in Re Patrick O'Connor & Associates, L.P. and Gulf Apartment Investors, L.P. ( 2013 )

Opinion issued April 9, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00615-CV
NO. 01-12-00976-CV
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PATRICK O'CONNOR & ASSOCIATES, L.P. AND GULF APARTMENT
INVESTORS, L.P., Appellants
V.
WANG INVESTMENT NETWORKS, INC., Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1006809
and
IN RE PATRICK O'CONNOR & ASSOCIATES, L.P. AND GULF
APARTMENT INVESTORS, L.P., Relators
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
In this interlocutory appeal and companion petition for writ of mandamus,
Patrick O’Connor & Associates, L.P. and Gulf Apartment Investors, L.P. challenge
the trial court’s order granting Wang Investment Networks, Inc.’s petition for bill
of review and setting aside the no-answer default judgment against Wang. We
hold that we lack jurisdiction over the appeal, and we deny the petition for writ of
mandamus.
Background
The underlying lawsuit regards the property-tax reduction services provided
by Patrick O’Connor & Associates (the “Firm”) for Wang’s commercial property
in Downtown Houston. The Firm alleges that Wang owes more than $64,000 in
contingent fees due to the Firm’s success in reducing Wang’s property-tax value;
Wang alleges that it only agreed to a $13,000 flat fee for the Firm’s services.
The Firm filed suit to recover the amount allegedly owed by Wang. Because
Wang failed to answer the lawsuit, the trial court rendered a default judgment in
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the Firm’s favor. The Firm then obtained a writ of execution on the judgment, and
the Harris County Constable conducted a constable’s sale of the property. At the
constable’s sale, Gulf Apartment Investors―a company having the same principal
place of business and registered address as the Firm but over which the Firm
claims not to exercise control or have an ownership interest―purchased Wang’s
property for around $11,000. According to Wang, the fair market value of the
property was $8 million.
After the constable’s sale, Wang petitioned the trial court for a bill of review
on the ground that the Firm failed to properly serve Wang. The trial court granted
Wang’s bill of review, set aside the default judgment, vacated and declared void all
abstracts of judgment and writs of execution, and ordered the parties to revert to
their original status as plaintiff and defendant on the Firm’s claim for unpaid fees.
The Firm filed a motion for new trial, which the trial court denied.
The Firm now seeks either appellate or mandamus relief from the trial
court’s order granting the bill of review.
Analysis
It is a well-established rule in Texas that if a judgment rendered in a bill of
review proceeding does not dispose of the entire controversy, it is interlocutory in
nature and not a final judgment from which an appeal will lie. See Tesoro
Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex. 1990) (per curiam); Shahbaz v.
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Feizy Import & Export Co., 827 S.W.2d 63, 64 (Tex. App.—Houston [1st Dist.]
1992, no writ). Because the trial court’s order does not purport to dispose of the
claims between the parties, we dismiss the Firm’s interlocutory appeal for lack of
jurisdiction. See Jordan v. Jordan, 907 S.W.2d 471, 471 (Tex. 1995) (per curiam)
(concluding that court of appeals lacked jurisdiction to review order setting aside
prior judgment on petition for bill of review but not disposing of case on merits).
We turn to the Firm’s request for mandamus relief. Simply because an
interlocutory order is not appealable does not mean that mandamus will lie to
review it. “As a general rule, mandamus does not lie to correct incidental trial court
rulings when there is a remedy by appeal.” In re Entergy Corp., 142 S.W.3d 316,
320 (Tex. 2004) (orig. proceeding); see Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding). Certainly, the granting of a bill of review can be
reviewed as part of a final, appealable judgment. “[T]he mere cost and delay of
pursuing an appeal will not, in themselves, render appeal an inadequate alternative
to mandamus review.” Entergy, 142 S.W.3d at 321. Nonetheless, “incidental trial
court rulings can be corrected by writ of mandamus” when “special, unique
circumstances mandate[ ] [an appellate court’s] intervention.” Id.; see In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135−36 (Tex. 2004) (orig.
proceeding). What constitutes such special and unique circumstances is determined
by a “careful balance of jurisprudential considerations” that seeks to answer
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whether “any benefits to mandamus review are outweighed by the
detriments”―for example, in “exceptional cases” in which mandamus review is
needed to (1) “preserve important substantive and procedural rights from
impairment or loss,” (2) “allow appellate courts to give needed and helpful
direction to the law that would otherwise prove elusive in appeals from final
judgments,” or (3) “spare private parties and the public the time and money utterly
wasted enduring eventual reversal of improperly conducted proceedings.”
