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Diogu v. McCloud

Court of Appeals of Texas, Fourteenth District

July 27, 2017

DIOGU KALU DIOGU II, Appellant
v.
ROY MCCLOUD JR., Appellee

         On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 10-DCV-179785 and 13-DCV-210161

          Panel consists of Justices Christopher, Brown, and Wise.

          MEMORANDUM OPINION

          Tracy Christopher, Justice

         This is 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."[1]

         I.

         Cause 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.

         Absent 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. 329b(f).[2]

         A bill 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.

         II.

         Cause 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.

         We lack 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.").[3]

         III.

         We 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).

         In 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.[4] 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 ...


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