April Small, Individually and on Behalf or Her Minor Child, E. C. v. Mario Garcia

• Court: Court of Appeals of Texas
• Decided: July 23, 2019
• Docket: 01-18-00710-CV
• Status: Published

Opinion

Opinion issued July 23, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00710-CV ——————————— APRIL SMALL, INDIVIDUALLY AND ON BEHALF OR HER MINOR CHILD, E.C., Appellant V. MARIO GARCIA, Appellee

On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2018-22535

MEMORANDUM OPINION

April Small challenges the trial court’s rendition of summary judgment in

favor of Mario Garcia in Garcia’s bill-of-review proceeding to set aside a default

judgment against Garcia. In a single issue, Small contends the trial court erred in

granting summary judgment in favor of Garcia because Small’s summary-judgment evidence conclusively establishes that the process server served Garcia with process.

We dismiss the appeal for want of jurisdiction.

Background

A. The underlying case

In the underlying case, a dog charged from a home and bit E.C., Small’s minor

child, causing severe injuries to E.C. Small, on behalf of E.C., sued Garcia, as the

alleged homeowner, for negligence, negligence per se, and gross negligence.

Garcia did not timely file an answer to Small’s petition. On May 11, 2017, the

trial court entered an interlocutory default judgment on liability in Small’s favor. On

this same date, Garcia learned about this lawsuit and immediately filed an answer

and a motion to set aside the judgment. The following day, the trial court overruled

the motion and signed a default judgment awarding $930,000 and post-judgment

interest to Small.

The parties dispute whether Garcia was served with process. Reginald Branch,

a licensed process server, executed a return of process for Garcia, stating that he

personally delivered the citation to Garcia’s wife at his residence, and specifying a

time he did so. But, Garcia contends that he was not at home at that time. In his

affidavit, Garcia explained that he had been at Home Depot renting a tiller.

2 B. The bill-of-review proceeding

Garcia filed a bill of review alleging that he had never received notice of the

underlying suit or been served with process. Garcia then moved for traditional

summary judgment and no-evidence summary judgment in the bill-of-review

proceeding and argued that the default judgment against him was void because he

was not served with process. Garcia attached evidence to his motions to show that

he was not at his residence when Branch claimed to have served Garcia. Small filed

a response opposing Garcia’s motions and attached rebuttal evidence.

Ultimately, the trial court granted Garcia’s summary judgment motions, set

aside the default judgment in the underlying case, and ordered all issues in the

underlying action to be tried. This appeal followed.

C. Jurisdictional inquiry

The order being appealed is an interlocutory grant of judgment in Garcia’s

favor on his bill of review. This court has an independent obligation to determine

whether we have jurisdiction to decide appeals filed with the court. See M.O. Dental

Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). The summary-judgment

order is an unappealable interlocutory order. On June 25, 2019, the court sent a letter

to the parties inquiring about our jurisdiction and requested jurisdictional briefing

from the parties. We cautioned the parties that failure to demonstrate the existence

of the Court’s jurisdiction would result in dismissal of the appeal without further

3 notice. To date, the parties have not responded. As explained below, we have

determined we do not have appellate jurisdiction.

Analysis

“A bill of review which sets aside a prior judgment but does not dispose of all

the issues of the case on the merits is interlocutory in nature and is not a final

judgment appealable to the court of appeals or the supreme court.” Kiefer v. Touris,

197 S.W.3d 300, 302 (Tex. 2006) (quoting Tesoro Petroleum v. Smith, 796 S.W.2d

705 (Tex. 1990) (per curiam)). Interlocutory orders are not generally appealable,

subject to certain exceptions. TEX. CIV. PRAC. & REM. CODE § 51.014(a). The grant

of a bill of review is not one of the interlocutory orders permitted to be appealed

under Section 51.014(a) of the Civil Practice and Remedies Code. See id.

Small prematurely appealed this interlocutory order before the trial court

determined the rights of the parties and disposed of all the issues of the case on the

merits. See W. Columbia Nat. Bank v. Griffith, 902 S.W.2d 201, 204 (Tex. App.—

Houston [1st Dist.] 1995, writ denied). In Griffith, the appellee filed a bill of review

seeking to overturn a default judgment. Id. at 203. The trial court granted the bill of

review in part, set aside the default judgment, and ordered a trial on the merits. Id.

On appeal, the court held that the order granting the bill of review was interlocutory

and not subject to appeal because it did not dispose of the underlying case on the

merits. Id. at 204 (citing Tesoro Petroleum, 796 S.W.2d at 705).

4 Here, the order granting summary judgment in a bill-of-review proceeding is

not final and appealable because the trial court ordered a trial and has not yet

disposed of the underlying case on the merits. See, e.g., Patrick O’Connor &

Assocs., L.P. v. Wang Inv. Networks, Inc., No. 01-12-00615-CV, 2013 WL 1451358,

at *1 (Tex. App.—Houston [1st Dist.] Apr. 9, 2013, no pet.) (“It is a well-established

rule in Texas that if a judgment rendered in a bill of review proceeding does not

dispose of the entire controversy, it is interlocutory in nature and not a final judgment

from which an appeal will lie.”). Indeed, the order states that “[t]he issues in the

underlying case will be tried in this cause number.” About a month after the trial

court entered the order, Small filed this appeal before the trial court adjudicated all

the issues. Under these circumstances, the order is interlocutory in nature, and not

listed in Section 51.014(a) as an appealable interlocutory order. Therefore, the order

granting summary judgment in this bill-of-review proceeding was not final and

appealable, and this court lacks jurisdiction.

Conclusion

Because Small challenges an unappealable order, we have no jurisdiction over

the appeal. For these reasons, we dismiss this appeal for want of jurisdiction.

PER CURIAM Panel consists of Justices Lloyd, Landau, and Countiss.