SAVAGE v. WEBSTER (2024)

OPINION

In this suit, originally resolved based on the doctrine of adverse possession, we delve into its tortured procedural history, noting the numerous legal land mines, and look aghast at the mess left behind. Vivian Savage attempts to appeal an order purporting to deny her motion to set aside judgment and for new trial in a trespass to try title suit brought by Marvin and Mary Webster seven years ago. While we ultimately dismiss this appeal for want of jurisdiction, we also clarify important missteps, identify the remaining significant unresolved issue, and emphasize the necessity of accurate execution of the equitable bill of review proceeding.

Background

 The Original Suit for Title by Adverse Possession—CV39802

On May 25, 2017, Marvin and Mary Webster, through their attorney, Denny Lessman, filed their original petition for trespass to try title, cause number CV39802. Stating “the real property has no living owner of record,” they named four defendants, Alvin Estelle, Connie Mack, Sharon Walker, and Travis Estelle, and the unknown heirs of three individuals, Corinna Murriel, Art Estelle, and Vicy DeGrate. They claimed seven tracts of property in Falls County, totaling almost 124 acres, based on more than ten years of adverse possession.

Steve Sharp was appointed attorney ad litem for the unknown heirs, and he entered a general denial on their behalf. The record is devoid of any additional actions he may have taken on their behalf. The unknown heirs were never identified. They were served by publication.

None of the named defendants or unknown heirs answered. On September 26, 2017, the trial court, Judge Robert Stem, rendered judgment that Marvin and Mary Webster own the real property and all improvements on it in fee simple.

 The Pool Bill of Review Proceeding—CV39802A

On June 30, 2020, Victor and Melissa Pool, acting pro se, filed a petition for bill of review in cause number CV39802 alleging defective service of process in the original cause, depriving them of due process. In his affidavit, Victor Pool stated that Art Estelle died in 1944, leaving his estate to Pearl Estelle, Pool's great-grandmother. He stated that the citation did not address the correct party, there was no signature on the return, and citation by publication ran for just one day.

The Websters moved to dismiss the bill of review proceeding because it was not filed as a separate suit and because the Pools did not allege a basis for their standing to bring the suit. By order of October 29, 2020, the trial court, Judge Bryan Russ ¹ , severed the bill of review into a separate cause number, CV39802A.

The Pools filed an amended petition under the new cause number, CV39802A. The record includes an affidavit of Vivian Savage, dated September 21, 2020, in which she states that her father died in 1991 and from then on, her brother Ocie Estelle controlled the interests in the Vicy DeGrate, Corinna Murriel, and Mrs. Art Estelle estates. Her brother passed in 2016, and the controlling interests in the estates passed to her. She then conveyed her interest to her son, Victor Pool. Vicy DeGrate is her great-great grandmother, and Art and Pearl Estelle are her grandparents.

On December 8, 2020, Judge Russ rendered an order dismissing Melissa Pool for lack of standing. On December 16, 2020, Judge Russ dismissed Victor Pool's bill of review with prejudice for lack of standing.

 The Savage Bill of Review Proceeding—CV40985 2

On January 4, 2021, Savage, acting pro se, filed her petition for bill of review which was assigned cause number CV40985. She asserted that service of process in the original trespass to try title suit, cause number CV39802, was defective and asked the court to set aside the judgment in that case. The petition also includes paragraphs addressing fraud in a real estate transaction, conspiracy to commit fraud, and breach of fiduciary duties which could be construed as counterclaims to the Websters’ claims of title. Savage claimed, in part, that the Websters had already sold part of the property, two tracts, as evidenced by an agreement dated September 11, 2017, fifteen days before the trial court's September 26, 2017 judgment awarding title to the Websters.

On October 12, 2021, Judge Russ signed an order granting Savage's bill of review. In her first Amended Original Petition for Bill of Review, filed October 26, 2021, Savage includes a paragraph entitled “Fraud, Official Mistake, Lack of Negligence.” In that paragraph, she references requirements for pleadings applicable in some bill of review proceedings. Those requirements were not applicable here and cannot be interpreted as claims. See Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) (A bill of review plaintiff must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part. But plaintiffs alleging that they were not properly served are excused from proving the first two elements. They only need prove the third, which proof of non-service will conclusively establish.).

