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Small v. Garcia

Court of Appeals of Texas, First District

July 23, 2019

APRIL SMALL, INDIVIDUALLY AND ON BEHALF OR HER MINOR CHILD, E.C., Appellant
v.
MARIO GARCIA, Appellee

          On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2018-22535

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          PER CURIAM

         April Small challenges the trial court's rendition of summary judgment in favor of Mario Garcia in Garcia's bill-of-review proceeding to set aside a default judgment against Garcia. In a single issue, Small contends the trial court erred in granting summary judgment in favor of Garcia because Small's summary-judgment evidence conclusively establishes that the process server served Garcia with process. We dismiss the appeal for want of jurisdiction.

         Background

         A. The underlying case

         In the underlying case, a dog charged from a home and bit E.C., Small's minor child, causing severe injuries to E.C. Small, on behalf of E.C., sued Garcia, as the alleged homeowner, for negligence, negligence per se, and gross negligence.

         Garcia did not timely file an answer to Small's petition. On May 11, 2017, the trial court entered an interlocutory default judgment on liability in Small's favor. On this same date, Garcia learned about this lawsuit and immediately filed an answer and a motion to set aside the judgment. The following day, the trial court overruled the motion and signed a default judgment awarding $930, 000 and post-judgment interest to Small.

         The parties dispute whether Garcia was served with process. Reginald Branch, a licensed process server, executed a return of process for Garcia, stating that he personally delivered the citation to Garcia's wife at his residence, and specifying a time he did so. But, Garcia contends that he was not at home at that time. In his affidavit, Garcia explained that he had been at Home Depot renting a tiller.

         B. The bill-of-review proceeding

         Garcia filed a bill of review alleging that he had never received notice of the underlying suit or been served with process. Garcia then moved for traditional summary judgment and no-evidence summary judgment in the bill-of-review proceeding and argued that the default judgment against him was void because he was not served with process. Garcia attached evidence to his motions to show that he was not at his residence when Branch claimed to have served Garcia. Small filed a response opposing Garcia's motions and attached rebuttal evidence.

         Ultimately, the trial court granted Garcia's summary judgment motions, set aside the default judgment in the underlying case, and ordered all issues in the underlying action to be tried. This appeal followed.

         C. Jurisdictional inquiry

         The order being appealed is an interlocutory grant of judgment in Garcia's favor on his bill of review. This court has an independent obligation to determine whether we have jurisdiction to decide appeals filed with the court. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). The summary-judgment order is an unappealable interlocutory order. On June 25, 2019, the court sent a letter to the parties inquiring about our jurisdiction and requested jurisdictional briefing from the parties. We cautioned the parties that failure to demonstrate the existence of the Court's jurisdiction would result ...


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