Opinion
No. 05-07-00615-CV
Opinion Filed July 17, 2007.
Appeal from the 301st Judicial District Court of Dallas County, Texas, Trial Court Cause No. 06-15902.
Before Justices WRIGHT, O'NEILL, and LANG.
OPINION
Relator seeks mandamus relief to vacate two trial court orders denying his motion to dismiss or abate a bill of review proceeding and disqualifying his counsel. Mandamus is an extraordinary remedy that is available only when the trial court clearly abuses its discretion and there is no adequate remedy at law. In re CI Host, Inc., 92 S.W.3d 514, 516 (Tex. 2002) (orig. proceeding).
The trial court rendered a final judgment in the underlying suit to modify the parent child relationship on April 12, 2006. The mother, real party in interest, appealed this judgment to this Court. Mother's appeal is currently pending before this Court. Subsequent to filing her appeal, Mother filed a bill of review proceeding in the trial court challenging the same judgment and the temporary orders preceding the judgment. Relator filed a motion to dismiss or abate the bill of review proceeding. The trial court denied the motion.
We note that the basis of Mother's bill of review proceeding concerns a conflict of interest involving an associate judge and the temporary orders he entered. These temporary orders became moot with the entry of the final judgment following a jury trial. See In re K.L.R., 162 S.W.3d 291, 301 (Tex.App.-Tyler 2005, no pet.).
An appellate court has exclusive jurisdiction over judgments pending before it. See Carrillo v. State, 480 S.W.2d 612, 616 (Tex. 1972); Stubbs v. Stubbs, 657 S.W.2d 10, 11-12 (Tex.App.-Dallas 1983, no writ). Accordingly, where an appeal of a judgment is pending, a trial court must either dismiss or abate a bill of review proceeding challenging the same judgment. See Stein v. Lewisville Ind. Sch. Dist., 496 S.W.2d 737, 739 (Tex.Civ.App.-Fort Worth 1973, no writ.).
The bill of review proceeding challenges the same judgment that is currently the subject of an appeal pending before this Court. Accordingly, we conclude the trial court abused its discretion in denying relator's motion to dismiss or abate the bill of review proceeding. We conditionally grant the relator's petition for writ of mandamus instructing the trial court to vacate its May 14, 2007 Order on Dismissal Request. We instruct the trial court to enter an order granting relator's motion and to dismiss or abate the bill of review proceeding. A writ of mandamus will issue only in the event the respondent, the Honorable Joe Spurlock, sitting for the 301st Judicial District Court, fails to vacate the May 14, 2007 Order on Dismissal Request and fails to enter an order either dismissing or abating the bill of review proceeding.
The Court makes no ruling with respect to the trial court's order granting the motion to disqualify petitioner's counsel.