On November 17, 2021, the Websters filed their motion for no evidence summary judgment claiming Savage lacks standing and addressing Savage's “claims” for fraud, mistake and lack of negligence. Although the references to fraud, mistake and lack of negligence were not claims, the Websters argued there is no evidence supporting these “claims” and asked the court to “grant Defendants (sic) Motion for No Evidence Summary Judgment and dismiss Plaintiff's claims against Defendants.” Judge Russ obliged, granting the motion on December 14, 2021 and dismissing “Plaintiff's claims of Fraud, Official Mistake and Lack of Negligence.”

On January 12, 2022, through newly hired attorney Stephen Howen, Savage filed a motion for new trial in CV40985. She asked the court to affirm its order granting her bill of review, vacate the judgment in CV39802, and set for trial the Websters’ petition for trespass to try title. She argued that the no-evidence summary judgment motion failed to dispose of the case because it did not prove the Websters’ claim as a matter of law. The Websters responded to the motion, saying Savage offered no new arguments or law. They completely ignored the arguments contained in the motion.

On February 23, 2022, Judge Russ denied the motion for new trial. In a letter to the parties of the same date, Judge Russ explained that after he granted the bill of review, “the parties proceeded to litigate the substantive merits of the pending litigation” including Savage's counterclaims for various alleged torts. He went on to address whether the underlying causes of action should be litigated under the bill of review cause number or the trespass to try title cause number. He stated that the better practice is to proceed with the substantive litigation under the original cause number. However, in his opinion, in light of the facts that the parties, causes of action and substantive issues are the same, failure to proceed under the original substantive case number created no error.

Savage appealed the judgment in CV40985. However, Savage failed to file a brief and, after notice, this Court dismissed the appeal for want of prosecution. See Savage, 2022 WL 3974366, 2022 Tex. App. LEXIS 6716.

 The Original Suit for Title by Adverse Possession—CV39802 Post Bill of Review

 Pleadings

On May 17, 2023, Vivian Savage filed her plea in intervention in cause number CV39802. She stated she is a descendant of the record title owners of the property at issue and has an interest in those properties. She alleged that she was not personally served and service by publication was defective. Based on her previously granted bill of review, she intervened, appeared as a defendant, and pleaded not guilty. Savage moved to set aside the September 26, 2017 judgment on the basis that the trial court granted her bill of review, and she requested a jury trial to address the Websters’ claims in their original suit for title.

 Hearing

A hearing was held September 14, 2023, and Judge Russ heard argument on Savage's motion. Reviewing the case's history, he stated that he had granted Savage's bill of review based on defective service, granted the Websters’ motion for no evidence summary judgment on December 14, 2021, and denied Savage's motion for new trial in the bill of review proceeding on February 23, 2022. The judge suggested it is too late for a new trial motion. Savage's counsel, Howen, stated that the judgment in CV39802 was automatically set aside when the bill of review was granted. Agreeing, Judge Russ stated that the moment he granted the bill of review that action negated the judgment as a matter of law. At that juncture, the case began all over again. He stated that granting the Websters’ motion for summary judgment finalized the bill of review case.

Judge Russ asked about the appeal that was filed in the bill of review case. Howen said they did file an appeal, but they realized they need to appeal the original case, not the bill of review case. He explained that his basis for attacking the judgment in CV39802 is the fact the judge granted the bill of review. He argued there is no judgment in CV39802, and it needs to be litigated. Judge Russ stated that, by granting the Websters’ motion for no evidence summary judgment in the bill of review case, he disposed of Savage's claims. He clarified, “because she couldn't prove title.” Judge Russ and Brian Howell, the Websters’ attorney, agreed that the summary judgment created a judgment in the bill of review case. Judge Russ said he thought he had resolved the claim on the title to the land by granting the motion for summary judgment. He believes that was a final, appealable judgment in the bill of review case. Judge Russ denied Savage's motion to vacate and motion for new trial. Savage now appeals from that ruling.

Where Things Stand

In her sole issue, Savage asserts the trial court erred by not adjudicating the merits of the trespass to try title suit. She argues that the trial court's refusal to reopen the trespass to try title suit renders the granting of the bill of review meaningless.

