Opinion filed July 30, 2015




                                             In The


           Eleventh Court of Appeals
                                         __________

                                   No. 11-13-00183-CV
                                       __________

                        PAMELA HOLBROOK, Appellant

                                                V.

                         EVERETTE BOOKER, Appellee


                        On Appeal from the 70th District Court
                                     Ector County, Texas
                             Trial Court Cause No. A-126,846


                         MEMORANDUM OPINION
       The trial court entered a divorce decree in a divorce action that Everette
Booker had filed against Pamela Holbrook.1 Although Everette filed the divorce,
he was not present for the final hearing; Pamela was. Sometime after the trial

       1
        By a nunc pro tunc order entered after the trial court granted the divorce, Pamela obtained a
name change from Booker to Holbrook.
court entered the decree, Everette filed a petition for bill of review in relation to
certain monies that the parties had received in connection with third-party claims
related to an on-the-job injury that Everette suffered. Because Pamela abused the
discovery process in the bill of review proceeding, the trial court struck her
pleadings, and it heard and granted Everette’s petition for bill of review.
      When it granted the bill of review, the trial court rendered a judgment that
provided, in part: “On the Bill of Review, the Court finds in favor of [Everette] and
against [Pamela] in the amount of $839,633.43.” The trial court also ordered that
Everette was “entitled” to pre-judgment interest of $185,419.05 and post-judgment
interest. It also held that Everette was “entitled” to attorney’s fees that it had
already assessed in connection with the discovery sanctions. The trial court had
already found that Pamela, on at least two occasions, had abused the discovery
process, and it had assessed attorney’s fees against her in the amounts of $1,000
and $2,500; the trial court included those amounts in its order and judgment on the
bill of review. Additionally, the trial court provided that “[t]his judgment finally
disposes of all parties and all claims and is appealable.”
      Pamela raises three issues on appeal. In those three issues, she asks us to
determine whether the trial court properly granted Everette’s bill of review,
whether the trial court properly struck Pamela’s pleadings for discovery abuse, and
whether the trial court awarded excessive damages against her. Holbrook has not
complained about the procedure utilized by the trial court in the entry of the final
judgment in this case.
      Before we may reach Pamela’s issues, we must address a preliminary issue:
appellate jurisdiction. Although neither party has addressed jurisdictional issues,
we must address them on our own motion. M.O. Dental Lab v. Rape, 139 S.W.3d
671, 673 (Tex. 2004); N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678
(Tex. 1990).
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      Generally, one may assert an appeal only from a final judgment. Vaughn v.
Drennon, 324 S.W.3d 560, 562 (Tex. 2010) (judgment entered after a conventional
trial on the merits); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)
(unlike the case now before us, Lehmann involved a summary judgment). But,
under certain circumstances, a judgment may be final for purposes of appeal even
though it does not expressly dispose of all issues and claims. Our supreme court
has written, in reference to cases in which there has been a conventional trial on
the merits:
      “When a judgment, not intrinsically interlocutory in character, is
      rendered and entered in a case regularly set for a conventional trial on
      the merits, no order for a separate trial of issues having been entered
      pursuant to Rule 174…, it will be presumed for appeal purposes that
      the Court intended to, and did, dispose of all parties legally before it
      and of all issues made by the pleadings between such parties.”

N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897–98 (Tex. 1966).
(emphasis added).
      But a bill of review proceeding has its own unique characteristics. “A bill of
review is an equitable proceeding, brought by a party seeking to set aside a prior
judgment that is no longer subject to challenge by a motion for a new trial or direct
appeal.” Katy Venture, Ltd. v. Cremona Bistro Corp., No. 14-0629, 2015 WL
4497983, at *2 (Tex. July 24, 2015) (per curiam) (not yet released for publication)
(quoting Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (Tex. 2012) (per
curiam)). “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 controversy.” Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64
(Tex. App.—Houston [1st Dist.] 1992, no writ). If, then, a judgment in a bill of
review action grants the bill of review, but does not “set aside the former

