B. Elliott Zirkle and Kay Lambert v. Thomas L. Hendrick and Ione Hendrick ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-376-CV





B. ELLIOTT ZIRKLE AND KAY LAMBERT,

APPELLANTS

vs.





THOMAS L. HENDRICK AND IONE HENDRICK,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 93-10253, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

Appellants B. Elliott Zirkle and Kay Lambert (collectively "Zirkle") appeal from an order of the district court of Travis County granting appellees Thomas L. Hendrick and Ione Hendrick's equitable bill of review. Because the order appealed from is interlocutory, we will dismiss the appeal for want of jurisdiction.

The Hendricks filed the petition for bill of review ⁽¹⁾ to set aside a judgment confirming an arbitration award against them and in favor of Zirkle. On Zirkle's motion, the trial court submitted the cause underlying that judgment to arbitration. In their petition for bill of review, the Hendricks allege that they did not receive notice of the arbitration hearing, did not attend the hearing, did not receive notice of the trial-court hearing on confirmation of the arbitration award, and did not receive notice of the rendition of judgment against them for damages of $45,000.00 and attorney's fees of $17,701.95. The Hendricks assert that they first learned of the judgment when served with a writ of execution.

After a hearing, the trial court rendered its order granting the Hendricks' petition for bill of review and setting aside the previous judgment and the arbitration award underlying that judgment. The judgment orders the claims in the original cause to arbitration and directs the parties to return to the trial court after arbitration for rendition of judgment based upon the arbitration award. This order underlies the appeal before this Court.

The order, however, is not a final and appealable judgment because it does not dispose of all the claims before the trial court. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (West 1986); New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990); North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). A final judgment in a bill of review proceeding should either deny any relief to the petitioner or grant the bill of review, set aside the former judgment, and render a new judgment that adjudicates the entire controversy. Texas Employers' Ins. Ass'n v. Arnold, 88 S.W.2d 473, 474 (Tex. 1935); Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.). Only one final judgment may be rendered in a bill of review proceeding. Tex. R. Civ. P. 301; Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979); see Turner v. Nesby, 848 S.W.2d 872, 873 n.1 (Tex. App.--Austin 1993, no writ).

Zirkle contends that the judgment here is final because it "not only sets aside the earlier judgment confirming the arbitration award, but actually determined that the arbitration decision was unenforceable and ordered the parties back to arbitration." ⁽²⁾ Zirkle states that the issue in the original lawsuit was the enforceability of the arbitration award. Because the trial court has again ordered arbitration, nothing remains for the trial court to determine.

We disagree. The claims at issue in the original lawsuit are now unresolved. See Baker, 582 S.W.2d at 409 (when trial court grants bill of review, bill of review defendant assumes burden to prove his original cause of action); Kessler, 693 S.W.2d at 526 (bill of review proceeding contemplates a re-examination of entire case and rendition of judgment that disposes of all issues raised in original trial and bill of review). This situation is not distinguishable from one in which a trial court orders separate hearings on the two elements of the bill of review proceeding. See Warren v. Walter, 414 S.W.2d 423, 424 (Tex. 1967); Kessler, 693 S.W.2d at 526. In fact, the order directs the parties to return to the trial court for rendition of a judgment based on the arbitration award.

With certain exceptions not applicable here, an appellate court has jurisdiction only over appeals from final judgments. Sanchez, 799 S.W.2d at 678-69; Aldridge, 400 S.W.2d at 895. Because the order appealed from does not resolve all of the issues before the trial court, it is interlocutory. Accordingly, we dismiss the appeal for want of jurisdiction.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: August 31, 1994

Do Not Publish

1. ¹ A bill of review is an equitable proceeding brought by a party to a prior action to set aside a trial-court judgment that is no longer subject to a motion for new trial or to appeal. Tex. R. Civ. P. 329b(f); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Cherry v. Altman, 872 S.W.2d 46, 47 (Tex. App.--Fort Worth 1994, writ denied).

2. ² On receipt of the transcript, the Clerk of this Court referred the matter to the Court which requested Zirkle to address the question of the finality of the judgment. See Tex. R. App. P. 56(a), 58(b), 60(a)(2).