Savage's Bill of Review Proceeding

A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Caldwell, 154 S.W.3d at 96. A petition for bill of review must be filed under a different cause number than the case whose judgment the bill of review complainant is attacking. Retzlaff v. Mendieta-Morales, 356 S.W.3d 676, 679 (Tex. App.--El Paso 2011, no pet.). When the plaintiff in a bill of review establishes that he was not served with process, constitutional due process eliminates the need to make any additional showing. Caldwell, 154 S.W.3d at 97. In such case, the complained-of judgment is void and must be vacated. In re E.R., 385 S.W.3d 552, 566 (Tex. 2012)(“A complete failure of service deprives a litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void and may be challenged at any time.”).

It follows there must be a new trial on the merits. See Alaimo v. U.S. Bank Trust Nat'l Ass'n, 551 S.W.3d 212, 216 (Tex. App.—Fort Worth 2017, no pet.). When the bill of review is granted, the parties are present and ready to proceed to trial anew of the case made by the pleadings in the original cause. Harris v. Logue, 544 S.W.2d 932, 935 (Tex. Civ. App.—Fort Worth 1976, writ ref'd n.r.e.). The bill of review defendants, whose plaintiff's judgment in the prior case was set aside, are then obliged to go forward to try anew the case in which they were the plaintiffs, to introduce evidence under their pleadings, and have the same submitted. Id. Thus, the subsequent trial on the merits of the issues first raised in the prior case should occur under the bill of review cause number and the trial court should render the final judgment in the bill of review cause number. See Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979); Alaimo, 551 S.W.3d at 215-16. If the order in the bill of review proceeding fails to dispose of the merits of the underlying controversy, it is not a final judgment. Alaimo, 551 S.W.3d at 217.

The trial court granted Savage's bill of review, and as a result, the September 26, 2017 judgment awarding title to the land at issue to the Websters was set aside. The burden was then on the Websters to prove title in the bill of review proceeding. See Harris, 544 S.W.2d at 935. Their motion for no evidence summary judgment attempted to address perceived claims by Savage. Not only did the motion not address title, but, because the burden was on the Websters, it was not the appropriate vehicle at this juncture. See Tex. R. Civ. P. 166a(i) (A party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of the other party's claims or defenses.); see also Tex. Civ. Prac. & Rem. Code Ann. §§ 16.021-.034 (limitations of real property actions); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (op. on reh'g) (One seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim.). The Websters made no attempt to prove the merits of their underlying lawsuit. Contrary to what Judge Russ believed, title was not retried in the bill of review proceeding.

Savage's Motion to Set Aside Judgment and for New Trial

A trial court may change its final judgment while it retains plenary jurisdiction. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). 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). If an appropriate post-judgment motion is filed within that time, then the trial court's plenary power is extended for thirty days after the motion is overruled by a signed order or by operation of law. See id. R. 329b(e). A bill of review proceeding does not restore a court's plenary power over a cause of action that has been resolved by final judgment. Alaimo, 551 S.W.3d at 217.

Here, Savage's motion to set aside judgment and for new trial was filed long after the trial court lost plenary jurisdiction over CV39802 in which the final judgment was rendered in 2017. Judicial action taken after the court's jurisdiction over a cause has expired is a nullity. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). An appellate court has no jurisdiction to review the merits of a void judgment. See Waite v. Waite, 150 S.W.3d 797, 800 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Because the trial court signed the order on Savage's motion to set aside judgment and for new trial after it lost plenary power, it is void, and we cannot review the merits of Savage's complaint regarding that order. See Owens, 907 S.W.2d at 486. We declare the order appealed from void and dismiss this appeal. Id.

Conclusion

Because the trial court lacked plenary power to render a ruling on Savage's motion to set aside the judgment and for new trial, we declare the trial court's September 14, 2023 order void. We dismiss this appeal. However, because Judge Russ granted Savage's bill of review, the September 26, 2017 judgment in the Websters’ suit for trespass to try title has been invalid since October 12, 2021. Our resolution of this appeal should not be construed as a final determination of the merits of the Websters’ suit for trespass to try title, which still must be decided in the bill of review cause.

