APRIL SMALL, INDIVIDUALLY AND ON BEHALF OR HER MINOR CHILD, E.C., Appellant
MARIO GARCIA, Appellee
Appeal from the 157th District Court Harris County, Texas
Trial Court Case No. 2018-22535
consists of Justices Lloyd, Landau, and Countiss.
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.
The underlying case
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
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.
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.
The bill-of-review proceeding
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
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.
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 ...