SMITH v. CASEY LENDING LLC (2026)

OPINION

Appellant Wanda Joyce Smith filed a bill of review challenging a judgment rendered in favor of Appellee Casey Lending, LLC in a delinquent tax suit allowing it to foreclose on tax liens encumbering certain real property over which Smith claims she owns an undivided one-third interest. In her bill of review, Smith also asserted counterclaims against Casey Lending and third-party claims against Appellee Tai Phan, who purchased the property at a foreclosure sale.

On appeal, Smith challenges the trial court's order granting summary judgment in favor of Casey Lending and Phan dismissing Smith's claims with prejudice. We dismiss Smith's counterclaims against Casey Lending and third-party claims against Phan for lack of jurisdiction, and we reverse the trial court's order granting summary judgment in favor of Casey Lending and remand for further proceedings on Smith's bill of review.

Background

In 2008, siblings Karen F. Ferreira, Mary Hope Schrick, and Thomas Charles Schrick each inherited a one-third undivided interest in residential property located in Harris County, Texas (“Property”). Property taxes remained unpaid from 2006 through 2013 prompting a suit by taxing authorities to recover the delinquent taxes and to foreclose on tax liens levied against the Property for the corresponding tax years (“2013 Tax Suit”).¹

After the 2013 Tax Suit was filed, the siblings executed several documents concerning the Property. In April 2014, Mary Hope executed a “grant deed” conveying her one-third undivided interest in the Property to Smith. A few months later, in October 2014, Mary Hope executed a general warranty deed conveying the same one-third undivided interest in the Property to her brother Thomas. Also in October 2014, Karen executed a general warranty deed conveying her one-third undivided interest in the Property to Thomas, and Thomas executed a Property Tax Lien Payment Agreement (“Promissory Note”) in favor of Casey Lending in the principal amount of $24,778.32 for the payment of the delinquent taxes for tax years 2006 through 2013. Thomas also executed a Property Tax Lien Contract (“Deed of Trust”) in favor of Casey Lending, pledging the Property as collateral for the Promissory Note. Thomas also executed sworn documents authorizing the taxing authorities to transfer their tax liens to Casey Lending for tax years 2006 through 2013.

Casey Lending paid the delinquent taxes for tax years 2006 through 2013, and in October 2014, the taxing units transferred the tax liens corresponding to those tax years to Casey Lending.

In November 2014, the trial court rendered final judgment in favor of the taxing authorities in the 2013 Tax Suit.²

In July 2016, the same taxing authorities filed suit, this time to recover delinquent taxes for tax years 2014 to 2016 and to foreclose on tax liens levied against the Property to secure payment for those taxes (“2016 Tax Suit”). Casey Lending intervened in the 2016 Tax Suit asserting its right under Section 33.445 of the Texas Tax Code to foreclosure on the delinquent tax liens it had acquired for tax years 2006 through 2013. The taxing authorities amended their petition naming as defendants Thomas, Allied Land Holding LLC (in rem only), and Smith (in rem only). Allied filed an original answer asserting it had purchased the Property at a foreclosure sale in September 2016.³

Smith filed an answer in the 2016 Tax Suit in June 2017. That same month, the trial court set the trial for August 11, 2017, and it issued notice of the trial setting to Smith at the address listed in her answer. According to Smith, she received notice of the August trial setting and although she “appeared at the [August] trial setting,” the trial court postponed the proceeding “to obtain [its] own title search.” Smith claims that at the conclusion of the August hearing, the trial court indicated there would be “another trial date, but [the court] did not specify when.” Smith argues that she “left the courthouse [on August 11] believing [ ]there would be additional proceedings,” and she “would receive notice of a future trial date.” Instead, on October 17, 2017, the trial court rendered a final judgment in the 2016 Tax Suit in favor of the taxing authorities and Casey Lending, ordering that the Property be sold to satisfy the tax liens for years 2003 through 2016 (“2017 Judgment”). The 2017 Judgment states that Smith filed an answer, was “duly notified of trial,” and “failed to appear in court” on August 11, 2017.

Pursuant to the 2017 Judgment, the district clerk issued an order of sale to Casey Lending and in July 2018, the constable conducted a tax sale at which Tai Phan purchased the Property for $92,000.⁴

Beginning in October 2018, Phan filed multiple eviction proceedings against Smith. On June 3, 2019, Phan obtained a judgment and order for possession of the Property.

Bill of Review

On June 12, 2019, Smith filed in the 2016 Tax Suit a combined “Bill of Review, Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction and Counterclaim and Third-Party Petition.” In her bill of review, Smith argued that the 2017 Judgment had been rendered based on a series of official mistakes, including the failure to send her notice of the judgment and failure to provide her notice of additional proceedings after August 11, 2017, resulting in the denial of her right to due process. Smith requested that the trial court (1) declare the 2017 Judgment void as a matter of law with respect to her one-third interest in the Property, (2) “void the Constable's Sale and Deed” with respect to her interest in the Property, (3) “refund either all or 1/3 of the purchase price to Tai Phan,” (4) “reinstate this tax cause,” and (5) “find upon final judgment that Casey may not enforce its liens as to ․ her interests” in the Property. In addition to her bill of review, Smith asserted counterclaims against Casey Lending and third-party claims against Phan ⁵ for declaratory judgment, quiet title, and trespass to try title. She also filed applications for a temporary restraining order and for temporary and permanent injunctions against Phan and Casey Lending.⁶

Casey Lending objected to Smith's multifarious pleading. It argued that the trial court's plenary power over the 2016 Tax Suit had expired and thus the trial court lacked jurisdiction to consider anything other than Smith's bill of review. Casey also objected to Smith's bill of review and later filed a motion to strike the bill of review incorporating the arguments raised in its previously filed objections. The trial court conducted a hearing on the matter, and in December 2019, it denied Casey Lending's motion to strike stating the “motion was without merit.”⁷ Subsequently, the trial court set the case for trial for September 9, 2021.⁸

Casey Lending's Motion for Summary Judgment

In December 2020, Casey Lending filed a motion for summary judgment on its original foreclosure claim in the 2016 Tax Suit. Casey Lending argued it was entitled to summary judgment because (1) Smith's April 2014 deed from Mary Hope was invalid and could not “operate as a conveyance” and thus Smith lacked standing to challenge the foreclosure, and (2) Casey Lending's tax liens against the Property were valid and enforceable against the entire Property, including Smith's purported one-third undivided interest.

Casey Lending further argued that even if Smith's deed were valid, Casey Lending was nevertheless entitled to summary judgment as a matter of law because Smith's deed from Mary Hope expressly stated that Smith had taken her alleged one-third interest in the Property subject to pre-existing taxes, which included the tax liens then held by the taxing authorities for tax years 2006 through 2013, which Thomas authorized the taxing authorities to transfer to Casey Lending. Casey Lending argued that Thomas had the authority to contract with Casey Lending and authorize the taxing authorities to transfer the tax liens to Casey Lending pursuant to Section 32.06 of the Tax Code. See Tex. Tax Code § 32.06. Casey Lending argued that because it had acquired the tax liens pursuant to Section 32.06, it was statutorily subrogated to the taxing units and thus it had the right to foreclose on the tax liens. Casey Lending further argued that even if Thomas could not have encumbered Smith's purported one-third interest in the Property, “the foreclosure sale to Tai Phan was valid as it pertained to [the] 2/3rd interest held by Thomas at the time of foreclosure.”

Smith, who construed Casey Lending's motion for summary judgment as a motion on the first element of her bill of review—prima facie proof of a meritorious defense to Casey Lending's foreclosure claim—responded that Casey Lending was not entitled to summary judgment because, among other things, there were questions of material fact with respect to the second and third elements of her bill of review. Separately, on the merits, Smith argued she had standing to challenge Casey Lending's foreclosure on the Property because her deed from Mary Hope was valid and enforceable, and Section 32.06 of the Tax Code did not grant Thomas authority to encumber her one-third interest in the Property or authorize the taxing authorities to transfer the 2006 to 2013 tax liens to Casey Lending. Even if Casey Lending had a right to equitable subrogation of the tax liens, she argued there were questions of material fact concerning the appropriateness of allowing Casey Lending to foreclose on her one-third interest in the Property based on subrogation.

Phan filed a response agreeing with most of Casey Lending's summary judgment arguments. Phan, however, disagreed with Casey Lending's position that if Thomas was not authorized to pledge Smith's one-third interest in the Property, the foreclosure sale to Phan was nevertheless valid with respect to the remaining two-thirds interest held by Thomas. Phan argued that if he was not vested with 100% interest in the Property, “the Tax Sale should be void, as it would not conform with the Judgment and Order of Sale.”

The trial court held a non-evidentiary hearing on Casey Lending's motion for summary judgment and took the motion under advisement at the close of the hearing. Two months later, on August 16, 2021, the trial court issued an order granting Casey Lending's motion for summary judgment. The order states that after considering

the [motion for summary judgment], the responses/replies filed by Wanda Joyce Smith and Tai Pan, the responses, replies and supplements filed thereto by Casey Lending, LLC, the evidence presented by the parties and the arguments made by the parties, the Court GRANTS the Motion and ORDERS all claims brought by Wanda Joyce Smith against Casey Lending, LLC in the document filed on June 12, 2019 and titled IN REM DEFENDANT WANDA JOYCE SMITH'S BILL OF REVIEW, APPLICATION FOR TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION AND PERMANENT INJUNCTION AND COUNTERCLAIM AND THIRD-PARTY PETITION or in any pleadings filed thereafter, DISMISSED WITH PREJUDICE. This order grants partial summary judgment to the extent there are claims remaining, relating to other parties to this suit, that do not implicate Casey Lending, LLC. This is a final and appealable order that is effective immediately.9

Smith appealed, but this court determined that the judgment was not final because Smith had asserted claims against Tai Phan, who had not moved for summary judgment, and thus the judgment did not resolve all claims against all parties.

Phan's Motion for Summary Judgment

On remand, Phan moved for summary judgment on Smith's third-party claims for suit to quiet title, trespass to try title, declaratory judgment, and request for permanent injunction enjoining him from interfering with Smith's alleged ownership of the Property. Phan incorporated by reference Casey Lending's motion for summary judgment and argued that in addition to the arguments raised in that motion, Phan was entitled to summary judgment on Smith's claims against him because Smith had not tendered payment of the amount he paid for the Property or deposited into the registry of the court the amount required by Section 34.08 of the Tax Code to commence her suit to challenge the validity of a tax sale. According to Phan, compliance with Section 34.08’s requirement to “deposit[ ] into the registry of the court an amount equal to the amount of the delinquent taxes, penalties, and interest specified in the judgment of foreclosure obtained against the property plus all costs of the tax sale” is a prerequisite to commencing an action challenging the validity of a tax sale, and even if Smith were in the future to deposit the required funds or file an affidavit of inability to pay, Smith “would be barred by the limitations period of section 33.54.” Phan also filed a motion to vacate the temporary injunction previously issued by the trial court enjoining Phan from, among other things, taking any action that could affect Smith's property rights.

Smith filed a combined motion to set aside the order granting Casey Lending's motion for summary judgment, response to Phan's motion for summary judgment, and response to Phan's motion to vacate the temporary injunction. In the portion of her multifarious pleading moving to set aside the order granting Casey Lending's motion for summary judgment, Smith argued for the first time that Thomas had not complied with Chapter 65 of the Texas Property Code, and he was thus prohibited from encumbering or pledging her one-third interest in the Property. Smith also argued that the trial court's order granting summary judgment for Casey Lending was “procedurally premature” because she had pleaded and established that she had not received notice of the proceedings resulting in the 2017 Judgment or notice of the judgment until April 2018. Consequently, she was not required to establish a meritorious defense to proceed to trial on the merits of her bill of review. Smith also reasserted some of the arguments she raised in response to Casey Lending's motion for summary judgment, such as the existence of issues of material fact, the validity of her deed from Mary Hope, Thomas’ ability to encumber her one-third interest in the Property, and the availability of equitable subrogation.