CONCURRING OPINION

In this case, as in virtually all the instances that I can recall, my “vote” regards the judgment; not necessarily the opinion. The judgment is the operative document. The opinion merely attempts to explain how the Court arrived at the judgment, primarily for the purpose of stare decisis; that is, precedent. But simply a vote to “concur” can sometimes be confusing and might need to be explained as to why I concur in the judgment but do not “join” the opinion.¹ In this concurring “opinion,” I will briefly explain why I concur in the judgment but not the Court's opinion.

I believe the Court's opinion is going to be difficult for the parties and the trial court to understand and inappropriate to apply. It may lead to the waste of their time and resources which is of substantial concern to me. Let us begin by all agreeing that there was a final, appealable judgment in the proceeding from which this appeal originated. That final judgment was not appealed. Long after that final judgment, Savage attempted to intervene in the proceeding. The trial court properly denied that motion and refused to allow the proceeding to be reopened. That is the order Savage is now trying to appeal. That order is not a final judgment or appealable order.

The Websters questioned our jurisdiction to review the order denying intervention in this appeal. That is a valid question which must be resolved. Because the Websters had already raised the issue in their brief on appeal, it was unnecessary for us to sua sponte question our jurisdiction. See Tex. R. App. P. 42.3; 44.3.

The Court dismisses this appeal for want of jurisdiction. I agree we do not have jurisdiction of Savage's attempted appeal of the order which denied Savage's motion to intervene. Thus, I concur in the Court's judgment of dismissal. But I disagree with much of the legal analysis and discussion in the opinion which is beyond what is needed to address our jurisdiction.

The issue in this appeal is very narrow: Is the order being appealed a final, appealable judgment or order for purposes of appeal? The answer to this question does not depend on the nature of the case or what happened in another proceeding (the bill of review). The answer really does not depend on anything outside the earlier final judgment, the recent order, and the few relevant Supreme Court of Texas opinions that define what constitutes a final, appealable judgment or order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) and its progeny. Yet, the opinion is chocked full of discussion of the two prior proceedings, the original trespass-to-try-title suit and the bill of review, and the interplay between them. The opinion even suggests the direction the parties must pursue in the other proceeding (the bill of review) which is not before us. Thus, virtually all of the opinion's discussion is dicta. It is clearly not necessary to answer the very narrow question this Court must address in consideration of its jurisdiction of this appeal. All of this extraneous discussion does, however, support the Court's opening that we “look aghast at the mess left behind.”

But what caused me to write separately is, primarily, my disagreement with the last line in the opinion that suggests the parties go back to the trial court in the bill-of-review proceeding and finish a trespass-to-try-title suit. They cannot. There is already a final judgment in the bill-of-review proceeding. That judgment has one of the traditional indicia of finality—a statement regarding the disposition of all parties and all claims and the appealability of the judgment.² See Lehmann, 39 S.W.3d at 205-206. The judgment in the bill-of-review proceeding was appealed by Savage, but the appeal was dismissed for want of prosecution.

The Court's opinion does a good job of explaining why the judgment in the bill-of-review proceeding was erroneously final. Nevertheless, the judgment is as final as a judgment can get. To go back to the bill-of-review case now would be as erroneous as trying to go back to the trial court proceeding we are dealing with here—the original trespass-to-try-title suit. The language of the bill-of-review judgment and the trial court's actions/statements indicate that the trial court thought it was finished with the proceeding. Error in the judgment was not pursued on appeal, and the appeal of the final judgment in the bill-of-review case was dismissed by this Court for want of prosecution. Thus, the judgment in the bill-of-review case is now final, and the case cannot be reopened to complete that which has already been made final.

So, here I write more dicta, which I guess, as a concurring opinion, is worth less than the dicta in the Court's opinion, but which nevertheless explains why, notwithstanding that I concur in the judgment of the Court in this appeal, I can join no part of the Court's opinion.

I respectfully concur.

FOOTNOTES

1.   The Honorable Robert Stem presided over the original trespass to try title case. After his retirement, the Honorable Bryan Russ was elected to the 82nd District Court.

1.   Recently, I have been required by my colleagues to merely “vote” or write a separate opinion rather than using a “note” appended to the court's opinion to explain my vote.

2.   “This judgment finally disposes of all parties and all claims and is appealable.”

STEVE SMITH, Justice

(Chief Justice Gray concurring)