Savanna Fazzolari v. Beverly Fazzolari and Michael George Suniga

• Court: Texas Court of Appeals, 1st District (Houston)
• Decided: April 28, 2026
• Docket: 01-26-00019-CV
• Status: Published

Opinion

Opinion issued April 28, 2026

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-26-00019-CV ——————————— SAVANNA FAZZOLARI, Appellant V. BEVERLY FAZZOLARI, Appellee

On Appeal from the 505th District Court Fort County, Texas Trial Court Case No. 17-DCV-246072

MEMORANDUM OPINION

Appellant, Savanna Fazzolari, filed a notice of appeal of the trial court’s

October 21, 2025 order denying her motion to vacate for fraud on the court. We

dismiss the appeal for lack of jurisdiction. On September 10, 2025, Fazzolari filed a motion to vacate the trial court’s

previous December 20, 2018 and May 30, 2019 orders “due to fraud upon the court.”

On October 21, 2025, the trial court signed an order denying Fazzolari’s motion to

vacate. Fazzolari’s notice of appeal, filed on January 6, 2026, stated that she sought

to appeal the trial court’s order denying her motion to vacate.

Unless specifically authorized by statute, Texas appellate courts have

jurisdiction only to review final judgments. McFadin v. Broadway Coffeehouse,

LLC, 539 S.W.3d 278, 283 (Tex. 2018). “An order denying a motion to vacate is

not independently appealable.” Anassi v. Off. of Att’y Gen. of Tex., No.

01-21-00296-CV, 2021 WL 4733235, at *1 (Tex. App.—Houston [1st Dist.] Oct.

12, 2021, no pet.) (mem. op.); see also Jenkins v. Jenkins, No. 02-23-00228-CV,

2024 WL 3611005, at *4 (Tex. App.—Fort Worth Aug. 1, 2024, no pet.) (mem. op.);

Blank v. Nuszen, No. 01-18-00379-CV, 2019 WL 3783326, at *1 (Tex. App.—

Houston [1st Dist.] Aug. 13, 2019, no pet.) (mem. op.). “Motions to vacate are

generally considered direct attacks that must be filed within thirty days of a final

judgment, even when the judgment is void.” In re Benavides, 605 S.W.3d 234, 239

(Tex. App.—San Antonio 2020, pet. denied).

Fazzolari’s motion to vacate the trial court’s December 20, 2018 and May 30,

2019 orders “due to fraud upon the court” was an untimely direct attack on the trial

court’s previous orders. See, e.g., In re N.W., No. 12-25-00340-CV, 2025 WL

2 3724368, at *1 (Tex. App.—Tyler Dec. 23, 2025, no pet.) (mem. op.). Further, we

cannot construe Fazzolari’s notice of appeal as a bona fide attempt to appeal the trial

court’s December 20, 2018 and May 30, 2019 orders because the notice of appeal

was filed too late to confer jurisdiction on this Court. See TEX. R. APP. P. 25.1(b)

(filing timely notice of appeal invokes appellate court’s jurisdiction); TEX. R. APP.

P. 26.1(a) (requiring notice of appeal to be filed within thirty days after judgment is

signed or within ninety days if party timely files motion for new trial); Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (once time has passed for extending

deadline for filing notice of appeal, party can no longer invoke appellate court’s

jurisdiction); Anassi, 2021 WL 4733235, at *1 (this Court could not construe

appellant’s notice of appeal from denial of his motion to vacate “as a bona fide

attempt to appeal from the final judgment” because “notice of appeal was filed too

late to confer jurisdiction on this Court”).

On March 10, 2026, the Clerk of this Court notified Fazzolari that the Court

may dismiss her appeal for lack of jurisdiction unless she timely filed a response

demonstrating that the Court had jurisdiction over her appeal. See TEX. R. APP. P.

42.3(a).

In her response, Fazzolari reiterated that her intention was to appeal the trial

court’s October 21, 2025 order denying her motion to vacate the trial court’s

previous December 20, 2018 and May 30, 2019 orders. However, as noted above,

3 “[a]n order denying a motion to vacate is not [an] independently appealable [order].”

Anassi, 2021 WL 4733235, at *1.

Further, we note that Fazzolari mentioned a bill of review in her response,

although it is unclear whether Fazzolari is asking this Court to construe her motion

to vacate as a petition for bill of review and the trial court’s October 21, 2025 order

as an order denying a petition for bill of review. See Roberts v. Roberts, 646 S.W.3d

56, 59 (Tex. App.—San Antonio 2022, pet. denied) (“[A]n order denying a bill of

review is a final, appealable order”).

However, a bill of review is a new suit filed in the same court rendering the

original judgment, and it must be verified. In re D.L.S., No. 05-08-00173-CV, 2009

WL 1875579, at *3 (Tex. App.—Dallas July 1, 2009, no pet.) (mem. op.). To invoke

the equitable powers of the court, a petitioner asking for a bill of review must allege

and present prima facie proof: (1) that she has a meritorious claim or defense; (2) that

she was prevented from asserting by fraud, accident, or wrongful act of the opposite

party or official mistake; and (3) without any fault or negligence of her own. Id. A

petitioner claiming non-service is relieved of proving the first two elements in her

bill-of-review proceeding. Id.

We conclude that the record does not support construing Fazzolari’s motion

to vacate as a bill of review. Even if Fazzolari is relieved of providing the first two

elements for a bill of review, her motion was not verified, did not set out the third

4 required element, and did not purport to initiate a new suit.1 See, e.g., Staten v. FIA

Card Servs., NA, No. 05-25-00817-CV 2026 WL 884725, at *1–2 (Tex. App.—

Dallas Mar. 31, 2026, no pet. h.) (mem. op.); In re B.L.P., No. 05-11-00470-CV,

2012 WL 6200707, at *1 (Tex. App.—Dallas Dec. 12, 2012, no pet.) (mem. op.)

(declining to construe motion to modify as petition for bill of review where motion

was not filed as independent proceeding, did not purport to set out prima facie

requirements for bill of review, and was summarily dismissed by trial court); Urso

v. Lyon Fin. Servs., Inc., 93 S.W.3d 276, 280 (Tex. App.—Houston [14th Dist.]

2002, no pet.) (appellate court could not consider appellant’s response to application

for turnover as bill of review where “it d[id] not meet two primary criteria for a bill

of review: (1) a verified, (2) new, independent suit”).

Based on record, the order Fazzolari seeks to appeal is a non-appealable order

denying her motion to vacate for fraud on the court. As such, we hold that we lack

jurisdiction over her appeal.

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.

PER CURIAM Panel consists of Chief Justice Adams and Justices Guerra and Guiney.

1 In her response, Fazzolari did not assert that she had met the requirements of a bill of review.