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Cooper v. Hamilton County

Court of Appeals of Texas, Tenth District

January 30, 2014

JAY S. COOPER, Appellant

From the 220th District Court Hamilton County, Texas Trial Court No. CV04910

Before Chief Justice Gray, Justice Davis, and Justice Scoggins


TOM GRAY Chief Justice

In 2010, Jay S. Cooper brought suit against Hamilton County, Hamilton Independent School District, City of Hamilton, Hamilton Hospital District, and Hamilton Appraisal District (collectively referred to as Hamilton) to void a tax lien and foreclosure judgment rendered by the 220th District Court in Hamilton County, Texas in 2005 against property located in Hamilton County (the Property), set aside the 2009 tax foreclosure sale and declare it void, and cancel the Sheriff's deed of the Property. After a bench trial on the merits, the trial court determined that the tax judgment was not void, the foreclosure sale was valid, and the Sheriff's tax deed was valid. Cooper appealed, raising eight issues as to why the trial court erred in its determination. Because the judgment was not void, and the sale and deed were valid, the trial court's judgment is affirmed.


In 1998, Cooper's grandmother, Jerolene Hubbard, under duress from Cooper, executed the Jerolene Hubbard Irrevocable Trust and named Cooper the trustee. There were several pieces of property conveyed to Cooper as the trustee. The Property was also conveyed at about the same time to Cooper.[2] The next year, Hubbard petitioned a Dallas County district court, in cause number DV99-07903, for a temporary injunction enjoining Cooper from, among other things, selling or collecting rents on any of the trust property, specifically including the Property at issue in this suit. A temporary injunction was granted, and William Cochran was appointed as a receiver/temporary trustee. This Dallas County suit was eventually resolved but we do not have a copy of that judgment in the record.[3]

Starting for the year 2000, Cooper never attempted to pay the taxes on the Property. In 2003, Hamilton sought a tax judgment and foreclosure as to the Property and Cooper was named as a defendant. After a default judgment was issued in favor of Hamilton, Hamilton realized it had not joined Hubbard or Cochran in the tax suit and moved the trial court to vacate the judgment. The motion was granted. In 2005, Hamilton again sought a tax judgment and foreclosure as to the Property. Cooper and a representative of Hubbard appeared, but Cochran failed to appear. Judgment was rendered for Hamilton.

Also in 2005, Cooper filed a lawsuit in Dallas County, cause number 05-11916, against Cochran and other parties. The Dallas County trial court issued a temporary injunction in 2007, preventing Hamilton from selling the Property until a final order was issued on the trial on the merits of Cooper's claims. The next month, a final judgment against Cooper was rendered in Dallas County. Hamilton then sold the Property in 2009 at a tax sale. The Hamilton Hospital District purchased the Property for the amount of the taxes due.

Collateral Attack-Void Judgments

Cooper previously appealed both the 2003 judgment, which was dismissed after the trial court vacated the judgment, and the 2005 judgment, which was affirmed. Cooper v. Hamilton County, No. 10-05-00315-CV, 2006 Tex.App. LEXIS 9377 (Tex. App.—Waco Oct. 18, 2006, no pet.) (mem. op.); Cooper v. Hamilton County, No. 10-03-00283-CV, 2003 Tex.App. LEXIS 10913 (Tex. App.—Waco Dec. 31, 2003, no pet.) (mem. op.). He now attempts to collaterally attack the 2005 judgment, 2009 tax sale, and Sheriff's deed as void.

A litigant may attack a void judgment directly or collaterally, but a voidable judgment may only be attacked directly. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012); Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009); Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex. App.—Austin 2000, no pet.). A void judgment, on the other hand, can be collaterally attacked at any time. Id. at 272. After the time to bring a direct attack has expired, a litigant may only attack a judgment collaterally. PNS Stores, Inc., 379 S.W.3d at 272.

The distinction between void and voidable judgments is critical when the time for a direct attack has expired. Id. If a party challenges a judgment as void, the first inquiry should necessarily be whether the alleged defect renders the judgment void or merely voidable. Id. fn. 8. A judgment is void when "the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act." Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (quoting Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). When attacked collaterally, a judgment is presumed valid. PNS Stores, Inc., 379 S.W.3d at 273; Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994). All errors other than jurisdictional deficiencies render the judgment merely voidable, and such errors must be corrected on direct attack. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). If the challenged judgment is only voidable, as opposed to void, the collateral attack fails. See Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009); Gainous v. Gainous, 219 S.W.3d 97, 105 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A party making a collateral attack on a judgment has the burden of showing from the four corners of the judgment that the court did not have jurisdiction to issue the order. See Foreness v. Hexamer, 971 S.W.2d 525, 531-532 (Tex. App.—Dallas 1997, pet. denied).

Voidable vs. Void

Because Cooper has already directly attacked the 2005 judgment, our first inquiry is whether the defects alleged by Cooper in this appeal render that judgment void or merely voidable. Although Cooper represented himself at trial and is representing himself on appeal, he is not new to the process and should know that he has the burden to show the judgment is void. We find that several of Cooper's alleged defects in the judgment are easily disposed as impermissible collateral ...

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