Ernest Mungia v. via Metropolitan Transit

Opinion

s

Fourth Court of Appeals San Antonio, Texas September 24, 2013

No. 04-13-00549-CV

Ernest MUNGUIA, Appellant

v.

VIA METROPOLITAN TRANSIT, Appellee

From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 380931 Honorable Irene Rios, Judge Presiding

ORDER Via Metropolitan Transit filed a petition for a bill of review, seeking to set aside a default judgment obtained against it by Ernest Munguia. On April 23, 2013, the trial court signed a judgment granting the bill of review, setting aside the judgment against Via Metropolitan Transit, and awarding attorney’s fees to Via Metropolitan Transit. Munguia seeks to appeal the April 23, 2013 judgment.

An order in a bill of review proceeding that sets aside the prior judgment, but does not dispose of underlying case is interlocutory and not appealable. Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). For a judgment in a bill of review proceeding to be final, it “must either (1) deny the complainant any relief or (2) grant the bill of review, set aside the former judgment, and substitute a new judgment disposing of the entire controversy.” Kessler v. Kessler, 693 S.W.2d 522, 525-27 (Tex. App.BCorpus Christi 1985, writ ref=d n.r.e.); see Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588, 590-91 (Tex. App.—Fort Worth 2003, no pet.). It does not appear from the record before us that the trial court has disposed of the merits of the original action.

We therefore order a response showing cause why this appeal should not be dismissed for want of jurisdiction. The response is due October 9, 2013. If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed. See Tex. R. App. P. 42.3(c). If a supplemental clerk’s record is required, appellants must ask the trial court clerk to prepare one and must notify the clerk of this court that such a request was made. All deadlines in this matter are suspended until further order of the court.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 24th day of September, 2013.

___________________________________ Keith E. Hottle Clerk of Court