In re Moreno

• Court: Court of Appeals of Texas
• Citation: 4 S.W.3d 278
• Parties: <!--4 S.W.3d 278 (Tex.App.-Houston 1999) IN RE EMILIO MORENO AND DIANA GARAY, Relators. NO. 14-99-00149-CV. In The Fourteenth Court of Appeals
• Decision Date: 25 March 1999

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4 S.W.3d 278 (Tex.App.-Houston[14th Dist.] 1999) IN RE EMILIO MORENO AND DIANA GARAY, Relators. NO. 14-99-00149-CV. In The Fourteenth Court of Appeals. March 25, 1999.

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Panel consists of Justices Yates, Fowler and Frost.

O P I N I O N

Kem Thompson Frost, Justice

On February 23, 1999, relators, Emilio Moreno and Diana Garay, filed a petition for writ of mandamus in this Court. See TEX. GOV'T. CODE ANN. 22.221 (Vernon 1988 & Supp. 1999). Relators contend that the trial court abused its discretion in granting a bill of review filed by the real party in interest, ArChem Start-up Group. Because relators have an adequate remedy by appeal, we deny relators' petition for writ of mandamus.

Generally, mandamus relief is available if the trial court violates a duty imposed by law or clearly abuses its discretion, either in resolving factual issues or in determining legal issues, when there is no adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Two courts of appeals have held that an erroneously granted bill of review is effectively a void order granting a new trial and

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is an abuse of discretion that affords no adequate remedy at law. See In re National Unity Ins. Co, 963 S.W.2d 876, 877 (Tex. App.--San Antonio 1998, orig. proceeding) (citing Thursby v. Stovall, 647 S.W.2d 953, 954 (Tex. 1983)); see also Schnitzius v. Koons, 813 S.W.2d 213, 218 (Tex. App.-- Dallas 1991, orig. proceeding). Here, relators complain that ArChem Start-up Group did not satisfy the requirements for relief by bill of review, and therefore, the trial court erroneously granted the relief. Thus, under the holdings in National Unity and Schnitzius, relators argue that the court's order granting the bill of review is void and mandamus is appropriate.

ArChem Start-up Group, on the other hand, asserts that relators can appeal the granting of a bill of review. The cases on which ArChem Start-up Group relies involve circumstances in which the trial court granted the bill of review and then ruled on the merits of the underlying claim. See, e.g., Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240, 242 (Tex. 1974); Hanks v. Rosser, 378 S.W.2d 31, 33 (Tex. 1964); Lambert v. Coachmen Indus., 761 S.W.2d 82, 89 (Tex. App.--Houston [14th Dist.] 1988, writ denied); Woodard v. Hopperstad Builders, Inc., 554 S.W.2d 726, 727 (Tex. App.--Corpus Christi 1977, writ ref'd n.r.e.). In those circumstances, the granting of the bill of review can certainly be reviewed as part of a final, appealable judgment. Here, however, the trial court's order granting the bill of review is interlocutory because the court did not rule on the merits of the underlying claim. See Jordan v. Jordan, 907 S.W.2d 471 (Tex. 1995) (holding that a bill of review which sets aside a prior judgment but does not dispose of the case on the merits is interlocutory and not appealable). Consequently, relators withdrew their notice of appeal,¹ and under National Unity and Schnitzius, claim that mandamus is the only way to review the court's interlocutory order. At least one court of appeals, however, has held that an interlocutory order granting a bill of review may not be reviewed by mandamus, but by appeal of the eventual final judgment in the underlying case. See Texas Mexican Ry., Co. v. Hunter, 726 S.W.2d 616, 617-18 (Tex. App.--Corpus Christi 1987, orig. proceeding).

We conclude that Hunter is the correct statement of the law. In National Unity, the court relied on Thursby, which was a pre-Walker case. In...