in the Interest of A. J. R., a Child ( 2015 )

NUMBER 13-15-00545-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF A.J.R., A CHILD
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion Per Curiam
Appellant, A.J.R., a child, attempted to perfect an appeal from a judgment entered
by the 430th District Court of Hidalgo County, Texas, in trial court cause number F-2632-
14-J, granting a bill of review. We dismiss the appeal for want of jurisdiction.
I. BACKGROUND
According to the documents filed in this appeal, Adan Acuna, the biological father
of appellant, filed a bill of review regarding a judgment rendered in the underlying
proceedings. On October 27, 2015, the trial court granted Acuna’s bill of review and
ordered “that the Department of Family and Protective Services shall take whatever action
is necessary to include [Acuna] as the biological father to the child and to give him process
that is due him.”
This appeal ensued.
On November 24, the Clerk of this Court notified appellant that it appeared that the
October 27, 2015 order granting the bill of review was not final and appealable. Appellant
was advised that the appeal would be dismissed if the defect was not corrected within ten
days from the date of receipt of the Court’s directive. In response, appellant filed a motion
to abate this appeal. Appellant asserts that it has filed an expected motion for clarification
of the trial court’s order because the order “appears not to be a final order.” Appellant
requests that we abate this appeal “until a clarification hearing is held with the trial court.”
II. LAW AND ANALYSIS
After the trial court's plenary jurisdiction has expired, it cannot set aside a judgment
except through a timely-filed bill of review for sufficient cause. TEX. R. CIV. P. 329b(f); In
re Parker, 117 S.W.3d 484, 486–87 (Tex. App.—Texarkana 2003, orig. proceeding). To
be entitled to relief on a bill of review, the bill of review petitioner must plead and prove:
(1) a meritorious defense; (2) that he or she was prevented from making “due to fraud,
accident, or wrongful act” of his opponent; and (3) that the failure to appear was “unmixed
with any fault or negligence” of his or her own. Ross v. Nat'l Ctr. for the Emp't of the
Disabled, 197 S.W.3d 795, 797 (Tex. 2006) (per curiam). While it is true that a party that
is not served with process is entitled to a bill of review without further showing, a bill of
review is a separate proceeding from the underlying suit that must be pled by the bill of
review petitioner. See id. A bill of review which sets aside a prior judgment, but does not
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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) (per curiam); Tesoro Petroleum v. Smith, 796 S.W.2d
705, 705 (Tex. 1990) (per curiam).
The order subject to appeal in this case is of the same nature as the one addressed
by the Texas Supreme Court in Tesoro. See Tesoro Petroleum, 796 S.W.2d at 705. In
Tesoro, the supreme court held that an order granting a bill of review, setting aside a
summary judgment, and ordering a trial on the merits was interlocutory in nature. See id.
In this case, the trial court’s order grants the bill of review and directs the Department of
Family and Protective Services to include Acuna in the suit, but does not dispose of the
issues on the merits in the case. Therefore, the order is interlocutory in nature and is not
a final, appealable judgment. See id.; see also 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.) (mem. op.). Consequently, we lack jurisdiction over this
appeal.
III. CONCLUSION
The Court, having examined and fully considered the documents on file, is of the
opinion that we lack jurisdiction over this appeal. Accordingly, we DENY appellant’s
motion to abate and we DISMISS the appeal FOR WANT OF JURISDICTION. See TEX.
R. APP. P. 42.3(a). All other pending motions, if any, are likewise DISMISSED.
PER CURIAM
Delivered and filed the
17th day of December, 2015.
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