With respect to Phan, Smith argued he was not entitled to summary judgment based on the argument that her claims were barred by the statute of limitations or her alleged failure to comply with Tax Code Section 34.08 because Phan had not pleaded either affirmative defense. According to Smith, she was not required to comply with Tax Code Section 34.08 before filing her third-party claims against Phan because she was not seeking “to attack the foreclosure sale under Chapter 34 of the Tax Code.” And even assuming there was a common law claim concerning the validity of the tax sale, she argued “any kind of action challenging the sale may toll the statute of limitations even if filed in the incorrect court.”

The trial court granted Phan's summary judgment motion and dismissed Smith's remaining claims with prejudice.

This appeal followed.

DISCUSSION

In her first issue, Smith argues the trial court erred in granting Casey Lending's motion for summary judgment on her bill of review because she proved she was not provided notice of the dispositive hearing that resulted in the 2017 Judgment. Thus, she argues, she was not required to establish a meritorious defense to prevail on her bill of review. According to Smith, she was not required to prove her defense until a trial on the merits. And because Casey Lending did not move for summary judgment on the other two elements of her bill of review, the trial court could not have granted summary judgment on either ground.

A. Bill of Review

A bill of review is an equitable proceeding to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or direct appeal. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). It is a separate and independent suit, brought in the same court that entered the challenged judgment but under a different cause number. See In re Thompson, 569 S.W.3d 169, 173–74 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

To set aside a judgment by bill of review, the petitioner must plead and prove that (1) she has a meritorious defense to the cause of action alleged to support the judgment, (2) that she was prevented from making by the fraud, accident, or wrongful act of her opponent, (3) unmixed with any fault or negligence of her own. King Ranch, Inc., 118 S.W.3d at 751–52; Caldwell, 154 S.W.3d at 96. If the petitioner alleges that the challenged judgment was rendered without service of process or notice of the dispositive trial setting resulting in the final judgment, she is relieved from establishing the first two elements of the bill of review. See Caldwell, 154 S.W.3d at 96–97 (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)). The petitioner must still prove the third element, however: that “judgment was rendered unmixed with any fault or negligence” on her part. See Caldwell, 154 S.W.3d at 97. But the third element is conclusively established if the petitioner proves she was not served with process or notice of a dispositive trial setting. Id.; see also Jaramillo v. Meadows, 695 S.W.3d 892, 898 (Tex App.—Houston [1st Dist.] 2024, no pet.).

Courts generally employ a two-step inquiry when ruling on a bill of review. Baker v. Goldsmith, 582 S.W.2d 404, 408–09 (Tex. 1979); see also Ramsey v. State, 249 S.W.3d 568, 576 (Tex. App.—Waco 2008, no pet.) (“The Baker pretrial hearing is a ‘suggested procedure’ which a trial court may choose not to employ.”). The court first determines as a pretrial matter whether the petitioner presented prima facie proof supporting her bill of review. Beck v. Beck, 771 S.W.2d 141, 141–42 (Tex. 1989); Baker, 582 S.W.2d at 408–09. If she did not, the court will deny the bill of review and dismiss the case. Beck, 771 S.W.2d at 142; Baker, 582 S.W.2d at 409. If, however, the petitioner establishes the requisite prima facie proof, the court will grant the bill of review and proceed with a trial on the merits. Beck, 771 S.W.2d at 142; Baker, 582 S.W.2d at 409.¹⁰ When a petitioner seeks a bill of review based solely on a claim of lack of notice, the trial court employs a slightly different procedure. The trial court (1) dispenses with any pretrial inquiry into a meritorious defense, (2) holds a trial, at which the petitioner assumes the burden of proof to establish she was not given notice of the dispositive trial setting, and (3) conditioned upon an affirmative finding that the petitioner did not receive notice, allows the parties to revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove her case. Caldwell, 154 S.W.3d at 97–98.

B. Casey Lending Moved for Summary Judgment on its Foreclosure Claim

Contrary to Smith's position, the record reflects that Casey Lending did not move for summary judgment on Smith's bill of review. Rather, Casey Lending moved for summary judgment on its foreclosure claim. Casey Lending argued in its motion for summary judgment and during the hearing on its motion that even if Smith had met the requirements for a bill of review, Casey Lending would prevail at trial on its foreclosure claim because, as a matter of law, Thomas had authority to authorize the taxing authorities to transfer the tax liens on the Property to Casey Lending, including the portions of the liens for Smith's purported one-third undivided interest in the Property.¹¹

The record reflects that several months before filing its motion for summary judgment, Casey Lending filed objections to Smith's bill of review and moved to strike the pleading. Casey Lending argued that Smith was not entitled to relief because she had not alleged she had been prevented from raising a meritorious defense to Casey Lending's foreclosure claim based on fraud, accident, or the wrongful act of an opposing party, and although she alleged she had not received timely notice of the 2017 Judgment as a result of an “official mistake,” she was not relieved from having to prove a meritorious defense because the trial court had not rendered a default judgment against Smith. Casey Lending argued that Smith had received notice of and participated in the August 11, 2017 trial setting, and although she argued she had not received notice of the 2017 Judgment until six months later, Smith waited an additional fourteen months to file her bill of review and offered no explanation for the considerable delay.

Smith responded that Casey Lending's motion to strike her pleadings should be denied because “no rule of procedure ․ provide[d] that pleadings be struck under the [present] circumstances.” According to Smith, Casey Lending was “merely repeating arguments made at the hearing on July, 1, 2019” on her application for a temporary injunction against Phan and Casey Lending and the trial court had granted the temporary injunction. Smith argued that the evidence presented at the hearing demonstrated that although Thomas knew she had acquired an interest in the property from Mary Hope, Thomas had nonetheless signed a property tax loan agreement with Casey Lending without Smith's knowledge and she did not have notice of the loan. According to Smith, the evidence demonstrated that Casey Lending had “obtained judgment [ ]without [her] having received any notice of trial, and an impending final adjudication of the case,” that Smith had not “received notice of the judgment [until] after the time for appeal had passed,” and that “neither Casey, nor any other party ha[d] adduced any evidence that it [had] sent or that she received such notice.”

Citing to Tax Code Section 32.06, Smith argued that Thomas lacked the authority to encumber her one-third undivided interest in the Property or authorize the taxing authorities to transfer the 2006 to 2013 tax liens to Casey Lending. She also argued that Casey Lending did not have a right to equitable subrogation of the tax liens and even if it did, there were questions of material fact concerning the appropriateness of allowing Casey Lending to foreclose on her one-third undivided interest in the Property based on subrogation.

In December 2019, after conducting a hearing on the matter, the trial court denied Casey Lending's motion to strike stating the “motion was without merit.”¹² The trial court then set the case for trial for September 9, 2021. It thus appears from the record that at some point before Casey Lending filed its motion for summary judgment, the trial court granted Smith's bill of review and proceeded to consider Casey Lending's foreclosure claim on the merits. See Burki v. Dansby, No. 01-22-00044-CV, 2023 WL 3235821, at *4 (Tex. App.—Houston [1st Dist.] May 4, 2023, pet. denied) (mem. op.) (“In a bill-of-review proceeding, the merits of the underlying case are reached only if the petition for bill of review is granted.”). Indeed, the transcript of the hearing on Casey Lending's motion for summary judgment reflects that the trial court considered Casey Lending's motion for summary judgment as if the bill of review had been granted and the parties had reverted to their original status as intervening plaintiff (Casey Lending) and defendant (Smith), and thus Casey Lending bore the burden to prove its case on its foreclosure claim as the plaintiff. At the beginning of the summary judgment hearing, the trial court stated:

We are on the record now in Case No. 2016-49408. We're here on Casey Lending's motion for summary judgment. Casey Lending is an intervening plaintiff or counter defendant, but for purposes of this motion [Casey Lending] is an intervening plaintiff.

Would also—there have been two responses filed in response to the motion for summary judgment one on behalf of Tai Phan, who's a third party defendant. And then Ms. Wanda Joyce Smith, who in this capacity is a defendant.

․

So, Mr. Schultz [Casey Lending's counsel], you're the movant. You can sort of set up your motions to the extent you need to. Again, I kind of want to streamline things. I know that there's kind of an extensive procedural history, and I—I remember much of it.

So if you can sort of point me to exactly why you believe you're entitled to summary judgment. And then I'll allow a response on behalf of the parties.

(Emphasis added.) Casey Lending argued that its motion for summary judgment was not untimely or premature. It argued that the trial court had previously denied its objection to Smith's bill of review arguably on a finding of lack of due process, and thus it could now move for summary judgment on the merits of its claim:

Like the same reasons—for the same reasons why a summary judgment motion is appropriate in a regular case to avoid a lot of unnecessary judicial process. It's appropriate right now.

And I'm just saying if we—if we look past—I understand the Court has denied my objection to the bill of review, I think quite awhile ago at this point, many months ago. That if the real issue at that point, that the heart of that decision to deny was that there was a due process violation, which I totally understand, then it is—it does make sense to at this point address what happens next.

Casey Lending then argued that it was entitled to summary judgment at this point on its foreclosure claim because Smith's argument that Casey Lending's liens were invalid was incorrect as a matter of law. The trial court ultimately granted summary judgment in favor of Casey Lending, and in doing so, it ruled on the merits of its underlying claim.¹³ See id. (stating merits of claim are reached only if petition for bill of review granted).

Summary Judgment in Favor of Casey Lending

In its motion for summary judgment Casey Lending argued it was entitled to summary judgment on its foreclosure claim because (1) Smith's April 2014 deed from Mary Hope was invalid and could not “operate as a conveyance” and thus Smith lacked standing to challenge the foreclosure, and (2) Casey Lending's tax liens against the Property were valid and enforceable against the entire Property, including Smith's purported one-third undivided interest.

We review a trial court's order granting summary judgment de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). The movant on a traditional motion for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lujan, 555 S.W.3d at 84. If the movant satisfies its initial burden on the issues expressly presented in the motion, the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See Lujan, 555 S.W.3d at 84. A motion for summary judgment must expressly present the grounds upon which it is made and must stand or fall on those grounds alone. Espalin v. Children's Med. Ctr. Of Dallas, 27 S.W.3d 675, 688 (Tex. App.—Dallas 2000, no pet.). When the summary judgment order does not state the grounds upon which it is based, the party challenging the order must show that each of the independent arguments alleged in the motion is insufficient to support the order. Jones v. Hyman, 107 S.W.3d 830, 832 (Tex. App.—Dallas 2003, no pet.).

A. Validity of Smith's Deed

Casey Lending argued that Smith's deed from Mary Hope was invalid and therefore Smith lacked standing to challenge the foreclosure. According to Casey Lending, Smith's deed does not legally describe the Property and thus “cannot operate as a conveyance” of the Property because it contains a general description of the Property, rather than a metes-and-bounds description, and the legal description includes the wrong street address. Casey Lending argued that when considered as a whole, the deed is ambiguous because the property description “conflicts with itself; its subject and predicate appear to describe different land.” It further contended that the ambiguous property description and the deed conveying Mary Hope's one-third undivided interest in the Property to Thomas suggest that Mary Hope did not intend to convey her interest in the Property to Smith when she executed the deed to Smith.

