Opinion
NO. 14-21-00235-CV
05-18-2021
IN RE RICHARD LANCE BOWE, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
311th District Court Harris County, Texas
Trial Court Cause No. 2015-77061
MEMORANDUM OPINION
On May 5, 2021, relator Richard Lance Bowe filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Germaine Tanner, presiding judge of the 311th District Court of Harris County, to set relator's motion for entry of final judgment for a hearing in the underlying bill of review case; sign and enter a final order in the bill of review case; and provide proper notice to relator of the signing of the final order.
Relator and Samantha Bowe were divorced in May 2005 in cause number 2005-120878. Bowe v. Bowe, No. 14-19-00323-CV, 2020 WL 897131, at *1 (Tex. App.—Houston [14th Dist.] February 25, 2020, no pet.) (mem. op.). Samantha filed a modification proceeding, which the trial severed into a separate cause action in cause number 2005-120878A. Id. On March 3, 2014, the trial court dismissed the severed cause of action and ordered that all actions taken by the court after February 9, 2012 were void because no action was taken to extend the court's plenary power. Id. Among the orders declared void were orders requiring relator to pay attorney's fees to Samantha's attorney, Steven Engelhardt, and to the children's amicus attorney, Kelley Fritsch. Id.
Englehardt filed a bill of review in cause number 2015-77061 to vacate the March 3, 2014 order entered in cause number 2005-120878A. Fritsch intervened in the bill of review proceeding. Id. On December 19, 2018, the trial court signed an order granting a bill of review in favor of Engelhardt in cause number 2015-77061. Bowe v. Engelhardt, No. 14-19-00200-CV, 2019 WL 2631056, at *1 (Tex. App.—Houston [14th Dist.] June 27, 2019, no pet.). Relator filed a motion for new trial, which the trial court denied. Id.
Relator appealed the order granting the bill of review to this court. Id. We explained that a bill of review, which sets aside a prior judgment but does not dispose of the case on the merits is interlocutory and not appealable. Id. Nor does the order denying relator's motion for new trial dispose of the case on the merits. Id. We dismissed relator's appeal from the order granting the bill of review for lack of jurisdiction because the order was not final and appealable. Id.
Relator then sought mandamus relief from the December 19, 2018 order granting the bill of review. In re Bowe, No. 14-19-00636-CV, 2019 WL 4621062, at *1 (Tex. App.—Houston [14th Dist.] Sept. 24, 2019, orig. proceeding) (mem. op.). We denied relator's mandamus petition because he failed to show that an appeal after final judgment would not provide an adequate remedy for any error. Id.
On March 11, 2021, relator filed a motion for final judgment in the bill of review case, cause number 2015-77061, so that he can appeal the order granting the bill of review. One of relator's attorneys, Heather Davis, emailed the trial court's staff to obtain a hearing date on relator's motion for entry of final judgment and followed up on March 16, 2021. The court's staff informed Davis that the bill of review reopened cause number 2005-120878, the divorce case, and therefore the pleadings have to be filed in that case and once the motion for entry is filed in cause number 2005-120878, counsel could then request a hearing date.
Another of relator's attorney's, Scott Poerschke, counsel wrote the trial court that the motion for entry can only be filed in cause number 2015-77061, the bill of review case. On April 1, 2021, the trial court's staff advised Davis that the motion for entry could not be heard under cause number 2015-77061 because the granting of a bill of review in 2018 and the denial of a new trial disposed of cause number 2015-77061. Davis was further advised that counsel needed to bring this matter to the attention of the court of appeals so that the court of appeals can change the status from disposed to open.
A bill of review is a separate and independent suit, brought in the same court that entered the judgment being attacked under a different cause number. See In re Thompson, 569 S.W.3d 169, 173-74 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding); see also Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (explaining that bill of review is separate proceeding from underlying suit). A bill of review, which sets aside a prior judgment but does not dispose of the case on the merits is interlocutory in nature and is not a final appealable judgment. Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006) (per curiam). When the trial court grants a bill of review and sets aside a judgment in a prior case, the subsequent trial on the merits of the prior case occurs in the same proceeding as the trial on the bill of review, not in the underlying case in which the judgment is vacated. Alaimo v. U.S. Bank Trust Nat'l Ass'n, 551 S.W.3d 212, 216 (Tex. App.—Fort Worth 2017, no pet.).
The bill of review proceeding did not reopen the divorce case in cause number 2005-120878 or the severed modification case in cause number 2005-120878A. Although, the trial court granted the bill of review and set aside the March 3, 2014 order, it did not conduct a trial on the modification action. Therefore, the trial court cannot enter a final judgment at this point but must try the modification action in the bill of review case in cause number 2015-77061.
Because relator only asked that a final judgment be entered and not a setting on the merits, relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.
PER CURIAM Panel consists of Chief Justice Christopher and Justices Zimmerer and Hassan.