Prudential, 148 S.W.3d at 136.
As the Firm points out, there is a split of authority among the courts of
appeals as to whether mandamus will lie to review the interlocutory granting of a
bill of review. Compare In re Pollo Gordo, Inc., 373 S.W.3d 107, 109−10 (Tex.
App.—San Antonio 2012, orig. proceeding) (holding that mandamus will lie to
review interlocutory grant of bill of review), In re Spiller, 303 S.W.3d 426, 431
(Tex. App.—Waco 2010, orig. proceeding) (same), and Schnitzius v. Koons, 813
S.W.2d 213, 218 (Tex. App.—Dallas 1991, orig. proceeding) (same), with In re
Moreno, 4 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 1999, orig.
proceeding) (holding that mandamus will not lie to review interlocutory grant of
bill of review), Tex. Mex. Ry. Co. v. Hunter, 726 S.W.2d 616, 617−18 (Tex.
App.—Corpus Christi 1987, orig. proceeding) (same), Stettner v. Apollo Paint &
Body Shop, Inc., Nos. 01-02-00667-CV & 01-02-00204-CV, 2002 WL 1586282, at
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*1 (Tex. App.—Houston [1st Dist.] July 18, 2002, orig. proceeding, no pet.)
(combined mandamus and appeal) (not designated for publication) (same); Ott v.
Files, No. 03-00-00612-CV, 2000 WL 1675737, at *1 (Tex. App.—Austin Nov. 9,
2000, no pet.) (not designated for publication) (same, in dictum). However, the
general rule stated by both this Court and our sister court in Houston is that an
interlocutory order granting a bill of review may not be reviewed by mandamus,
but by appeal of the eventual final judgment in the case. See Moreno, 4 S.W.3d at
281; Stettner, 2002 WL 1586282, at *1 (denying mandamus relief on the ground
that “[t]he interlocutory nature of an order granting a bill of review does not render
the granting of the bill of review unappealable[ ] because there is an adequate
remedy by appeal when the judgment of the trial court becomes final. Thus,
[relator] has an adequate remedy by appeal.”).
This Court has recognized only one exception to the general rule that the
interlocutory grant of a bill of review is not subject to mandamus review. In the
context of a paternity suit in which genetic testing was ordered before retrial in a
bill of review proceeding, the Court determined that the parameters of what
constitutes an inadequate remedy by appeal were satisfied. See In re Office of Atty.
Gen., 276 S.W.3d 611, 621 (Tex. App.—Houston [1st Dist.] 2008, orig.
proceeding). The Court reasoned, “[O]nce the [paternity] test results are divulged,
the information they contain cannot be retracted, any resulting harm to the child
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may be irreparable. The benefits to mandamus review in this context thus outweigh
the detriments.” Id. at 622.
Clearly, this is not a paternity suit in which genetic testing has been ordered.
The Firm has not alleged any special or unique circumstance beyond the mere
expense and delay of trial that justifies this Court’s intervention in the trial court
proceedings. Nor has the Firm alleged that important substantive or procedural
rights will be lost absent this Court’s intervention or that this case involves an area
of law in which the guidance of an appellate court is needed. In the absence of such
allegations or briefing establishing that the benefits of mandamus review outweigh
its detriments, we follow our precedent and our sister court’s precedent and hold
that mandamus will not lie because the Firm has an adequate remedy by appeal of
the eventual final judgment in the underlying case. See Stettner, 2002 WL
1586282, at *1; Moreno, 4 S.W.3d at 281.
Conclusion
Because an order granting a bill of review is not one for which we have
interlocutory jurisdiction, we dismiss the interlocutory appeal. We deny the
mandamus petition because the Firm has an adequate remedy at law.
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Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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