1. Elements of Valid Conveyance

A valid conveyance of an interest in land “must satisfy the requirements of both the statute of conveyances, Property Code section 5.021, and the statute of frauds, Business and Commerce Code section 26.001.” Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 43 (Tex. App.—Houston [1st Dist.] 2011, no pet.). To be legally effective, a deed generally must contain the following elements: (1) the instrument of conveyance is in writing; (2) the instrument sufficiently describes the interest to be conveyed; (3) the grantor and grantee can be ascertained from the instrument as a whole; (4) the instrument contains operative words or words of grant showing the grantor's intention to convey title to an interest in real property to the grantee; (5) the instrument is properly signed and acknowledged by the grantor; and (6) the instrument is delivered to and, if necessary, accepted by the grantee. ConocoPhillips Co. v. Hahn, 704 S.W.3d 515, 531–32 (Tex. 2024).

When a deed is unambiguous, an appellate court construes the deed as a matter of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 874 (Tex. 2018). Whether a deed is ambiguous is a question of law for the court. See id.; Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). A deed is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Koopmann, 547 S.W.3d at 874. In construing a deed, we must ascertain and give effect to the parties’ intentions as expressed in the writing itself. See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012). If the deed is subject to two or more reasonable interpretations after applying the pertinent rules of construction, the deed is ambiguous, thus creating a fact issue on the parties’ intent. Heritage Res., Inc., 939 S.W.2d at 121.

2. Analysis

Smith's deed identifies the property being conveyed as “real estate, situated at 12230 Fairpoint Dr, Houston, in the County of Alief, State of Texas” and states that the property's “legal description” is “1223 Fairpoint DR LT 1 BLK 3 HUNTINGTON VILLAGE SEC 1” followed by the interlineation, “Harris County.” The deed further states:

Subject to existing taxes, assessments, liens, rights of way and easements of record the grantor [Mary Hope] hereby covenants with the Grantee(s) [Smith] that Grantor [Mary Hope] is lawfully seized of the above granted premises and has good right to sell and convey the same.

Casey Lending argues without elaboration that the deed is ambiguous because the deed's property description “conflicts with itself; its subject and predicate appear to describe different land.”¹⁴ Although the deed incorrectly states that the Property is located in “Alief” County, as opposed to Harris County, and in one instance it misstates the Property's street address as “1223 Fairpoint DR,” the remainder of the deed unambiguously reflects that the subject property is located at 12230 Fairpoint Dr, Houston, Harris County, Texas and the legal description of the property is “LT 1 BLK 3 HUNTINGTON VILLAGE SEC 1” in Harris County, Texas.¹⁵ See Koopmann, 547 S.W.3d at 874 (stating deed is ambiguous when its meaning is uncertain and doubtful or reasonably susceptible to more than one interpretation and whether deed is ambiguous is question of law for court); see also Piranha Partners v. Neuhoff, 596 S.W.3d 740, 745 n.12 (Tex. 2020) (“When part of a deed's property description is incorrect, we will disregard that part ‘as surplusage’ and enforce the deed if the remainder of the description identifies the land with sufficient certainty.”) (citing Reserve Petroleum Co. v. Harp, 148 Tex. 448, 226 S.W.2d 839, 841 (1950)). The deed thus contains accurate information sufficient to allow someone “familiar with the locality to identify the premises with reasonable certainty.” See Buckingham v. McAfee, 393 S.W.3d 372, 376 (Tex. App.—Amarillo 2012, pet. denied) (stating “a valid conveyance requires a description (of the property being conveyed) sufficient to allow a party familiar with the locality to identify the premises with reasonable certainty”).

After adequately describing the Property, the deed states that Mary Hope “hereby covenants with [Smith] that [Mary Hope] is lawfully seized of the above granted premises and has good right to sell and convey the same.” When considered as a whole, the deed unambiguously reflects that Mary Hope intended to convey her one-third undivided interest in the Property to Smith when she executed the deed to Smith. See Hahn, 704 S.W.3d at 531–32 (stating legally effective deed must contain operative words or words of grant showing grantor's intention to convey title to interest in real property to grantee); El Paso Field Servs., 389 S.W.3d at 805 (stating courts ascertain and give effect to parties’ intentions as expressed in writing itself).

Casey Lending argues that the deed conveying Mary Hope's one-third undivided interest in the Property to Thomas demonstrates that Mary Hope did not intend to convey her interest in the Property to Smith when she executed the deed to Smith. Because Smith's deed is unambiguous with respect to Mary Hope's intent to convey her interest in the Property to Smith, we cannot consider the deed from Mary to Thomas. See Hughes v. CJM Res., LP, 640 S.W.3d 623, 628 (Tex. App.—Eastland 2022, no pet.) (“In general, absent ambiguity, fraud, accident, or mistake, courts will not consider extrinsic evidence in construing the intentions of the parties to the deed.”); see also Wright v. Jones, 674 S.W.3d 704, 713 (Tex. App.—Waco 2023, no pet.) (stating “extrinsic evidence of intent is admissible only if the deed is ambiguous on its face”).

Smith's deed unambiguously describes the interest being conveyed from Mary Hope to Smith and reflects Mary Hope's intention to convey her one-third undivided interest in the Property to Smith. See Hahn, 704 S.W.3d at 531–32 (stating legally effective deed sufficiently describes interest being conveyed and reflects grantor's intention to convey title to interest in real property to grantee).¹⁶ Because Smith's deed is legally effective, Smith has a cognizable interest in the Property and thus standing to challenge Casey Lending's foreclosure on the Property. Casey Lending was thus not entitled to summary judgment on this ground. See Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 489 (Tex. 1988) (“[W]hen[, as here, a] third party has a property interest, whether legal or equitable, that will be affected by [a foreclosure] sale, the third party has standing to challenge such a sale to the extent that its rights will be affected by the sale.”).

B. Tax Code Section 32.06

Casey Lending also argued it was entitled to judgment as a matter of law on its foreclosure claim because it had properly acquired the tax liens levied against the entire Property for tax years 2006-2013 pursuant to Section 32.06 of the Tax Code and, as a transferee under that statute, Casey Lending was subrogated to the taxing authorities’ right to foreclose on the tax liens. According to Casey Lending, even if Smith has a one-third undivided interest in the Property, Smith's deed from Mary Hope expressly stated that Smith had taken her interest in the Property subject to pre-existing taxes, which included the tax liens then held by the taxing authorities for tax years 2006 through 2013, which Thomas authorized the taxing authorities to transfer to Casey Lending, and, as a co-tenant, Thomas “had the power to unilaterally authorize a tax lien transfer encumbering the entire property” pursuant to Section 32.06.

Smith argues that the plain language of Section 32.06 requires that when there are multiple owners of the same property, all owners must consent to the tax lender's payment of the taxes levied against the property and the transfer of the liens securing payment of the taxes to the tax lender. According to Smith, she was not aware that Thomas had executed the Promissory Note in favor of Casey Lending and a deed of trust pledging the entire Property as collateral for the Promissory Note. She argued she had not authorized Casey Lending to pay the delinquent taxes for tax years 2006-2013 and the taxing authorities to transfer the liens securing payment of those taxes to Casey Lending, and she did not authorize Thomas to act on her behalf and encumber or pledge her interest in the Property.

The primary issue presented in Casey Lending's motion for summary judgment and on appeal is whether Thomas, acting individually, could authorize Casey Lending to pay the delinquent taxes levied against the entire Property and authorize the taxing authorities to transfer the tax liens to Casey Lending pursuant to Section 32.06 without Smith's consent.

In its motion for summary judgment and its appellate briefing, Casey Lending relies primarily on In re Morales, 520 B.R. 544 (W.D. Tex. 2014), which Casey Lending argues “holds that only one of several property owners can authorize the transfer of preexisting tax liens from taxing units to a tax lender.” Casey Lending's reliance on In re Morales is misplaced. In In re Morales, the borrower and her six siblings each inherited a one-seventh interest in real property. See 520 B.R. at 546. The borrower subsequently executed a promissory note and executed a tax lien contract with Sombrero Capital, LLC, presumably pursuant to Section 32.06, and signed an affidavit as the property's owner authorizing the taxing authority to transfer the tax lien to Sombrero. Id. at 546–47. The other six siblings, who were not parties to the loan, argued that Sombrero's tax lien could not attach to their interest in the property because they had not authorized the taxing authority to transfer the lien to Sombrero. Id. at 547. On appeal, Ovation Services, Sombrero's servicer, argued that “under the Texas Tax Code, when [the borrower] signed the promissory note, deed of trust, and tax lien contract, she encumbered the entire commercial lot with the tax lien and deed of trust” and that the borrower “had the requisite authority on behalf of all of the undivided interests in the commercial lot to encumber the entire property on her own.” Id.

Citing to Sections 32.05 and 32.07(b) of the Tax Code, the court in In re Morales stated that ad valorem property taxes in Texas have first lien priority on real property and “the person in whose name a property is required to be listed is personally liable for the taxes imposed on the property.” Id. at 549 (citing Tex. Tax Code §§ 32.05 and 32.07(b)). The court further stated:

Any property owner, or combination of property owners, may borrow funds from a lender to pay off delinquent property taxes. See Tex. Tax Code § 32.065(a) (West 2013) (“Section 32.06 does not abridge the right of a property owner to enter into a contract for the payment of taxes.”).

Id. The opinion neither cites to Section 32.06 nor analyzes the statute. The court goes on to say that whether the borrower “could encumber the remaining 6/7th undivided interests of her other siblings” was not “the determinative question,” and concluded that “the issue is determined by whether Ovation's deed of trust and transfer of tax lien was subrogated to the ad valorem tax lien of Guadalupe County.” Id. at 550.

After discussing Texas Supreme Court and Fifth Circuit Court of Appeals’ opinions addressing equitable and contractual subrogation, the court in In re Morales held:

Sombrero properly perfected its lien interest. In doing so, it took the lien position of Guadalupe County, including all rights and remedies afforded the taxing authority. Therefore, Sombrero also took a security interest as to the entire commercial lot.

Id. at 552; id. at 551–52 (discussing Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996), LaSalle Bank Nat'l Ass'n v. White, 246 S.W.3d 616 (Tex. 2007), and Vogel v. Veneman, 276 F.3d 729, 734 (5th Cir. 2002)). The holding in In re Morales is thus based on the common law principles of equitable and contractual subrogation, not on a lienholder's right to statutory subrogation pursuant to Section 32.06. See In re Morales, 520 B.R. at 550–52 (discussing Texas and federal court opinions addressing equitable and contractual subrogation). We thus find the federal bankruptcy court's opinion in In re Morales to be neither binding nor persuasive. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (“While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court ․ they are obligated to follow only higher Texas courts and the United States Supreme Court.”) (emphasis in original).

Similarly, Casey Lending's reliance on Benchmark Bank and LaSalle Bank and other Texas court opinions for the proposition that Texas common law allows a co-tenant to take out a loan to protect the entire property from foreclosure is unavailing because these opinions involve claims of equitable and contractual subrogation, not statutory subrogation under Section 32.06. Although Casey Lending asserts that it is entitled to equitable subrogation, as well as statutory subrogation under Section 32.06, Casey Lending moved for summary judgment based solely on its claim of statutory subrogation under Section 32.06.

After appellate briefing was completed, Casey Lending filed in this court a letter of supplemental authority asserting that the Amarillo Court of Appeals had issued a memorandum opinion in Runels v. Tax Loans USA, Ltd., No. 07-22-00130-CV, 2023 WL 5488438 (Tex. App.—Amarillo Aug. 24, 2023, pet. denied) (mem. op.) (“Runels I”) that interpreted Section 32.06 to “provide that if more than one person owns the property at issue, [ ] fewer than all of them are free to contract for the transfer of a tax lien to a creditor who provides funds for the payment of property taxes.” Casey Lending argued that Runels I was directly on point.

