Jameson and C. Jameson, Inc. The trial court
entered an agreed judgment for William D. Brosseau FN:2 and Carl Jameson. In four points of error, appellant argues
that the trial court erred in rendering the agreed judgment. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Jury trial began on June 4, 1991. After the first witness testified, the parties reached a settlement agreement and
dictated the agreement into the record pursuant to rule 11. See Tex. R. Civ. P. 11. The parties agreed that Greiner
would pay $20,000 to Brosseau and Jameson and, upon proper documentation, court costs not to exceed $5000. The
parties further agreed that if Greiner did not pay the $20,000 within 120 days, the trial court would enter a $75,000
judgment against Greiner. Additionally, the parties were to dismiss or settle all other pending litigation among the
parties.
Appellants did not pay the agreed amount within 120 days. The trial court rendered judgment against Greiner for
$75,000, less the initial $1500 payment, on November 8th. The judgment also ordered that other litigation involving the
parties be dismissed with prejudice.
On December 6, 1991, appellants moved the trial court to set aside the judgment. Greiner's motion complained
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only that bankruptcy law provisions invalidated the judgment. The trial court overruled Greiner's motion on December
19, 1991. On January 10, 1992, Greiner filed an amended motion to set aside judgment and motion for new trial. The
trial court overruled this motion on January 21, 1992.
WAIVER
In appellant's first point of error, Greiner contends that the trial court erred in rendering the agreed judgment
because one or more parties did not consent at the time of rendition. In its second and third points of error, appellants
argue that the judgment rendered did not conform to the parties' agreement, violated rule 11, and was beyond the trial
court's judicial power.
1. Applicable Law
Rule 329b governs the time for filing motions for new trial and motions to modify, correct, or reform a judgment.
See Tex. R. Civ. P. 329b. A party must file its motion for new trial within thirty days after the trial court signs the
complained-of judgment. If the trial court has not overruled the preceding motion, a party may amend its motion
within that same thirty-day period. Tex. R. Civ. P. 329b(a) & (b); Willacy County Appraisal Review Bd. v. South
Padre Land Co., 767 S.W.2d 201, 202 (Tex. App.--Corpus Christi 1989, no writ); Lynd v. Wesley, 705 S.W.2d 759,
762 (Tex. App.--Houston [14th Dist.] 1986, no writ). The same time limitations apply to the filing of motions to
modify, correct, or reform a judgment. Tex. R. Civ. P. 329b(g). Subdivision (g) of the rule encompasses any
postjudgment motion that, if granted, would result in a substantive change in the judgment. Brazos Elec. Power Coop.,
Inc. v. Callejo, 734 S.W.2d 126, 128 (Tex. App.--Dallas 1987, no writ). Thus, a party must file its amended motion to
modify, correct, or reform a judgment within thirty days after the judgment is signed. Commonwealth Lloyd's Ins. Co.
v. Thomas, 825 S.W.2d 135, 141 (Tex. App.--Dallas 1992) (op. on reh'g), judgment set aside and cause remanded for
rendition of agreed judgment, 843 S.W.2d 486 (Tex. 1993). An untimely filed motion is a nullity. Voth v. Felderhoff,
768 S.W.2d 403, 412 (Tex. App.--Fort Worth 1989, writ denied); Willacy County Appraisal Review Bd., 767 S.W.2d
at 202; Equinox Enter., Inc. v. Associated Media, Inc., 730 S.W.2d 872, 875 (Tex. App.--Dallas 1987, no writ).
To complain on appeal, a party must give the trial court an opportunity to correct its error and provide the relief
requested. Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685, 693 (Tex. App.--Dallas 1987, writ denied).
Appellate rules require that the party complain to the trial court in a timely manner. Tex. R. App. P. 52(a); Thomas,
825 S.W.2d at 141. Failure to inform the trial court of its dissatisfaction with the judgment waives the error. See
Larrumbide, 734 S.W.2d at 693.
2. Application of Law to Facts
Greiner's timely filed motion to set aside judgment asserted only that bankruptcy barred the entry of judgment.
Greiner's amended motion of January 10th raised the allegations that are contained in appellant's first three points of
error. Greiner did not filed its amended motion within thirty days after the trial court signed complained-of judgment.
Additionally, the trial court overruled Greiner's first motion three weeks before Greiner filed its amended motion.
Because Greiner did not timely file its amended motion, Greiner waived any error asserted in its first three points of
error. See Commonwealth Lloyd's, 825 S.W.2d at 141. We overrule the appellant's first, second, and third points of
error.
BANKRUPTCY
In its fourth point of error, Greiner contends that the trial court erred in rendering the "agreed judgment" because
the bankruptcy court did not approve Brosseau, as a debtor in bankruptcy, entering into the settlement agreement.
Greiner argues that the settlement agreement is therefore unenforceable.
1. Applicable Law
Greiner relies on Bankruptcy Rule 9019. The rule states: "On motion by the trustee and after a hearing on notice
to creditors, the United States trustee, the debtor and indenture trustees as provided in Rule 2002 and to such other
entities as the court may designate, the court may approve a compromise or settlement." Bankr. Rule 9019(a). Rule
9019 applies only to proceedings in the bankruptcy court. Bostick Foundry Co. v. Lindberg, a Div. of Sola Basic
Indus., Inc., 797 F.2d 280, 283 (6th Cir. 1986), cert. denied, 479 U.S. 1066 (1987). For rule 9019 to apply, the trustee
must (1) during the pendency of the bankruptcy, (2) enter into a compromise or settlement, (3) which affects the
bankrupt's estate. See In re Continental Airlines Corp., 907 F.2d (5th Cir. 1990); Thompson v. Kowal, 965 F.2d 1136
(1st Cir. 1992).
2. Application of Law to Facts
Greiner misplaces its reliance on Bankruptcy Rule 9019. Neither party disputes that they entered an agreement in
open court on June 4, 1991, and that Brosseau filed for bankruptcy more than four months after the parties reached the
settlement agreement in open court. Appellants cite no authority, nor have we found any, indicating that rule 9019
requires the bankruptcy trustee give retroactive consent to earlier agreements.
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Further, because rule 9019 applies only to bankruptcy procedures in the bankruptcy court, it has no application to
a pre-bankruptcy settlement. Any action taken under rule 9019 must be taken in the bankruptcy proceeding. We
overrule Greiner's fourth point of error.
We affirm the trial court's judgment.
FRANCES MALONEY
JUSTICE
Do Not Publish
Tex. R. App. P. 90
92757HF.U05
FN:1 Justice Kinkeade did not participate in this decision.
FN:2 On motion of John James Jenkins, trustee for the bankruptcy estate of William D. Brosseau, this Court
substituted Jenkins as appellee in this cause.
File Date[08-03-93]
File Name[920757HF]
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