Sunday, February 28, 2010

Appeal from Partial Summary Judgment in Bill-of-Review Proceeding Dismissed for Want of Jurisdiction

First Court of Appeals finds that it does not have jurisdiction to entertain merits of attempted appeal from a partial summary judgment in a bill of review suit, absent proper severance. Bill of review petition in family law dispute challenged two separate orders in a single case, and trial court granted summary judgment only with respect to one, leaving the second one pending and precluding a final judgment from with a regular appeal could properly be taken. No statute otherwise authorized interlocutory appeal from the partial summary judgment order.


Appellant, Marsha Whyte, is appealing the trial court’s grant of appellee’s, Lawrence Robert Whyte’s, motion for partial summary judgment. We dismiss for want of jurisdiction.


When Marsha and Lawrence were divorced in 1998, they were named joint managing conservators of N.W. (trial court cause number 1995-44409). Lawrence subsequently filed a petition seeking to modify custody. He also filed a second, separate, petition for interference with child custody. Both petitions were filed under cause number 1995-44409. In 2001, the trial court granted Lawrence’s first petition, modified the Whytes’ divorce decree and awarded Lawrence full custody of N.W. (“2001 Custody Order”). In 2002, the trial court granted Lawrence’s motion to sever his pending petition for interference with child custody from cause number 1995-44409 and move it into a separate cause number. The next year, the trial court awarded Lawrence monetary damages against Marsha in the severed suit for interference with child custody (“2003 Interference Judgment”).[1] Marsha, who did not enter an appearance in either proceeding, filed an Original Petition for Bill of Review in 2004 (trial court cause number 2004-51912) asking the trial court to set aside both the 2001 Custody Order and the 2003 Interference Judgment. Three years later, in 2007, she filed her First Amended Petition for Bill of Review, which is substantively identical to her original petition. Lawrence then filed a motion for partial summary judgment in the Bill of Review case with respect to the 2003 Interference Judgment only. On August 8, 2008, the trial court granted Lawrence’s motion for partial summary judgment. Marsha is now attempting to appeal that order. Lawrence has filed a motion to dismiss Marsha’s appeal for lack of jurisdiction.


As a preliminary matter, we address whether this court has jurisdiction with respect to Marsha’s appeal of the trial court’s granting of Lawrence’s motion for partial summary judgment in her bill of review case. A bill of review is an independent, equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “[A] bill of review is a separate proceeding from the underlying suit.” Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (per curiam). Accordingly, we evaluate our jurisdiction over this appeal with respect to the bill of review itself, rather than the underlying suit. See In re L.N.M., 182 S.W.3d 470, 474 (Tex. App.—Dallas 2006, no pet.) (holding that appellate court jurisdiction with respect to appeal of denial of bill of review seeking to set aside termination order is to be determined under general rules of appellate procedure).

With few exceptions, an appeal may only be taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there has been no conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and parties. Id. at 205. Here, the August 8, 2008 order being appealed granted Lawrence’s motion for partial summary judgment with respect to the 2003 Interference Judgment only; the order did not dispose of, nor did it state that it disposed of, Marsha’s claim with respect to the 2001 Custody Order.

Marsha contends that the August 8, 2008 order is a final order with respect to the 2003 Interference Judgment and that severance of her 2001 Custody Order claim is unnecessary to render the order final because the 2003 Interference Judgment cause of action had already been severed (2002) from the 2001 Custody Order cause of action. Although both the 2003 Interference Judgment and the 2001 Custody Order are final and were appealable at the time they were issued, Marsha is not attempting to directly appeal either of these judgments. Instead, Marsha is attempting to have both set aside through a separate, independent proceeding—a bill of review. See King Ranch, Inc., 118 S.W.3d at 751. While Marsha could have filed separate bills of review, she chose instead to combine her challenges to both the 2003 Interference Judgment and the 2001 Custody Order together into one bill of review (trial court cause number 2004-51912). In doing so, she filed a single petition that raised two separate claims. Although an order disposing of one of those two claims is interlocutory, it may be rendered final if the disposed of claim is later severed. The record before us reflects that there has been no severance of the two claims raised in this bill of review proceeding (trial court cause number 2004-51912) and no disposition of Marsha’s remaining cause of action for a bill of review relating to the 2001 Custody Order. Accordingly, the August 8, 2008 order is a non-appealable, interlocutory order.

Appellant does not cite, nor have we found, any statutory basis for our jurisdiction to consider her interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2009) (listing interlocutory orders from which interlocutory appeal may be taken); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (holding that Texas appellate courts only have appellate jurisdiction over appeals from final orders or judgments, unless statute permits appeal from interlocutory order). Accordingly, we do not have jurisdiction to consider this appeal. See Tex. R. App. P. 42.3(c) (allowing involuntary dismissal of appeal for lack of jurisdiction upon party’s motion).

We grant Lawrence’s motion to dismiss.

Whyte v. Whyte (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Sharp)
bill of review, partial summary judgment, no interlocutory appellate jurisdiction)
Justice Sharp
Before Justices Keyes, Sharp and Massengale
01-08-00834-CV Marsha Whyte v. Lawrence Whyte
Appeal from 247th District Court of Harris County
Trial Court Judge: Hon.
Bonnie Hellums

TAGS: Dismissal for want of jurisdiction (DWOJ) | interlocutory appeal not authorized |

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