Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Cause No. 10-DCV-179785 and 13-DCV-210161
consists of Justices Christopher, Brown, and Wise.
a consolidated attempted appeal from two orders rendered in a
bill-of-review proceeding and from one order rendered in the
underlying suit. Because we lack jurisdiction, we dismiss the
appeal. Our dismissal of the appeal renders moot appellant
Diogu Kalu Diogu II's "First Amended Motion to
Declare Two Final Summary Judgments Signed by the Trial Court
on July 28th, 2014 and January 21st, 2016 Void [and] Dismiss
[the] Appeal Because the Trial Court Was Without Jurisdiction
to Enter Those Judgments."
No. 14-16-00324-CV is an attempted appeal from an order
signed by the trial court on January 21, 2016 in Cause No.
10-DCV-179785. The record shows that the trial court rendered
final judgment for appellant Diogu Kalu Diogu II in that
cause on August 13, 2010.
a timely post-judgment motion extending the trial court's
plenary power, the trial court retains jurisdiction over a
case for thirty days after the final judgment is signed.
See Tex. R. Civ. P. 329b(d). After the trial
court's plenary power expires, it cannot substantively
modify the judgment except by a bill of review. Tex.R.Civ.P.
of review, however, is an independent proceeding. See
Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.
1989) (citing Schwartz v. Jefferson, 520 S.W.2d 881,
889 (Tex. 1975) (orig. proceeding)); see also Amanda v.
Montgomery, 877 S.W.2d 482, 485 (Tex. App.-Houston [1st
Dist.] 1994, orig. proceeding) (holding that trial
court's refusal to order severance of a bill-of-review
proceeding from the underlying case was an abuse of
discretion warranting mandamus relief). Appellee Roy McCloud
Jr. did attack the 2010 judgment by filing an independent
bill-of-review proceeding, and we discuss the attempted
appeal from that case in the next section of this opinion. In
Cause No. 10-DCV-179785, however, the trial court's
plenary power expired in 2010. Thus, the order signed in that
cause on January 21, 2016 is void for lack of jurisdiction.
See State ex rel. Latty v. Owens, 907 S.W.2d 484,
486 (Tex. 1995) (per curiam) ("Judicial action taken
after the court's jurisdiction over a cause has expired
is a nullity."); Boston v. Bryce Daniel, Inc.,
No. 14-14-00124-CV, 2015 WL 7456017 (Tex. App.-Houston [14th
Dist.] Nov. 24, 2015, no pet.) (mem. op.) (per curiam);
Jefferson v. Unity Nat'l Bank, No.
14-14-00197-CV, 2015 WL 1779254, at *2 (Tex. App.-Houston
[14th Dist.] Apr. 16, 2015, no pet.) (mem. op.) (citing
Tex. Dep't of Transp. v. A.P.I. Pipe &
Supply, LLC, 397 S.W.3d 162, 168 & n.21
(Tex. 2013)). We lack jurisdiction to review the merits of a
void order. See Jefferson, 2015 WL 1779254, at *2
(citing Waite v. Waite, 150 S.W.3d 797, 800 (Tex.
App.- Houston [14th Dist.] 2004, pet. denied)). We can only
declare the orders void and dismiss the appeal from that
cause. See Latty, 907 S.W.2d at 486.
No. 14-16-00330-CV is an attempted appeal from two orders
signed by the trial court in the bill-of-review proceeding,
Cause No. 13-DCV-210161. In that cause, Diogu moved for final
summary judgment denying bill-of-review plaintiff McCloud all
relief, while McCloud moved for partial summary judgment
setting aside the judgment in the underlying case-that is,
the 2010 judgment-but without seeking judgment in his favor
on the merits. The trial court granted McCloud's motion
for partial summary judgment and denied Diogu's motion.
Diogu attempts to appeal both rulings.
jurisdiction to review either order. Regarding the order
granting McCloud's motion for partial summary judgment,
"[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." Jordan v.
Jordan, 907 S.W.2d 471, 472 (Tex. 1995) (per curiam);
see also Tesoro Petroleum v. Smith, 796 S.W.2d 705
(Tex. 1990) (per curiam) (same); Warren v. Walter,
414 S.W.2d 423, 423 (Tex. 1967) (per curiam) (same). The
order denying Diogu's summary-judgment motion in the same
cause is likewise interlocutory. See Cincinnati Life Ins.
Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) ("The
general rule is that a denial of a summary judgment is not
reviewable on appeal . . . because the denial of a summary
judgment is not a final judgment.").
advised the parties of these deficiencies on June 28, 2017,
and informed them that we would dismiss the appeal for want
of jurisdiction unless Diogu filed a response by
demonstrating grounds for continuing his appeal. See
Tex. R. App. P. 42.3(a).
Diogu's response, he acknowledges that the orders signed
by the trial court in the 2013 bill-of-review proceeding were
interlocutory, but asserts that those orders merged into, and
became a "subset" of, the purported final judgment
signed by the trial court on January 21, 2016, in the
underlying suit, that is, in the suit in which a final
judgment was rendered in 2010. But a bill-of-review proceeding
is not a "subset" of another case; as explained
above, it is an independent proceeding. Moreover, Diogu does
not dispute that the order signed by the trial court in the
underlying case on January 21, 2016 is void for lack of
jurisdiction. Because that order is a nullity, it cannot be a
"final judgment." See In re Bokeloh, 21
S.W.3d 784, 792-93 (Tex. App.-Houston [14th ...