Alaimo v. U.S. Bank Trust Nat'l Ass'n, 551 S.W.3d 212

Background

In Dec. 2014 Alaimo obtained a final default judgment in cause no. 14-08565-158 quieting title to property he purchased. No motion for new trial or restricted appeal was filed.
SRMOF filed a bill of review in a separate suit (cause no. 15-04164-158) on May 18, 2015, alleging improper service; the trial court granted the bill of review on July 8, 2015 and set aside the default judgment.
After the bill of review was granted, SRMOF filed its answer and moved for summary judgment in the underlying action (14-08565-158) instead of litigating the merits in the bill of review proceeding.
Alaimo contested jurisdiction in the underlying action (plea to the jurisdiction and amended petition), arguing that once the bill of review was granted the merits must be litigated in the bill-of-review case because the trial court’s plenary power over the underlying case had expired.
The trial court entered final summary judgment for SRMOF in the underlying action (Jan. 20, 2016). On appeal the court (appellate) concluded it lacked jurisdiction to review the interlocutory bill-of-review order and addressed whether the summary judgment was void for lack of trial-court plenary power.

Issues

Issue	Plaintiff's Argument (Alaimo)	Defendant's Argument (SRMOF)	Held
Whether an order granting a bill of review that sets aside a default judgment is a final, appealable judgment absent adjudication of the underlying merits	The bill-of-review order is not final because it did not adjudicate the merits of the original controversy; finality requires disposition of both the bill and the underlying claims in the bill proceeding	The trial court may administratively elect where to adjudicate the merits; there is no controlling statutory requirement to litigate merits in the bill-of-review cause	Held: Order granting bill of review is interlocutory (not final/appealable) because it did not resolve the merits of the underlying dispute.
Whether the trial court retained jurisdiction/plenary power to adjudicate merits in the underlying case after the 30-day plenary period expired	Plenary power expired 30 days after the default judgment; once a bill of review is granted in a separate case the underlying cause lacks plenary power and merits must be litigated in the bill case	SRMOF implicitly argued the merits could be litigated in the underlying case or that the court had discretion; it disputed Alaimo's jurisdictional position	Held: Trial court lost plenary power over the underlying cause; actions attempting to change the final judgment in the underlying case after plenary power expired were void.
Validity of the summary judgment entered in the underlying action after bill of review was granted	The summary judgment entered in the underlying action after the court’s plenary power expired is void	SRMOF relied on having litigated and obtained judgment in the underlying cause	Held: The Jan. 20, 2016 summary judgment in the underlying action is void and must be vacated.
Whether appellate court should retain/abate the appeal rather than dismissing for lack of jurisdiction (bona fide attempt / efficiency arguments)	Urged abatement and transfer of filings to the bill-of-review case to avoid duplication and allow this court to consider remaining issues once final judgment issues ripen	SRMOF argued no authority supports Alaimo's venue/filing position and favored adjudication where the courtacted	Held: Declined exception and abatement; appellate court lacks jurisdiction over interlocutory bill-of-review order and will dismiss appeal after vacating the void summary judgment.

Key Cases Cited

PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012) (bill of review is a method to attack a default judgment)
Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010) (bill of review is appropriate when motion for new trial or restricted appeal is unavailable)
Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979) (when a bill of review is granted final judgment must resolve both the bill and the original cause)
Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588 (Tex. App.—Fort Worth 2003) (when bill of review is granted, adjudication of the merits occurs in the bill proceeding)
In re J.B.A., 127 S.W.3d 850 (Tex. App.—Fort Worth 2004) (final judgment in a bill of review should either deny relief or set aside former judgment and substitute a judgment adjudicating the entire controversy)
Lehmann v. Har‑Con Corp., 39 S.W.3d 191 (Tex. 2001) (a judgment is final only if it disposes of all parties and claims)
State ex rel. Latty v. Owens, 907 S.W.2d 484 (Tex. 1995) (judicial actions taken after plenary power expires are void)
Mueller v. Saravia, 826 S.W.2d 608 (Tex. 1992) (courts may construe filings to honor bona fide attempts to invoke jurisdiction in limited circumstances)
Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621 (Tex. 2012) (appellate review of void orders limited to declaring voidness and making appropriate orders)
City of San Antonio v. Rodriguez, 828 S.W.2d 417 (Tex. 1992) (bona fide attempt to invoke jurisdiction may be recognized when no party is misled)