In that case, Runels and his siblings inherited real property that “was encumbered by a tax lien, which attached upon the failure to pay the requisite taxes for various years preceding 2014.” Id. at *1. Tony, Runels’ brother, “obtained a loan from [Tax Loans USA] to pay the delinquent debt and executed the requisite documents to permit it to acquire the tax lien” from the taxing authority pursuant to Tax Code Section 32.06. Id. After Tony defaulted on the loan, Tax Loans USA sued to adjudicate the debt owed and foreclose upon the transferred tax lien.¹⁷ Id. Runels and Tax Loans USA filed competing motions for summary judgment and the trial court granted Tax Loans USA's motion and denied Runels’ motion as moot. Id.

On appeal, Runels argued that the trial court had erred in granting Tax Loans USA's motion for summary judgment because Section 32.06 of the Tax Code “does not permit fewer than all owners of the property in question to comply with its terms,” and because Runels did not contract with Tax Loans USA pursuant to 32.06, Tax Loans USA “could not acquire the tax lien upon which it endeavored to foreclose.” Id. According to Runels, Section 32.06 “does not permit fewer than all owners of a particular parcel from completing the steps necessary to afford a lender the opportunity to acquire the tax lien.” Id. at *2.

Applying the rules of statutory construction, Runels I stated:

With those rules in mind, we see that the provision begins with the phrase “a property owner may authorize ․”. It does not say “the property owners,” “all property owners,” “the property owner or owners,” “the class or group of property owners,” “every property owner,” or the like. Instead, it says, “a property owner.” The common meaning of “a” followed by a noun denotes singularity, that is, one. We see no ambiguity in the language. Nor do we find it unclear or our interpretation absurd. Indeed, the entire process likens to a statutory equivalent of equitable subrogation where one paying the debt of another stands in the shoes of the creditor. See Frymire Eng. Co. v. Jomar Int. Ltd., 259 S.W.3d 140, 142 (Tex. 2008) (stating that equitable subrogation allows a party who has paid a debt for another to step into the shoes and pursue the claims of the payment's recipient). That is, in effect, what the statute permits. Moreover, the individual property owner is not creating some new encumbrance or lien on the entire property. Rather, the lien already exists in favor of the taxing unit due to the non-payment of taxes, not because of the owner's invocation of § 32.06.

Thus, we interpret the statute as saying that if more than one person owns the property, fewer than all are free to pursue the § 32.06(a-1) avenue. And, the taxing unit remains free to transfer any existing tax lien to the creditor who provided the needed funds. See § 32.06(a-2) (stating that “[e]xcept as provided by Subsection (a-8), a tax lien may be transferred to the person who pays the taxes on behalf of the property owner ․ for: (1) taxes that are delinquent at the time of payment; or (2) taxes that are due but not delinquent at the time of payment ․”).

Id. at *2. Runels I, however, found there was a material issue of fact regarding the amount Tax Loan USA was entitled to recover through the foreclosure of the lien, reversed the trial court's granting of summary judgment in Tax Loans USA's favor, and remanded to the trial court for further proceedings. Id. at *3–4.

On remand to the trial court, Runels and Tax Loans USA filed new, competing motions for summary judgment on Tax Loans USA's foreclosure claim, the court granted Tax Loan USA's motion, and Runels appealed. See Runels v. Tax Loans USA, LTD, No. 07-24-00246-CV, 2024 WL 4994307 (Tex. App.—Amarillo, Dec. 5, 2024, no pet.) (mem. op.) (“Runels II”). In Runels II, Runels argued that the loan agreement between Tony and Tax Loan USA was “illegal to the extent it purported to give [Tax Loans USA] the right to acquire from and enforce” the transferred tax lien because all the property owners are not parties to the agreement. See id. at *1. The court stated that this was “the very argument [the court] addressed and rejected” in Runels I and that the doctrine of “law of the case” ordinarily binds a court of appeals to “its initial decision in a subsequent appeal involving the same case.” Runels II, 2024 WL 4994307 at *1–2. The law of the case doctrine, however, is not absolute and a court may exercise its discretion and reconsider its prior opinion “when the earlier decision was clearly wrong.” Id. at *2 (citing Davis v. Highland Coryell Ranch, LLC, 578 S.W.3d 242, 244 (Tex. App.—Amarillo June 18, 2019, pet. denied)). According to the court, Runels implicitly invoked this exception to the law of the case doctrine by arguing that Runels I’s holding was contradicted by newly cited authority, Mahan v. Lehman, No. 03-00-00382-CV, 2001 WL 252075 (Tex. App.—Austin 2001, no writ). After discussing Mahan, the court concluded that while “the actual holding in Mahan is inapposite to our case,” the “authority and dicta mentioned by the Mahan court are of interest,” and the “authority of interest is [the opinion in Trimble v. Farmer, 157 Tex. 533, 305 S.W.2d 157 (1957)] to which Mahan alluded.” Runels II, 2024 WL 4994307, at *2.

In Trimble, Lucy owned an undivided nine-tenths interest in a parcel of property and the remaining one-tenth was owned by Effie. Trimble, 305 S.W.2d at 159. After the taxing authorities threatened to foreclosure on the property, Lucy arranged for Farmer to pay the delinquent taxes due on the property and in exchange, Lucy would request that the taxing authorities assign their tax liens against the property to Farmer pursuant to Section 32.06’s predecessor, Article 7345a, Vernon's Annotated Texas Civil Statutes. Id. at 159. Farmer sued Lucy's estate to enforce the transferred tax lien and foreclose on the property and Effie intervened in the suit. Id. at 158. After a bench trial, the court rendered judgment in Farmer's favor and ordered the property to be sold. See id. at 159. On appeal, Effie argued that the trial court erred in ordering her one-tenth interest in the property to be sold to pay off the tax lien because Lucy had no right to encumber Effie's one-tenth interest with a tax lien. See id. at 160–61. Article 7345a, which “sets out a method whereby one paying taxes due against property may receive a transfer of the tax lien against the property,” “specifically requires that for a disinterested third party to acquire the tax lien against any property by the payment of taxes thereon, such third party must deliver to the proper taxing official, authorized to collect the taxes, a request of ‘the owner of said property’ ” and “further provides that the tax lien may be transferred under the conditions set out in Art. 7345a, ‘and not otherwise.’ ” Id. at 161. The court held that Lucy could not encumber or convey Effie's one-tenth interest in the property, because Lucy “was not an ‘owner’ of such one-tenth interest so that she could request the taxing authorities to transfer the tax lien” to Farmer. According to Trimble, Farmer did not have a lien on Effie's one-tenth interest because Effie did not request a transfer of the tax lien on her one-tenth interest to Farmer. Id. at 161. Instead, Farmer “has a valid and enforceable lien upon the nine-tenths interest in the property owned by Lucy ․” Id. at 162 (emphasis added). “It is only this nine-tenths interest which may be sold for the payment of the amount paid.” Id. According to Runels II, Trimble held that “neither the entire tax lien [held by Farmer] nor [the] ensuing foreclosure upon same were invalidated, but only the proportion equating the percentage of property unowned by the tax debtor,” Effie. Runels II, 2024 WL 4994307, at *3.

Relying on Trimble, Runels II held that Tony was able to “invoke the provisions of § 32.06 of the Tax Code and arrange for [Tax Loans USA] to satisfy the tax lien encumbering [only Tony's] ownership interest” and thus Tax Loans USA “could acquire and enforce the tax lien to the extent of Tony's undivided interest.” Id. The court concluded that its holding was consistent with its decision in Runels I because in Runels I, “Runels asserted that the entire lien was unenforceable or void because all the landowners had not joined in Tony's agreement” with Tax Loans USA, and because Runels I was an appeal from a summary judgment, the court was limited to the grounds mentioned within the motion. Id. The court further stated:

In short, Runels’ complaint about Tony's contract with USA being illegal in its entirety is baseless. Tony could contract with USA, as he did. What neither Tony nor USA could do is utilize that contract and assignment as a means of divesting co-owners of the property of their interests if they were strangers to the arrangement.

Id.

In a second supplemental letter of authority, Casey Lending argues that Runels II’s interpretation of Section 32.06 is erroneous because it renders Texas Tax Code Section 33.46 superfluous. Casey Lending argues that under the Tax Code, a tax lien attaches to the entire property, not just the undivided interest of the property owner who authorizes the payment of delinquent property taxes by a third party, and Section 33.46 of the Tax Code provides a remedy for a co-tenant seeking to avoid the lien created by a co-owner—partition. Section 33.46 states that if a suit is filed to foreclose on a tax lien levied against real property that is owned in undivided interests by two or more persons, any affected owners may have the property partitioned, resulting in an apportionment of the taxes, and related costs and expenses to the owners of the property in proportion to the interest of each. See Tex. Tax Code § 33.46(a)-(b). If an owner then pays the taxes and related costs and expenses apportioned to him, the partitioned property is then free from further claim or lien for the taxes involved in the suit. Id. § 33.46(b). However, if the owner refuses to pay the property tax amount apportioned to him, the suit shall proceed against him for that amount. Id.

Casey argues that “by limiting a tax lien to only the interest of the co-owner authorizing the loan,” Runels II “renders Section 33.46(b) superfluous.” We disagree that Runels II's holding that a property owner can only authorize a taxing authority to transfer a lien on its property interest, as opposed to a co-tenant's interest, renders Section 33.46(b) superfluous. On the contrary, Runels II's holding means that the right to partition under Section 33.46(b) is not necessary to protect the property interest of a co-tenant who does not authorize the transfer of a lien under Section 32.06 because the transferred tax lien is only valid with respect to the interest owned by the co-tenant who authorized the lien transfer under Section 32.06. The right to partition under Section 33.46(b) protects a co-tenant's undivided property interest when the taxing authorities file suit to foreclose on a lien on the entire property.

Casey Lending argues that Runels II was also “improperly decided because it relied on [Trimble,] a 1957 opinion construing the 1933 version of the Tax Code.” We disagree with Casey Lending on this point as well. Section 32.06(a-1) and (a-2) of the Tax Code state:

(a-1) A property owner may authorize another person to pay the taxes imposed by a taxing unit on the owner's real property by executing and filing with the collector for the taxing unit:

(1) a sworn document stating:

(A) the authorization for payment of the taxes;

(B) the name and street address of the transferee authorized to pay the taxes of the property owner;

(C) a description of the property by street address, if applicable, and legal description; and

(D) notice has been given to the property owner that if the property owner is disabled, the property owner may be eligible for a tax deferral under Section 33.06; and

(2) the information required by Section 351.054, Finance Code.

(a-2) Except as provided by Subsection (a-8), a tax lien may be transferred to the person who pays the taxes on behalf of the property owner under the authorization described by Subsection (a-1) for:

(1) taxes that are delinquent at the time of payment; or

(2) taxes that are due but not delinquent at the time of payment if the property is not subject to a recorded mortgage lien.

