Tom Retzlaff v. Belinda Mendieta-Morales

i i i i i i
MEMORANDUM OPINION
No. 04-09-00582-CV
Tom RETZLAFF,
Appellant
v.
Belinda MENDIETA-MORALES,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 345077
Honorable David J. Rodriguez, Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: December 9, 2009
DISMISSED FOR LACK OF JURISDICTION
On July 1, 2008, a default judgment was entered against Appellee Belinda Mendieta-Morales.
On December 2, 2008, Appellee Mendieta-Morales filed an original petition for bill of review in the
trial court, seeking to vacate the default judgment. On March 5, 2009, Appellee Mendieta-Morales
filed a motion for summary judgment. On June 12, 2009, the trial court granted Appellee Mendieta-
Morales’s motion for summary judgment. Appellant Tom Retzlaff then filed a notice of appeal.
04-09-00582-CV
In Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995), the supreme court held that “[a] bill
of review [that] sets aside a prior judgment but does not dispose of the case on the merits is
interlocutory and not appealable.” See also Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588,
591 (Tex. App.—Fort Worth 2003, no pet.). Thus, the supreme court held that the court of appeals
lacked jurisdiction over the appeal. Jordan, 907 S.W.2d at 472. Here, the trial court granted
Mendieta-Morales’s motion for summary judgment. That motion argued the following: (1) Appellant
Retzlaff’s service was fatally defective as a matter of law; (2) there is no genuine issue of material
fact that Retzlaff engaged in fraud and wrongful conduct to prevent Mendieta-Morales from timely
answering the lawsuit; and (3) there is no genuine issue of material fact that Mendieta-Morales has
a meritorious defense. These arguments concern whether the bill of review should be granted and
whether the prior judgment should be set aside. However, they do not relate to the merits of the
underlying lawsuit. Therefore, the trial court’s order granting summary judgment did not dispose of
the case on the merits, and is interlocutory and not appealable.
We therefore dismiss this appeal for lack of jurisdiction.
PER CURIAM
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