Elizabeth A. Lousteau and Brett Clanton v. James L. Noriega and Sonia A. Noriega

Opinion issued October 13, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00341-CV

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ELIZABETH A. LOUSTEAU AND BRETT CLANTON, Appellants

V.

JAIME L. NORIEGA AND SONIA A. NORIEGA, Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2013-35448

MEMORANDUM OPINION

Appellants, Elizabeth A. Loustea and Brett Clanton, have filed a notice of

appeal, attempting to challenge the trial court’s December 22, 2014 interlocutory

judgment entered in favor of appellees Jaime L. Noriega and Sonia A. Noriega;

February 13, 2015 consolidation and severance orders; and March 11, 2015 order

vacating, in part, the February 13, 2015 severance order. We dismiss the appeal

for want of jurisdiction.1

In June 2013, in trial court cause number 2013-35448, appellants filed suit

against appellees for trespass and nuisance, alleging that water runoff from a

structure on appellees’ property, the “Goldenrod property,” caused flooding that

had damaged appellants’ property. After the trial court signed a default judgment

in their favor, appellants obtained a writ of execution on the Goldenrod property

and purchased it at a constable’s sale.

In March 2014, in trial court cause number 2014-14152, appellees filed a

petition for a bill of review and application for injunctive relief, asserting that they

had not been served with appellants’ 2013 lawsuit and requesting that the trial

court vacate the default judgment rendered against them and “take actions required

to return” the Goldenrod property to them.2 By amended and supplemental

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Documents relevant to the trial court proceedings underlying this appeal are

included in the clerk’s record and supplemental clerk’s records filed in this Court’s

Cause No. 01-15-00254-CV, Elizabeth A. Loustea and Brett Clanton v. Jaime L.

Noriega and Sonia A. Noriega. We may take judicial notice of our own records

involving the same parties and subject matter. Douglas v. Am. Title Co., 196

S.W.3d 876, 877 n.1 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Office

of Pub. Util. Counsel v. Pub. Util. Comm’n, 878 S.W.2d 598, 600 (Tex. 1994)).

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“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); see Urso v. Lyon Fin. Servs., Inc.,

93 S.W.3d 276, 280 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (citing

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petitions, appellees sought a declaration that the Goldenrod property is their

homestead, damages for appellants’ allegedly wrongful execution, and attorney’s

fees. On November 7, 2014, the trial court signed an order setting aside the default

judgment in cause number 2013-35448 and releasing monies in the registry of the

court to appellees. On December 22, 2014, the trial court signed an “Interlocutory

Judgment,” in which it set aside the constable’s deed for the Goldenrod property,

restored property rights in the Goldenrod property to appellees, and ordered

appellants to turn over possession of the property to appellees. It further ordered

that appellees take nothing on their claim for attorney’s fees. In the December 22,

2014 interlocutory judgment, the trial court also stated that, to the extent the relief

granted in the November 7, 2014 order was not clear, “the same is hereby

ORDERED, ADJUDGED and DECREED.”

On February 13, 2015, the trial court signed two additional orders. In the

first order, the trial court consolidated trial court cause numbers 2014-14152 and

2013-35448 under trial court cause number 2013-35448. In the second order, the

trial court severed appellees’ “causes of action for Bill of Review and Declaratory

Judgment, as adjudicated in the Court’s December 22, 2014 Interlocutory

Judgment,” into a new cause and directed the trial court clerk to docket the new

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).

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cause under trial court cause number 2013-35448-B. The trial court also stated

that the order “immediately ma[d]e the Court’s December 22, 2014 Interlocutory

Judgment in 2014-14152 into a final, appealable Judgment disposing of all claims

and all parties in that newly severed cause, 2013-25448-B.”

On March 11, 2015, the trial court signed, in the severed cause, an order

vacating in part the February 13, 2015 order “only insofar as it severed the Bill of

Review cause of action from the main (2013-35448) case.” The trial court, in the

March 11, 2015 order, additionally stated:

The Court’s February 13, 2015 Order is hereby UNCHANGED as to

the declaratory judgment cause of action that was tried in 2014-14152

and then consolidated into 2013-35448. The Court’s judgment on that

cause of action remains final and appealable from within

2013-35448-B.

To be clear, by vacating the February 13, 2015 Order in part, it

is the Court’s intent and Order that the Bill of Review cause of action

is now consolidated back into the 2013-35448 main case where it will

sit until it is made part of a final judgment in that case on the

remaining issues therein, or until further order of this Court.

On March 16, 2015, appellants filed in trial court cause numbers

2013-35448 and 2013-35448-B their notices of appeal of the (1) December 22,

2014 interlocutory judgment; (2) the February 13, 2015 consolidation and

severance orders; and (3) the March 11, 2015 order vacating in part the February

13, 2015 order. After receiving the notices of appeal, the Clerk of this Court

docketed the appeal from trial court cause number 2013-35448 as appellate Cause

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No. 01-15-00341-CV and the appeal from trial court cause number 2013-35448-B

as appellate Cause No. 01-15-00254-CV. See TEX. R. APP. P. 12.1, 12.2.

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); N.E.

Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). To be final, a

judgment must dispose of all issues and parties in a case. Aldridge, 400 S.W.2d at

895. Here, the record does not reflect that the trial court has rendered a final

judgment in trial court cause number 2013-35448. Rather, the record reflects that,

appellees’ wrongful execution claim and bill of review proceeding remain pending

in that cause number.

On July 16, 2015, we notified appellants that this appeal was subject to

dismissal for want of jurisdiction unless they filed a written response showing how

this Court has jurisdiction over this appeal. See TEX. R. APP. P. 42.3(a). Appellants

responded that “the final, appealable judgment is currently in the Severed

Lawsuit,” and they filed a notice of appeal in this cause “in an abundance of

caution.” They assert that the December 22, 2014 interlocutory judgment “should

have been a final Judgment” and the notice of appeal should have been filed in trial

court cause number 2014-14152.

The record, however, lacks any indicia that the trial court has rendered a

final judgment in the cause underlying this appeal, trial court cause number

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2013-35448. The December 22, 2014 order is titled “Interlocutory Judgment,”

states that the trial court tried “the limited issue” of whether the Goldenrod

property was appellees’ homestead and “enter[ed] a partial judgment” in appellees’

favor, and indicates that appellees’ wrongful eviction claim remains pending.

Additionally, the record filed in this Court does not reflect that the trial court has

disposed of appellees’ bill-of-review proceeding. Although the trial court set aside

the default judgment rendered against appellees, the record does not reflect that the

trial court has addressed the merits of appellants’ original claims against appellees,

as required in a bill of review proceeding. See Xiaodong Li v. DDX Group Inv.,

LLC, 404 S.W.3d 58, 62 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (quoting

Shahbaz v. Feizy Import & Export Co., 827 S.W.2d 63, 64 (Tex. App.—Houston

[1st Dist.] 1992, no writ)) (“‘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.’”); see also Jordan v. Jordan, 907

S.W.2d 471, 472 (Tex. 1995) (“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.”).

Accordingly, we conclude that this Court does not have jurisdiction over this

attempted appeal, and we dismiss the appeal for want of jurisdiction. We also

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dismiss as moot all pending motions in this appeal, including appellants’ motions

to consolidate this appeal with the appeal in Cause No. 01-15-00254-CV, and

extend the time to file their brief in this appeal.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Brown.

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