Tex. Tax Code § 32.06(a-1)–(a-2) (emphasis added). Article 7345a, sec. 1, which Trimble interpreted, states that a taxing authority is “hereby authorized and empowered and it shall be his duty to transfer and convey to any person or company that pays to the State, county or any subdivision thereof mentioned hereinbefore, any taxes due upon real property at the request of the owner of said property, the tax lien held by such State, county, or subdivision to secure the payment of such taxes, under conditions hereinafter provided and not otherwise.” We see no meaningful distinction between Section 32.06, which states that “[a] property owner may authorize another person to pay the taxes imposed by a taxing unit on the owner's real property,” and its predecessor, Article 7345a, which requires taxing authorities to transfer, to a person or company who pays “any taxes due upon real property at the request of the owner of said property,” the tax liens held to secure payment of such taxes.¹⁸

We are bound by Trimble and although Runels II is not binding authority, we find its analysis, particularly its discussion of Trimble, to be persuasive. Pursuant to Runels II and Trimble, we hold that although Thomas had the ability to contract with Casey Lending to pay the portion of the delinquent taxes levied against his interest in the Property and Casey Lending could acquire and enforce the tax lien with respect to the portion applicable to Thomas’ interest, Thomas could not contract with Casey Lending to pay the taxes levied against Smith's purported one-third undivided interest in the Property, nor could Casey Lending enforce the portion of a tax lien levied against Smith's property interest.

We thus hold the trial erred by granting summary judgment in favor of Casey Lending on its claim of statutory subrogation under Section 32.06. We express no opinion as to whether Casey Lending had the right to foreclose on Smith's property interest on another basis, including under the doctrine of equitable subrogation.

Smith's Motion to Reconsider

On remand, Phan moved for summary judgment on Smith's third-party claims. Smith filed a combined motion to set aside the order granting Casey Lending's motion for summary judgment, response to Phan's motion for summary judgment, and response to Phan's motion to vacate the temporary injunction. Casey Lending in turn filed a response to Smith's motion to reconsider. To the extent Smith relies on arguments raised for the first time in her motion to reconsider the trial court's order granting Casey Lending's motion for summary judgment or in Casey Lending's response to her motion, we decline to address those arguments on appeal.

“When a motion to reconsider is filed after the rendition of summary judgment, a trial court has the discretion to consider the grounds in the post-judgment motion and supporting proof, and reaffirm its summary judgment based on the entire record.” PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723, 729 (Tex. App.—San Antonio 2014, pet. denied) (cleaned up) (quoting Charbonnet v. Shami, No. 04-12-00711-CV, 2013 WL 2645720, at *5 (Tex. App.—San Antonio June 12, 2013, pet. denied) (mem. op.)). However, the trial court also has the discretion “to simply deny a motion filed after the entry of summary judgment without considering its substance.” Id. at 730. In that case, “an appellate court need only consider arguments and evidence presented prior to the summary-judgment hearing.” Id. But if the trial court “affirmatively indicates on the record that it accepted or considered the evidence attached to a motion to reconsider, this court reviews ‘the summary judgment based upon the grounds and proof in both prejudgment and post-judgment filings.’ ” Id. (quoting Timothy Patton, Summary Judgments in Texas, § 7.06[1] (3d ed. 2012)).

Smith's motion to reconsider the trial court's ruling on Casey Lending's motion for summary judgment was denied by operation of law. Consequently, there is nothing in the record affirmatively indicating that the trial court accepted or considered the arguments raised for the first time in Smith's motion to reconsider or in Casey Lending's response to the motion to reconsider.¹⁹ See PNP Petroleum, 438 S.W.3d at 730 (stating “efficacy of a post-judgment motion to preserve a complaint for appellate review depends upon whether the trial court affirmatively considers the new grounds and proof as memorialized by a written order”) (quoting Charbonnet, 2013 WL 2645720, at *5).

We thus do not consider Smith's arguments presented for the first time in her motion for reconsideration or Casey Lending's arguments raised in response to Smith's motion. See PNP Petroleum, 438 S.W.3d at 730.²⁰

Counterclaims and Third Party Claims

When Smith filed her bill of review challenging the 2017 Judgment, she included in the same document a petition advancing new counterclaims against Casey Lending and new third-party claims against Phan for declaratory judgment, suit to quiet title, and trespass to try title.²¹ Smith filed her combined bill of review and petition in the same court that entered the 2017 Judgment. Rather than filing the pleading as a separate suit, however, Smith filed her pleading under the same cause number as the original suit.

Casey Lending objected to Smith's multifarious pleading. It argued, among other things, that because the trial court's plenary power over the 2016 Tax Suit had expired, the trial court lacked jurisdiction to consider Smith's new counterclaims and third-party claims. With respect to Smith's bill of review, Casey Lending argued the bill of review was improper because it was filed under the same cause number as the original suit rather than as an independent suit with a new cause number.

A bill of review is a separate and independent suit, brought in the same court that entered the judgment being attacked under a different cause number. See In re Thompson, 569 S.W.3d 169, 173–74 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Amanda v. Montgomery, 877 S.W.2d 482, 485 (Tex. App.—Houston [1st Dist.] 1994, no pet.). “The requirement that a bill of review be filed in the same court that rendered the judgment under attack is a matter of jurisdiction, not merely a matter of venue.” Richards v. Commission for Lawyer Discipline, 81 S.W.3d 506, 508 (Tex. App.—Houston [1st Dist.] 2002, no pet.). But the incorrect filing of a bill of review using the same cause number as the original proceeding is not a jurisdictional defect. See In re Thompson, 569 S.W.3d at 174 (“Some courts have held that a bill of review should not be dismissed solely on the basis that it was misfiled in the same case as the challenged judgment, rather than in a new action.”). The trial court thus did not err in denying Casey Lending's motion to strike the bill of review on that basis.

Although a trial court may consider a bill of review incorrectly filed in the same cause number as the original proceeding, the filing of the bill of review challenging the final judgment in the original proceeding does not revive the court's plenary power to entertain new claims. Cf. Wells v. Maxey, No. C14-92-00789-CV, 1993 WL 143364, at *3 (Tex. App.—Houston [14th Dist.] May 6, 1993, writ denied) (not designated for publication) (“Appellant also states the bill of review served to revive the original cause. We disagree.”). Generally, a trial court's plenary power terminates thirty days after the date the judgment is signed. Tex. R. Civ. P. 306a.1, 329b(d). Smith filed her combined bill of review and petition asserting new counterclaims against Casey Lending and new third-party claims against Phan in June 2019. The trial court's plenary power over the 2017 Judgment expired long before Smith filed her counterclaims and third-party claims in the 2016 Tax Suit. We thus agree with Casey Lending that the trial court lacked jurisdiction to consider them.

Because the trial court lacked jurisdiction over Smith's counterclaims against Casey Lending and third-party claims against Phan, those claims must be dismissed for lack of jurisdiction.

Conclusion

We dismiss Smith's counterclaims against Casey Lending and third-party claims against Phan for lack of jurisdiction. We reverse the trial court's summary judgment in favor of Casey Lending and remand for further proceedings.²² Any pending motions are dismissed as moot.

CONCURRING OPINION

This case illustrates a point that Justice Young made for the supreme court in Mitschke v. Borromeo, 645 S.W.3d 251, 257 n.11 (Tex. 2022): Sometimes lawyers do not inform the appellate court of all relevant precedents, and as a result a busy appellate court may inadvertently depart from principles of stare decisis.

Justice Young's words deserve to be set out verbatim: “Most such ‘violations’ [of stare decisis] are presumably inadvertent, as when parties fail to identify binding precedents. Despite lawyers’ and judges’ best efforts, deviations of that sort are inevitable, especially in busy and large appellate courts.” Id.

Such a failure in advocacy may have occurred in Gold v. Gold, 145 S.W.3d 212 (Tex. 2004) (per curiam), where neither side's merits briefing cited any of the supreme court's precedents on the question whether the appeal once known as writ of error, now called a restricted appeal, is a legal remedy that must be exhausted by a party who assails a judgment by an equitable bill of review. Controlling authority existed, which petitioner was required to disclose (if known) and respondent was incentivized to cite (again, if known). Unfortunately, the briefing left the impression that the supreme court had never considered the question.

Yet the court had done so. The court answered the question more than 100 years earlier in Weaver v. Vandervanter, 84 Tex. 691, 19 S.W. 889 (1892), where the court said the opposite of what it said in Gold: “There was ample time within which to prosecute a writ of error. Appellant could, therefore, have availed himself of an adequate remedy at law. By virtue of an elementary principle he will not be permitted to maintain this suit in equity.” Id. at 889. More will be said about this, but the point for now is just that it would have been helpful for the Gold briefing to remind the court of what it wrote 112 years earlier in Weaver.

Nor did the briefing mention the supreme court's opinions in Reynolds v. Volunteer State Life Insurance Co., 80 S.W.2d 1087 (Tex. Civ. App.—Eastland 1935, writ ref'd), and Birge v. Conwell, 105 S.W.2d 407 (Tex. Civ. App.—Amarillo 1937, writ ref'd). Writ-refused cases after June 14, 1927, are of course supreme court decisions. See, e.g., Latham v. Sec. Ins. Co. of Hartford, 491 S.W.2d 100, 102 (Tex. 1972). As we shall see, those supreme court opinions handled the issue just the way Weaver handled it. But when controlling precedents stand alone in a forest and nobody cites them, how can the reader hear about them?

I.

The final judgment was signed on October 17, 2017. It went unassailed by motion for new trial, ordinary appeal, or a restricted appeal (f/k/a appeal by writ of error). It was assailed a year and a half later in a bill of review, where appellant Wanda Smith says that she received a copy of the judgment in the mail “in April 2018, six months after its entry.” She had time to file a restricted appeal, which comes with a six-month deadline. Tex. R. App. P. 26.1(c). In fact, she would have had enough time to do so even if the judgment had come in the mail on the last day of April 2018, because that would still lie within the 15-day grace period provided by Rule of Appellate Procedure 26.3, a period that applies to restricted appeals. Stancu v. S. Methodist Univ., No. 05-21-00666-CV, 2022 WL 2763354, at *2 (Tex. App.—Dallas July 15, 2022, pet. denied) (mem. op.); Wray v. Papp, 434 S.W.3d 297, 299 (Tex. App.—San Antonio 2014, no pet.).

With Smith's own version of events confirming that she had time to bring a restricted appeal, the question becomes whether she alleged and proved a reason for failing to do so. The answer is No. She thus comes within the holding in Weaver that such a movant “will not be permitted” to pursue a bill of review:

The present suit is a proceeding in equity instituted in the same court October 11, 1889, by the appellant, in the nature of a bill of review․

․ If the judgment was erroneous, we see no reason why the jurisdiction of the appellate court might not have been invoked to set it aside. The appellant alleges that he was deprived of an appeal by the negligence of his attorney; but he urges no reason whatever for failing to resort to the cumulative remedy of the writ of error. The judgment was entered in March. This proceeding was begun in the succeeding October. There was ample time within which to prosecute a writ of error. Appellant could, therefore, have availed himself of an adequate remedy at law. By virtue of an elementary principle he will not be permitted to maintain this suit in equity.

Weaver, 19 S.W. at 889 (emphasis added).

Just as was true of Mr. W.M. Weaver back in 1892, Smith “urges no reason whatever for failing to resort to” the remedy of a restricted appeal. That unexplained failure foreclosed relief by bill of review for Mr. Weaver, and stare decisis ought to mean treating similarly situated litigants in a similar fashion.

The same point can be made about the supreme court's decision in Reynolds, but before going further, it may be useful to discuss the policy rationales beneath this area of law. Those policy concerns show that Weaver and Reynolds are not just precedents, but precedents built on solid reasons.

II.

Start with the finality of judgments. This policy has led the supreme court to constrain the bill of review with vigorous language:

• Stringent – “We have long recognized the importance of according finality to judgments, and we have held courts to stringent bill of review standards to protect that policy favoring finality.” Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 510 (Tex. 2010).

• Narrow – “The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

• Extreme jealousy – “Such bills seeking relief from final judgments, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds upon which interference will be allowed are, confessedly, narrow and restricted.” Johnson v. Templeton, 60 Tex. 238, 239 (1883).

