EVAN LANE VAN SHAW v. BRENT LEMON (2010)

MEMORANDUM OPINION

Opinion By Justice Richter

Evan Lane (Van) Shaw appeals in this bill of review proceeding.   In the underlying suit, Shaw sued D. Brent Lemon after Shaw and Lemon ended their law practice.   Shaw and Lemon reached a settlement, and after an arbitration, a final judgment was entered.   Lemon later filed this bill of review, claiming the judgment should be set aside because it is void.   The trial court rendered a judgment granting Lemon's bill of review and vacating the judgment entered in the underlying lawsuit.   Shaw appealed and later filed an unopposed motion to determine our jurisdiction.   After reviewing the record, we conclude the judgment is not final and we dismiss for want of jurisdiction.

Appellate jurisdiction is never presumed.  Brashear v. Victoria Gardens of McKinney, L.L.C., No. 05-07-01269-CV, 2009 WL 4827862, *2 (Tex.App.-Dallas Dec. 19, 2009, n.p.h.).   Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss.  Id. The jurisdiction of this Court is established exclusively by constitutional and statutory enactments.   See, e.g., Tex. Const. art.   V, § 6;  Tex. Gov't Code Ann. § 22.220 (Vernon Supp.2009).   Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001);  N.E. Indep.   Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966);  see Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp.2008).

The final judgment in a bill of review action should either deny any relief to the petitioner or 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 case.  West Columbia Nat'l Bank v. Griffith, 902 S.W.2d 201, 204 (Tex.App.-Houston [1st Dist.] 1995, writ denied);  Shabaz v. Feizy Import & Export Co., 827 S.W.2d 63, 64 (Tex.App.-Houston [1st Dist.] 1992, no writ).   When a trial court's judgment granting the bill of review sets aside a prior judgment but does not dispose of the merits of the underlying claim, it is interlocutory in nature and is not a final judgment appealable to the court of appeals.   See Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex.2006);  Jordon v. Jordan, 907 S.W.2d 471, 472 (Tex.1995);  Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex.1990).

Here, the trial court's judgment denies Shaw's request to reconsider the trial court's sanction order striking Shaw's pleadings, denies Shaw's traditional and no-evidence motion for summary judgment, and vacates the January 20, 2005 judgment rendered in the underlying case.   The trial court's judgment does not dispose of the merits of the underlying claim and is not authorized as an interlocutory appeal.   Thus, it is not appealable.

We dismiss for want of jurisdiction.

091081F.P05

MARTIN RICHTER JUSTICE