Opinion
NO. 01-16-00907-CR
04-25-2017
STEVEN MOODY, Appellant v. DEBORAH GUILLORY, Appellee
On Appeal from the 189th District Court Harris County, Texas
Trial Court Case No. 2016-58409
MEMORANDUM OPINION
Appellant, Steven Moody, attempts to appeal from the trial court's October 21, 2016 "Order Voiding Default Judgment." Appellee, Deborah Guillory, has filed a motion to dismiss the appeal, contending that Moody seeks to appeal an interlocutory order and the Court does not have jurisdiction over the appeal. We grant the motion and dismiss the appeal.
In trial court cause number 2014-45430, Moody sued Guillory, Success Auto Sale Co., Thomas Benson, and "John Doe, et al." asserting claims for breach of contract, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act and Federal Odometer Act. On October 25, 2015, the trial court signed an order, indicating that the defendants had been served with citation and failed to appear, and stating that Moody was awarded "from each Defendant[] $80,000.00 with interest."
Guillory's motion to dismiss reflects that, in trial court cause no. 2016-58409, she filed a petition for bill of review "to determine the validity of the Default Judgment Steven Moody obtained in Cause No[.] 2014-45430." On October 21, 2016, the trial court signed an order finding that the "Default Judgment [was] void for due process violation" and ordering:
"A bill of review is an independent action to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial." Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex. 1999) (citing Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998)); see Urso v. Lyon Fin. Servs., Inc., 93 S.W.3d 276, 280 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (citing Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979)) (stating bill of review is "a new suit" filed in same court that rendered original judgment).
1. The Default Judgment entered in Cause No. 2014-45430 is void as Deborah Guillory was not served with process, Thomas Benson was not served with process, and Success Holdings, LLC, d/b/a Success Auto was not served with process.
2. This case will revert back to its original status in Cause No. 201445430 with Steven Moody as the Plaintiff and Success Holdings, LLC, d/b/a Success Auto, Deborah Guillory, & Thomas Benson as the Defendants. . . .Represented by counsel, Moody filed a notice of appeal of the trial court's October 21, 2016 order. In her motion to dismiss, Guillory asserts that we lack jurisdiction over Moody's appeal because the October 21, 2016 order does not dispose of all the issues in the case on the merits. Moody has not responded to Guillory's motion.
4. Plaintiff Steven Moody will have the burden of proving the underlying causes of action he raised in No. 2014-45430.
On March 16, 2017, Moody filed a pro se notice of appeal of the October 21, 2016 order, which was sent to this Court and filed in this appeal. See TEX. R. APP. P. 12.2(c) (providing notices of appeal filed in same case must be given same docket number). However, Moody's appellate counsel has not sought to withdraw from representing Moody in this Court. See id. 6.1(a) (providing appellant's lead counsel is "attorney whose signature first appears on the notice of appeal"); 6.5 (providing for withdrawal of attorney from representing party on appeal). Further, a Harris County district court has declared Moody a vexatious litigant and signed a prefiling order. See Moody v. Nonstop Bail Bonds Co., No. 2015-52163 (113th Dist. Ct., Harris County, Tex. Feb. 12, 2016). The Clerk of this Court may not file an appeal presented by a vexatious litigant subject to a prefiling order unless he obtains an order from the appropriate local administrative judge permitting the filing. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a) (West 2017).
Generally, appellate courts have jurisdiction only over appeals from final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Ne. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966) (citations omitted). To be final, a judgment must dispose of all issues and parties in a case. Aldridge, 400 S.W.2d at 895 (citations omitted). Here, the trial court determined that the default judgment in cause no. 2014-45430 was void but did not resolve Moody's causes of action against Guillory and the other defendants in that proceeding. A judgment rendered in a bill of review proceeding that sets aside a prior judgment but does not dispose of the case on the merits is interlocutory and not a final judgment from which an appeal will lie. See Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006) (citing Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex. 1990)); Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995) (citing Tesoro, 796 S.W.2d at 705; Warren v. Walter, 414 S.W.2d 423, 423 (Tex. 1967)); see also Xioadong Li v. DDX Group Inv., LLC, 404 S.W.3d 58, 62 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ("'The final judgment in a bill of review action should either deny any relief to the petitioner or grant the bill of review and set aside the former judgment, insofar as it is attacked, and substitute a new judgment which properly adjudicates the entire controversy.'") (quoting Shahbaz v. Feizy Import & Export Co., 827 S.W.2d 63, 64 (Tex. App.—Houston [1st Dist.] 1992, no writ))). Because it does not purport to dispose of the claims between the parties, the October 21, 2016 order is interlocutory and is not a final and appealable judgment.
Accordingly, we conclude that the Court does not have jurisdiction over Moody's attempted appeal. We grant Guillory's motion and dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any other pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Brown and Lloyd.