It is no exaggeration to say that this policy concern about the finality of judgment has roots going back at least as far as Goss v. McClaren, 17 Tex. 107, 120–21 (1856), a case that winning counsel cited to the court in Weaver. See 84 Tex. at 692, 19 S.W. 889.

One can see this policy's effects not only in cases involving a bill of review, but also in cases where an injunction was sought to stop a judgment's enforcement. In the early years of Texas law, litigants would often fight a prior judgment with a request for an injunction and a bill of review. In Bryorly v. Clark, 48 Tex. 345, 350 (1877), a litigant sought both injunctive relief and an order setting aside a prior judgment that he had failed to pursue by motion for new trial. Had he filed a motion for new trial, he either would have prevailed or would have had the right to appeal; yet he did not. Id. at 354. The supreme court barred resort to equitable relief because the court saw “no excuse for resorting to the circuitous remedy of a separate suit.” Id. The court reached a similar conclusion in Hamblin v. Knight, 81 Tex. 351, 16 S.W. 1082, 1082–83 (1891), and Duncan v. Smith Bros. Grain Co., 113 Tex. 555, 260 S.W. 1027, 1030 (1924).

This exhaustion of remedies principle applies to any legal remedy that assails a judgment—be it a motion for new trial, an ordinary appeal, a writ of error appeal, or an appeal by writ of certiorari. See Galveston, H. & S.A. Ry. Co. v. Ware, 74 Tex. 47, 11 S.W. 918, 919 (1889) (injunction barred by failure to seek certiorari: “We are of opinion, however, that the general rule of equity should apply; and that if the defendant in the void judgment has had an opportunity to avail himself of a legal remedy to vacate it, and has neglected to make use of it, relief by injunction should be denied”). If such a legal remedy goes unused, the finality of judgments will carry the day unless the movant affirmatively shows an excuse for that failure.

Hence, the 1892 decision in Weaver was not an aberration or stateless nomad. It grew out of other supreme court pronouncements, such as Goss (1856), Bryorly (1877), Ware (1889), and Hamblin (1891). Were any of these cases cited in the Gold briefing? No. Every pre-Gold case just listed here went unmentioned.

III.

After these nineteenth century cases, it cannot have surprised anyone when the twentieth century supreme court rejected a bill of review in Reynolds v. Volunteer State Life Insurance Co. There the appellant had the time to pursue a writ of error appeal but failed to do so and gave no explanation for the failure. That was fatal:

The appellant Reynolds knew the suit was pending against him, and he was not only warned that a judgment would be taken therein on January 12, 1931, but he thereafter learned that it was so taken, and such information was acquired in time for him to have made a motion for a new trial, or to set the judgment aside, at the same term of court, and appeal therefrom in the event of an adverse ruling. He had a still greater period of time in which to prosecute an appeal by writ of error to the appellate court, and thereby set aside the judgment, which he now attempts to attack in this proceeding in equity.

Under such circumstances we understand it has long been a well-established rule that before a litigant is entitled to resort to the equitable remedies of bill of review or injunction for relief against a judgment, he must allege and prove, preliminary thereto, that he has not failed to resort to legal remedies available to him. In other words, it is imperative under such circumstances that the litigant first exhaust legal remedies, or show that they are not available or adequate.

Reynolds, 80 S.W.2d at 1090 (emphasis added). To back up its statement about the “well-established rule,” Reynolds examined three prior supreme court decisions. See id. at 1091. It ended with Judge Ocie Speer's opinion in Southern Surety Co. v. Texas Oil Clearing House, 281 S.W. 1045 (Tex. Comm'n App. 1926, judgm't adopted), which applied the same rule. See 80 S.W.2d at 1092.

Two years after Reynolds, the supreme court rejected a bill of review in Birge v. Conwell, and it again referred to what was then called an appeal by writ of error: “The bill of review is an equitable remedy and cannot be used to take the place of a motion for new trial, appeal, or writ of error.” Birge, 105 S.W.2d at 408 (emphasis added). “It has never been the law that one who is negligent in the matter of filing and urging a motion for a new trial or in perfecting an appeal or writ of error may avoid the consequences through the medium of a bill of review.” Id. at 408–09.

Thus, by 1937 the supreme court had repeatedly pronounced and repeatedly held that the unexplained failure to pursue a writ of error appeal bars resort to a bill of review. Did anybody mention any of these authorities in the briefing in Gold? Alas, no.

IV.

Fast forward to the end of the twentieth century, and one will find that the high court never questioned, reexamined, or overruled Weaver, Reynolds, or Birge. To the contrary, as the century drew to a close and the amended Rules of Appellate Procedure arrived in 1997, lawyers and lower courts universally understood that if a party could pursue appeal by writ of error, the party had to exhaust that remedy or allege and prove the reason for failing to do so. This fact is readily established.

When serving on the Second Court, Justice David Keltner once faced a bill of review plaintiff who could have “appealed to this court on application for writ of error within six months from the signing of the judgment,” but failed to do so. Steward v. Steward, 734 S.W.2d 432, 434 (Tex. App.—Fort Worth 1987, no writ) (op. on reh'g). He explained that this failure cost her the case: “Instead, Jane chose the bill of review. In so doing she undertook a much greater burden than in a regular appeal or an appeal by writ of error. A bill of review is a different sort of creature.” Id. “As a result, we hold that the facts alleged in Jane's petition precluded her from proceeding on a petition for bill of review because she failed to state facts which would excuse her failure to proceed by appeal or writ of error.” Id. at 436.

Justice Keltner's view was shared by the Twelfth Court: “First National had six months after the default judgment was rendered in which to appeal by writ of error to the Court of Appeals. Instead, First National chose to wait six months and file this bill of review. Because First National failed to exhaust the available legal remedies to set aside the default judgment, it is not entitled to a bill of review to achieve the same result.” Nat'l Bank of Tex. v. First Nat'l Bank of Round Rock, 682 S.W.2d 366, 369 (Tex. App.—Tyler 1984, no writ).

Justice Keltner's view appeared in what was long considered a leading treatise, perhaps the leading treatise, on Texas procedure:

The complainant must allege and prove that he exercised due diligence to avail himself of all adequate legal remedies against the former judgment, and that at the time he files the bill of review there remains no such adequate legal remedy still available. A bill of review is not a mere alternative of review on motion for new trial or upon appeal, and it may therefore be successfully urged only when there remains no other method of assailing the judgment. A person is charged with knowledge of all facts which he could have discovered by due diligence, and one who claims ignorance of an adverse judgment for a period of time after its rendition must justify his lack of knowledge. From the date he learns of the decree, or by the exercise of due diligence would have learned of it, the complainant must seize upon all legal remedies still available, including motion for new trial, appeal, or writ of error․

4 R. McDonald, Texas Civil Practice in District and County Courts 329, § 18.27.6 (1971 ed.) (quoted in Johnson v. Johnson, 476 S.W.2d 954, 955 (Tex. Civ. App.—Houston [1st Dist.] 1972, no writ)).

This same view was echoed by the Eleventh Court in 1963, which recalled its 1935 writ refused opinion in Reynolds:

For six months after June 23, 1961, appellant had the legal remedy of appeal by writ of error. If the judgment on its face, or as shown by the judgment roll, was void, as appellant contends, his available legal remedy of appeal by writ of error was adequate and effective. In Reynolds v. Volunteer State Life Insurance Company, the insurance company obtained a default judgment against Reynolds. Reynolds learned thereof within six months but did not seek a writ of error. We held that to entitle a litigant to a bill of review he must allege and prove that he has exhausted all adequate legal remedies available to him. The legal remedy of a writ of error was available to appellant. Therefore, he could not allege or prove that essential of a bill of review. We are forced to the conclusion that appellant did not allege facts essential to a bill of review and that the court did not err in refusing the bill of review without hearing evidence thereon.

Moore v. Mathis, 369 S.W.2d 450, 454 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.) (internal citation omitted). The Eleventh Court then affirmed the ruling by district judge Clarence Guittard, whose career and mastery of Texas procedure need no elaboration.

This was also the view of Justice Norvell and the Fourth Court: “[T]hey were clearly barred from obtaining equitable relief as they had a clear and adequate remedy at law by way of writ of error.” Drake v. First Nat'l Bank, Mercedes, 254 S.W.2d 230, 232 (Tex. Civ. App.—San Antonio 1952, no writ).

One could go on, but these authorities prove the point. As the twentieth century ended, this view—that the exhaustion requirement for a bill of review extends to the 6-month appeal known as writ of error—reigned without a rival. What began in Weaver and Reynolds became a Lone Star stampede down through the years, from Judge Speer to Justice Norvell to Justice Keltner and into a leading treatise on Texas civil procedure.¹

Might a reader of the Gold briefing have wanted to know any of this? Surely the decisional process would have benefited.

V.

Then came the 1997 amendments to the appellate rules. Did the shift from the writ of error appeal to the restricted appeal materially change the proper analysis? No. The 6-month appeal is still the same basic legal remedy.

The 1997 amendments “renamed and simplified” the writ of error appeal as the restricted appeal. John Hill Cayce Jr., Anne Gardner & Felicia Harris Kyle, Civil Appeals in Texas: Practicing Under the New Rules of Appellate Procedure, 49 Baylor L. Rev. 867, 915–16 (1997). The substance, however, remained the same:

• “The nature of a restricted appeal should be the same as under the former writ-of-error practice.” Reagan Wm. Simpson, A Practitioner's Review of Civil Appeals Under the 1997 Texas Rules of Appellate Procedure, 29 St. Mary's L.J. 595, 641 (1998).

• “The caselaw interpreting appeals by writ of error applies to restricted appeals.” W. Wendell Hall, Standards of Review in Texas, 38 St. Mary's L.J. 47, 306 (2006).

• “Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals.” Tex. R. App. P. 30.

The governing statute still uses the old terminology. See Tex. Civ. Prac. & Rem. Code § 51.013 (“In a case in which a writ of error to the court of appeals is allowed, the writ of error may be taken at any time within six months after the date the final judgment is rendered.”).

As the supreme court put it, “The writ of error procedure is now the restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c), and 30.” Alexander v. Lynda's Boutique, 134 S.W.3d 845, 849 (Tex. 2004) (emphasis added). The court has cited a writ of error case as authority for how restricted appeals work, speaking of the two together as “such appeals.” Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. 2006) (per curiam).

To be sure, the writ of error appeal experienced tweaks throughout its history,² but nobody ever suggested that any of those tweaks changed its basic character or altered the rule of Weaver and Reynolds.

Writ of error appeal was always a legal remedy for appealing from a judgment. See Moore, 369 S.W.2d at 454 (“Moore's legal remedy was a writ of error.”); Johnson, 476 S.W.2d at 955 (referring to “legal remedy of writ of error”). The bill of review was never a legal remedy—and never a mode of appeal. See Clements v. Chajkowski, 146 Tex. 408, 208 S.W.2d 841, 843 (1948) (“An equitable proceeding in the nature of a bill of review which seeks to vacate previous orders and decrees of a probate court cannot be used as a substitute for an appeal ․”). As the supreme court said in Birge, “The bill of review is an equitable remedy and cannot be used to take the place of a motion for new trial, appeal, or writ of error.” Birge, 105 S.W.2d at 408.

In light of all these authorities, we can see that today's restricted appeal retains the basic character of the writ of error appeal. It is a rose with another name. So all the policy underpinnings for Weaver and Reynolds, such as finality of judgments, remain equally valid after 1997.

VI.

But with these authorities receiving no mention in the merits briefing in Gold, it is little wonder that some of the analysis in the Gold per curiam opinion deviates from the analysis in Weaver and its progeny.

