Opinion
No. 05-04-01141-CV
Opinion Issued October 6, 2004.
On Appeal from the County Court at Law, No. 4, Dallas County, Texas, Trial Court Cause No. Cc-04-04079-D.
Dismissed.
Before Chief Justice THOMAS, and Justices, LANG-MIERS and MAZZANT.
MEMORANDUM OPINION
Appellant took a default judgment against appellee. Appellee filed a bill of review to set aside the default judgment. Tex. R. Civ. P. 329b(f). A trial court determines a bill of review via a two-step process. Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979). First, appellee, as movant, must make a prima facie showing it exercised diligence in pursuing other available remedies and it has been prevented from presenting a meritorious defense due to fraud, accident, or wrongful act of the opposing party. Wembley Inv. Co v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). Based on this evidence, the trial court determines if the bill of review should be granted and the default judgment set aside. In this case, the trial court determined the default judgment should be set aside and denied a counterclaim by appellee. The separate second step of the process is the determination on the merits of the underlying claim and the entry of a final judgment thereon. In this case, the trial court has not yet entered judgment on the merits of appellant's underlying claim. An order setting aside the default judgment, which leaves the underlying claim pending, is not a final judgment and is not an appealable interlocutory order.
Appellant filed a notice of appeal from the trial court's order setting aside the default judgment. The Court sent a letter to appellant and appellee directing them to file letter briefs explaining how the Court has jurisdiction over this appeal. After reviewing the letter briefs, the Court concludes that it does not have jurisdiction over this appeal. The Court DISMISSES this appeal for want of jurisdiction. Tex.R.App.P. 42.3.