In Gold, the party seeking relief filed a bill of review two days before the judgment hit the six-month mark. 145 S.W.3d at 213. The lower courts rejected her bill of review on the ground that she should have exhausted legal remedies by filing a restricted appeal. Id. The supreme court disagreed for two reasons. Id. The first reason adheres to precedent. The second reason deserves examination.

1. Reason #1: The Gold opinion reaffirmed the traditional view that an unavailable remedy need not be exhausted.

First, the supreme court stated that the bill of review claimant could not have pursued a restricted appeal, given the state of the record: She “could have met the first three requirements” of a restricted appeal, the court explained, “[b]ut not the fourth.” Id. With one essential element of a restricted appeal being missing, the remedy was unavailable, so a bill of review was permissible. Id. This holding plowed no new ground, because an unavailable appellate remedy by writ of error need not be exhausted. See Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965) (bill of review held proper precisely because writ of error appeal was unavailable); McClelland v. Moore, 48 Tex. 355, 361 (1877) (same).

2. Reason #2: Without addressing Weaver or Reynolds, the Gold opinion called the bill of review “one appellate avenue” that a party may choose as a substitute for the legal remedy of a direct appeal.

But new ground was plowed by the second rationale. It begins: “[W]e have never held that failing to file a restricted appeal bars a bill of review.” Gold, 145 S.W.3d at 213. That suggestion appears untenable, unless one sets aside a century of law about writs of error—i.e., erases all events before 1997.

Take Weaver. The only thing that Mr. W.M. Weaver wanted was a bill of review, yet he lost because of his unexplained failure to pursue a writ of error. Weaver, 19 S.W. at 889.

Take Reynolds. Just as with Mr. Weaver, the only thing that Mr. J.G. Reynolds wanted was a bill of review, but he ran into the exact same problem. Mr. Reynolds had enough “time in which to prosecute an appeal by writ of error to the appellate court, and thereby set aside the judgment, which he now attempts to attack in this proceeding in equity.” Reynolds, 80 S.W.2d at 1090. But he failed to pursue a writ of error, and this unexplained failure cost him the bill of review:

Obviously, the remedy by writ of error was available at the time appellant's property was sold March 3, 1931, at the time he was dispossessed under the writ of possession March 24, 1931, and long subsequent thereto; that is, at any time within six months from the rendition of the judgment, January 12, 1931. The appellant shows no ground, or legal excuse, for not pursuing this remedy, since it was available to him long after he was dispossessed ․

Id. at 1093 (emphasis added) (citation omitted).

Next, the Gold opinion reasoned that a litigant should not be faulted for “choosing to appeal by bill of review rather than a restricted appeal.” 145 S.W.3d at 214. On this view about “choosing” to “appeal,” there is nothing amiss when a party simply “chooses one appellate avenue rather than another.” Id.

According to the Gold opinion, “We have never included a restricted appeal among the ‘adequate legal remedies’ a bill of review claimant must pursue; we have only applied this rule to motions that could have been filed in the trial court's first proceeding.” Id. (Mr. Weaver and Mr. Reynolds would disagree.) As I have discussed at length, probably undue length, the supreme court always included this mode of appeal as such a remedy. There is no reason to dwell further on Weaver, Reynolds, and their roots in earlier cases. What may warrant mention, however, is the part of Gold that speaks of “choosing to appeal by bill of review rather than a restricted appeal[.]” Id.

The notion of a party “choosing” to “appeal” by bill of review rather than by restricted appeal creates awkward tension with longstanding supreme court doctrine. The court held in Birge that “[t]he bill of review is an equitable remedy and cannot be used to take the place of a motion for new trial, appeal, or writ of error.” Birge, 105 S.W.2d at 408 (emphasis added). The court made a similar point a decade later when it again distinguished between a bill of review (equitable) and an appeal (legal), explaining that a party cannot substitute one for the other:

An equitable proceeding in the nature of a bill of review which seeks to vacate previous orders and decrees of a probate court cannot be used as a substitute for an appeal to the district court, and since respondent failed to avail himself of the adequate legal remedy at his disposal, relief under his action to vacate the orders upon equitable grounds was properly denied him.

Clements, 208 S.W.2d at 843; see also Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996) (“Appeal by writ of error is not an equitable proceeding such as bill of review, the object of which is to set aside an unfair judgment. Rather, writ of error is ‘but another mode of appeal.’ ”) (quoting Smith v. Smith, 544 S.W.2d 121, 122 (Tex. 1976)); Smith v. Gerlach, 2 Tex. 424, 426 (1847) (stating that “the writ of error in our practice is but another mode of appeal[.]”).

A bill of review is not an appeal; it is a new suit. “This right to bring direct proceedings to vacate and set aside a judgment is not intended to be used as a means of review of its own final judgment by a court, or to correct errors into which it may have fallen. That the judgment is erroneous, as a matter of law, is a ground for an appeal or a writ of error, but it is not ground for setting aside the judgment by a bill of review.” Petty v. Mitchell, 187 S.W.2d 138, 139 (Tex. Civ. App.—Beaumont 1944, writ ref'd).

Texas law has drawn this same distinction for about as long as we have had bills of review. See Brownson v. Reynolds, 77 Tex. 254, 13 S.W. 986, 987 (1890) (rejecting bill of review: “Equity will not interfere when the complainant had a legal remedy, and has failed to avail himself of it.”).³ The restricted appeal is a legal remedy, not an equitable action. See Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam) (“Mabon was diligent in pursuing all available legal remedies to challenge the default judgment. Once Mabon learned of the default judgment, it timely filed a restricted appeal ․”). This distinction—between the equitable bill of review (a new suit) and the legal remedy of appeal (not a new suit)—rests on sound policy concerns, rooted partly in the law/equity distinction but more fundamentally in the finality of judgments. No such concerns ever led a court to say that a restricted appeal will provoke extreme jealousy.

In appeals, we favor scrutiny of the merits so that the parties, as well as society, can know whether the judgment is correct. See McLean v. Livingston, 486 S.W.3d 561, 565 (Tex. 2016) (per curiam) (“Texas favors a policy allowing an appellant the opportunity to cure a procedural defect so that a case may be decided on its merits.”); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000) (Hecht, J., concurring) (“Appellate procedure should not be tricky.”).

But by the time of the bill of review stage, matters have materially shifted. It is as though a pawn has been promoted and become a new queen on the chessboard. “Bills of review are intrinsically incongruous with finality, and thus, are not lightly granted.” Valdez v. Hollenbeck, 465 S.W.3d 217, 230 (Tex. 2015); see Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 96 (1940) (“It is the policy of the law to give finality to judgments of the courts.”).

Which takes us back to Justice Wheeler's point in 1856: “[I]t is for the public good that there be an end of litigation.” Goss, 17 Tex. at 120. Those words were written before the Civil War, but the supreme court kept repeating them in bill of review cases decided throughout the twentieth century. See State v. Newman, 237 S.W.2d 417, 420 (Tex. Civ. App.—Austin 1951, writ ref'd); Brannen v. City of Houston, 153 S.W.2d 676, 678 (Tex. Civ. App.—Galveston 1941, writ ref'd); Reynolds, 80 S.W.2d at 1094; Ricketts v. Ferguson, 64 S.W.2d 416, 417 (Tex. Civ. App.—Dallas 1933, writ ref'd).

VII.

There is no denying the inconsistency between the second rationale in Gold and the supreme court's holdings in Weaver, Reynolds, and Birge (plus the doctrinal foundation underpinning the Weaver line of cases). The question becomes what to do about it. That question has several conceivable answers, none of them entirely free of difficulty.

First, one could reconcile the two lines of authority by announcing that the restricted appeal is fundamentally different from the writ of error, and that all the pre-1997 cases have become obsolete. But such a claim would be unconvincing, and nobody would believe it.

The restricted appeal and the writ of error differ only slightly. “The only notable change is that the party seeking to bring a restricted appeal must not have timely filed a post-judgment motion, a request for findings of fact or conclusions o[f] law, or a notice of appeal.” L.P.D. v. R.C., 959 S.W.2d 728, 729 n.1 (Tex. App.—Austin 1998, pet. denied). Civil Practice and Remedies Code Chapter 51 still speaks of the writ of error, see Tex. Civ. Prac. & Rem. Code § 51.013, and Rule 30 absorbs all such statutes into the law of restricted appeals. See Tex. R. App. P. 30 (“Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals.”).

Hence, the bar has rightly regarded the arrival of the restricted appeal as little more than a name change,⁴ which is why Reagan Simpson commented, “The nature of a restricted appeal should be the same as under the former writ-of-error practice.” Simpson, 29 St. Mary's L.J. at 641. Treating today's restricted appeal as materially different from its predecessor is not a satisfactory option.

Second, one might try the Shearson/American Express approach to resolving tension between modern doctrinal developments and an older but on-point decision. That is, “if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” In re Smith Barney, Inc., 975 S.W.2d 593, 598 (Tex. 1998) (orig. proceeding) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)).⁵ But the situation here does not present an instance of modern doctrine evolving away from an on-point decision that has fallen out of step with the times. Cf. State Oil Co. v. Khan, 522 U.S. 3, 10–22, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (abandoning old rule in antitrust law). The doctrine surrounding bill of review practice has stayed the same; so has the public interest in the finality of judgments and ending litigation. The Shearson/American Express approach may be tempting but does not fit.

Third, there is the orderliness lesson from Mitschke v. Borromeo, namely that stare decisis means following the first precedent. Per Mitschke, when conflicting cases come out of a single court, the orderly course is to follow the first one: “Affording stare decisis authority to the second case would be tantamount to eliminating stare decisis altogether.” Mitschke, 645 S.W.3d at 257. “For our legal system, the result would not be order and stability, but chaos and unpredictability.” Id. at 257–58. “The very concept of ‘settled principles’ would eventually be eroded.” Id. at 258. “If last-in-time decisions trumped earlier decisions, the public writ large would unfairly bear the consequences of departures from stare decisis.” Id. at 257 n.11.

However, the orderliness discussion in Mitschke involved precedent in the intermediate courts, not in the supreme court. Does orderliness matter more in intermediate courts? That would seem odd, since if stability means following the first-in-time decisions of the intermediate courts, the value in order and stability should surely be magnified when one considers precedents from the highest court. Mitschke itself does not answer the question, although its emphasis on predictability ought to carry great weight. The Mitschke approach seems attractive.

However, in the aftermath of Gold, some lower courts (including this one) have followed Gold and have quietly walked away from the Weaver line of cases. See Meat Supply, LLC v. 510 S. Good Latimer, LLC, No. 04-21-00095-CV, 2022 WL 689071, at *4 (Tex. App.—San Antonio Mar. 9, 2022, pet. denied) (mem. op.); Xiaodong Li v. DDX Grp. Inv., LLC, 404 S.W.3d 58, 62 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Pope v. Pope, No. 12-09-00188-CV, 2011 WL 1259532, at *3 (Tex. App.—Tyler Mar. 31, 2011, no pet.) (mem. op.).

Given events since Gold, I am reluctantly inclined to do what that per curiam did, in the hope that doing so constitutes the least bad of many miserable choices. Gold’s alteration of the exhaustion requirement strikes me as thoroughly unsound, as my instincts put me in the camp with Weaver, Reynolds, and Birge, and in the company of jurists such as Keltner, Norvell, Guittard, and Speer. But when faced with inconsistent decisions from our highest court, I cannot bring myself to deviate from the most recent decision, no matter what my view of whether the briefing there let the court down by failing to disclose controlling precedents.

For these reasons, I agree that the bill of review here should not have been rejected at summary judgment, at least not for the reasons given in Casey Lending's motion. (Tai Phan's papers advance other reasons for defeating the bill of review, such as certain special requirements of the Tax Code, but those reasons were not advanced in Casey Lending's motion and are not before us for review.)

No matter what happens on remand, perhaps this review of how the caselaw came to its present condition may increase the odds that affected lawyers will, on some future date, dig deeply into the exhaustion requirement in Texas bill of review law and supply the supreme court with all the details that it deserves as it plots the wisest future course for all of us. Texas has a skilled bar, whose members strive to give their “best efforts,” see Mitschke, 645 S.W.3d at 257 n.11, so if this discussion helps future efforts to be just a bit better, it will have achieved its goal.

FOOTNOTES

1.   The claimants were Harris County, the City of Houston, Houston Community College System, and Alief Independent School District.

2.   The trial court conducted a trial on the merits in September 2014.

3.   The foreclosure sale deed attached to Allied's answer reflects that on October 27, 2014, Thomas executed a note secured by a deed of trust to Casey Lending, and after Thomas defaulted on his payment obligations, Casey Lending foreclosed on the Property. Allied purchased the Property at a foreclosure sale in September 2016 for $2,257.77. The Tax Masters report in the 2016 Tax Suit reflects that Smith received a copy of the notice of the foreclosure sale, and Allied owned the Property as of July 25, 2017.

4.   The proceeds from the sale were disbursed to Casey Lending, the tax master, the district clerk, and to others for costs and fees associated with the sale.

5.   Phan was not a party to the 2016 Tax Suit.

6.   On October 2, 2019, the trial court granted Smith's application for temporary injunction prohibiting Phan and Casey Lending from among other things, interfering with Smith's ownership, use, control, or disposition of the Property and “requesting the issuance of a writ of possession with regard to the [h]ome or petitioning any other for possession of the [h]ome.”

7.   The transcript of the hearing is not in the appellate record.

8.   The original trial setting is not in the clerk's record. The September 2021 trial setting is an “Order Resetting Trial.”

9.   Although not expressly stated, the judgment in this case disposing of the merits of the underlying case effectively set aside the 2017 Judgment and substituted a new judgment in its place in favor of Casey Lending. Cf. Burki v. Dansby, No. 01-22-00044-CV, 2023 WL 3235821, at *4 (Tex. App.—Houston [1st Dist.] May 4, 2023, pet. denied) (mem. op.) (“In a bill-of-review proceeding, the merits of the underlying case are reached only if the petition for bill of review is granted.”); see also Alaimo v. U.S. Bank Tr. Nat'l Ass'n, 551 S.W.3d 212, 214–16 (Tex. App.—Fort Worth 2017, no pet.) (stating “final judgment in a bill of review should either: (1) deny any relief to the bill-of-review petitioner, or (2) ‘grant the bill of review and set aside the former judgment, insofar as it is attacked, and substitute a new judgment which properly adjudicates the entire controversy.’ ”) (quoting In re J.B.A., 127 S.W.3d 850, 851 (Tex. App.—Fort Worth 2004, no pet.)).

10.   It is not necessary, despite this two-step inquiry, for the trial court to conduct a separate hearing to determine whether the petitioner presented prima facie proof of her bill of review. See Boateng v. Trailblazer Health Enters., L.L.C., 171 S.W.3d 481, 488 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Ortmann v. Ortmann, 999 S.W.2d 85, 88 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

11.   Smith argues that the trial court was not considering the merits of her bill of review at the hearing on Casey Lending's motion for summary judgment and thus the trial court did not hear the bill of review and summary judgment together. She argues she did not consent to them being heard together.

12.   The transcript of the hearing is not in the appellate record.

13.   Smith does not explicitly argue that the trial court erred in ruling on her bill of review. Rather, her argument is that the trial court erred in granting Casey Lending's motion for summary judgment.

14.   Casey Lending argues that the deed's ambiguous description of the subject property “renders [Smith's deed] meaningless and ineffective.” On the contrary, an ambiguous deed presents a question of fact for the factfinder and rendering summary judgment is inappropriate. See Gore Oil Co. v. Roosth, 158 S.W.3d 596, 599 (Tex. App.—Eastland 2005, no pet.) (stating if written instrument remains reasonably susceptible to more than one meaning after established rules of interpretation have been applied, then instrument is ambiguous, and extrinsic evidence is admissible to determine its true meaning).

15.   According to Casey Lending, the correct address is 12230 Fairpoint Drive, Houston, Harris County, Texas 77099 and the property is accurately described as “Lot One (1) in Block Three (3) of Huntington Village, Section One (1), an addition in Harris County, Texas, according to the map or plat thereof recorded in Volume 180, Page 11 of the Map Records of Harris County, Texas.”

16.   Casey Lending does not dispute that Smith's deed meets the other requirements for an effective deed. See ConocoPhillips Co. v. Hahn, 704 S.W.3d 515, 531–32 (Tex. 2024).

17.   The taxing authority intervened in the case to “foreclose upon the tax lien attributable to non-payment of the 2015 through 2018 ad valorem taxes.” Runels v. Tax Loans USA, Ltd., No. 07-22-00130-CV, 2023 WL 5488438, at *1 (Tex. App.—Amarillo Aug. 24, 2023, pet. denied) (mem. op.). The taxing authority moved for summary judgment, and Runels I affirmed the trial court's granting of the motion. See id. at *4.

18.   Casey Lending also argues that Runels II, which discussed Mahan v. Lehman, No. 03-00-00382-CV, 2001 WL 252075, at * 4–5 (Tex. App.—Austin 2001, no writ) (mem. op., not designated for publication) is inapplicable because it did not address whether one of several undivided interest holders in real property could authorize the transfer of a tax lien. We agree that Mahan is distinguishable, but we also note that Runels II's holding is based on Trimble, not Mahan. See Runels II, 2024 WL 4994307, at *2 (discussing Mahan and stating that while “the actual holding in Mahan is inapposite to our case,” the “authority and dicta mentioned by the Mahan court are of interest,” and the “authority of interest is the very ‘Trimble decision’ to which Mahan alluded”).

19.   In her motion to reconsider the summary judgement rendered in Casey Lending's favor, Smith argued for the first time that Thomas did not comply with Chapter 65 of the Texas Property Code, and he was thus prohibited from “pledging and effectively adding encumbrances (18% + interest, etc.,) onto Smith's interest in the Home.” See Tex. Prop. Code 65.002. In its response to Smith's motion to reconsider, Casey Lending argued that it was entitled to summary judgment because Smith failed to deposit into the court's registry an amount equal to the delinquent taxes, penalties, and interest specified in the foreclosure judgment, as required by Section 34.08(a) of the Tax Code, and she was thus barred from commencing her bill of review challenging the validity of the tax sale to Phan. Tex. Tax Code § 34.08. And, because Smith did not comply with Section 34.08(a) before the limitations period expired, her claim to set aside the foreclosure is time barred. We express no opinion as to the merits of Smith's and Casey Lending's arguments on these issues.

20.   To the extent Smith raises a new appellate argument in her reply brief, we decline to consider it on appeal. See Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“The Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue not raised in the appellant's original brief.”); McAlester Fuel Co. v. Smith Int'l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“An issue raised for the first time in a reply brief is ordinarily waived and need not be considered by this Court.”); Howell v. Tex. Workers’ Comp. Comm'n, 143 S.W.3d 416, 439 (Tex. App.—Austin 2004, pet. denied) (“The rules of appellate procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee's brief but not raised by appellant's original brief.”). We express no opinion as to the merits of these arguments.

21.   Phan was not a party to the 2016 Tax Suit.

22.   We note that allowing a bill of review to remain in the same cause number as the original proceeding creates unnecessary confusion and is best remedied by severing the bill of review into a separate cause number so that the merits of the case may be properly litigated in that new cause number. See Alaimo v. U.S. Bank Tr. Nat'l Ass'n, 551 S.W.3d 212, 216 (Tex. App.—Fort Worth 2017, no pet.) (recognizing that, when a bill of review is granted, parties proceed to final judgment on the merits of the underlying claims in a bill of review proceeding, not in the underlying case in which the judgment was vacated); White v. Walsh, No. 04-18-00609-CV, 2019 WL 3432091, at *3 (Tex. App.—San Antonio July 31, 2019, no pet.) (mem. op.) (“Once a bill of review is granted all subsequent filings should be made in the bill of review proceeding and not the prior case.”); see also Postell v. Tex. Dep't of Pub. Welfare, 549 S.W.2d 425, 426–27 (Tex. App.—Fort Worth 1977, writ ref'd n.r.e.) (stating that when bill of review is filed in the same cause number as the original proceeding, “the trial court should transfer it to an independent position on the docket”); Amanda v. Montgomery, 877 S.W.2d 482, 485 (Tex. App.—Houston [1st Dist.] 1994, no writ) (holding trial court abused its discretion in refusing to sever bill of review into separate cause number).

1.   See, e.g., Rundle v. Comm'n for Lawyer Discipline, 1 S.W.3d 209, 218 (Tex. App.—Amarillo 1999, no pet.) (“Rundle was required to pursue a writ of error and exhaust that remedy before he could pursue a bill of review.”); Hesser v. Hesser, 842 S.W.2d 759, 766 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (“Ms. Hesser should have filed a writ of error.”); Davis v. Davis, No. A14-88-00364-CV, 1989 WL 28389, at *4 (Tex. App.—Houston [14th Dist.] Mar. 30, 1989, no writ) (not designated for publication) (“[B]ill of review was not available to appellant because he failed to exhaust his legal remedy of writ of error before bringing his bill of review action.”).

2.   See, e.g., Wichita Valley Ry. Co. v. Carter, 225 S.W. 592, 592 (Tex. Civ. App.—Fort Worth 1920, no writ) (on 1919 statutory shortening of appellate deadline from one year to six months); compare Tex. Rev. Civ. Stat. art. 2255 (1925) (six-month deadline) with Tex. Rev. Civ. Stat. art. 2086 (1911) (twelve-month deadline); see also Ben H. Rice III, Recent Case, Lawyer's Lloyds of Tex. v. Webb, 20 Tex. L. Rev. 111, 111–12 (1941) (on tweaks of 1939).

3.   These pronouncements all fit nicely with the supreme court's action in 1932 in drawing this sharp distinction between a bill of review and an appeal: “A suit in equity to set aside the judgment goes to the very foundation of the judgment, and does not involve a revision of the judgment for errors committed. The functions of such a suit are entirely distinct from the functions of an appeal from the judgment assailed.” Winters Mut. Aid Ass'n Circle No. 2 v. Reddin, 49 S.W.2d 1095, 1096–97 (Tex. Comm'n App. 1932, holdings approved). Although the supreme court did not adopt the Commission's opinion, it came very close to doing so when it wrote: “We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.” Id. at 1100.

4.   See, e.g., Wallace B. Jefferson, New Appellate Rules Update, in State Bar of Texas, Advanced Personal Injury Law Course at 21 (1998) (“The Names Have Changed”); Pamela E. George, Rule Changes that Every Lawyer Needs to Know About Other than Discovery, in State Bar of Texas, 22nd Annual Marriage Dissolution Institute at F-2 (1999) (“What we formerly knew as appeal by writ of error is now referred to as a restricted appeal.”).

5.   Justice Hecht made this observation in a case where the issue was the validity of a writ-refused decision, namely H. Rouw Co. v. Railway Express Agency, 154 S.W.2d 143 (Tex. Civ. App.—El Paso 1941, writ ref'd).

Veronica Rivas-Molloy, Justice

Gunn, J., concurring.