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judgment, insofar as it is attacked, and substitute a new judgment which properly
adjudicates the entire controversy,” it would seem to us that the judgment is
interlocutory. If a trial court grants a bill of review, two things yet remain for the
trial court to do: (1) set aside the former judgment that it entered previously in the
main case, and (2) substitute a new judgment in which it adjudicates the entire
controversy insofar as it is attacked. Here, the trial court granted the bill of review,
but it did not expressly set aside the former judgment regarding the property issues
and neither did it enter a new judgment relative to those issues.
      The order of the trial court can be read to mean that the trial court actually
granted the bill of review: “This Court … is of the opinion that said Bill of Review
with respect to the division of the ‘Settlement Funds’ should be granted.”
However, we cannot say that the trial court set aside the former judgment on that
issue. Neither can we say that the trial court substituted a new judgment by which
it adjudicated the controversy insofar as the petitioner attacked it in the bill of
review. The trial court did not mention “Settlement Funds” in the divorce decree.
What it did do as far as any cash was concerned was to award each party any sums
of cash in his or her possession or subject to his or her sole control. By way of
contrast, as we have said, in the “Judgment and Order on Petition for Bill of
Review,” the trial court found: “On the Bill of Review, the Court finds in favor of
[Everette] and against [Pamela], in the amount of $839,633.43.” The court ordered
nothing further in that connection, and the order is more like an award of damages
than one in which an equitable division of marital property—the issue in a property
division award in a divorce case—is ordered. In fact, in its own language in the
order, the trial court awarded pre-judgment interest “on the damages awarded
herein.” (emphasis added).
      A judgment in a bill of review proceeding cannot merely supplement the
original judgment. Kessler v. Kessler, 693 S.W.2d 522, 526 (Tex. App.—Corpus
                                           4
Christi 1985, writ ref. n.r.e.). If it grants a bill of review, the trial court must set
aside that portion about which the complaint is made and then it must issue a
substitute judgment by which it adjudicates the entire controversy. Id. Of course,
only the challenged portion of the original judgment will be changed, but in this
way there will be only one final judgment by which all issues in the original case
are determined and the entire controversy decided. TEX. R. CIV. P. 301 (with
exceptions not applicable here, only one final judgment allowed); Kessler, 693
S.W.2d at 526.
        The court discusses that procedure in Kiefer. There, the trial court granted a
bill of review in connection with a parentage adjudication contained in a divorce
decree. Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006). The trial court there
entered a summary judgment in which it set aside the parentage adjudication, but it
did not enter a new adjudication as to parentage.                       Id.    The court of appeals
affirmed.2 Id. On appeal to the supreme court, the court held that the court of
appeals lacked jurisdiction to hear the appeal: “A bill of review which sets aside a
prior judgment but does not dispose of all the issues of the case on the merits is
interlocutory in nature and not a final judgment appealable to the court of appeals
or the supreme court.” Id. (quoting Tesoro Petroleum v. Smith, 796 S.W.2d 705,
705 (Tex. 1990)). The court so held even though the case involved summary
judgment.
        In Kiefer, the trial court had set aside the parentage adjudication, but it did
not enter a substitute parentage adjudication to replace it. Id. Likewise, in Tesoro,
the trial court granted the bill of review, set aside a summary judgment that it had


        2
          In the court of appeals, Chief Justice Tom Gray disagreed with the majority in that court in
Kiefer. Kiefer v. Touris, No. 10-03-00331-CV, 2005 WL 1531063, at *3–4 (Tex. App.—Waco June 29,
2005) (Gray, C.J. dissenting), rev’d, 197 S.W.3d 300 (Tex. 2006). He would have held, as did the
supreme court later, that the bill of review judgment was interlocutory and that the appellate court had no
jurisdiction. Id. Chief Justice Gray reasoned that the bill of review judgment did not dispose of all issues
in the case on the merits and was, therefore, interlocutory. Id.
                                                     5
entered and ordered a new trial, but it did not enter a substitute order that disposed
of all of the issues. 796 S.W.2d at 705. Here, we do not believe that the trial court
did either. Rather than set aside the property division portion of the decree, and
enter a new judgment, the trial court, by its own language, merely awarded
damages. It is instructive to us that the Kiefer court did not cite to Lehmann. We
also note that the court’s opinion in Kiefer with its relevance to Tesoro came after
its decision in Aldridge and in Lehmann. We are of the opinion, then, that the
judgment in this case is not merely erroneous, if it is—a question we obviously do
not decide—it is interlocutory.     In a bill of review proceeding, it is entirely
possible that a judgment is not erroneous, as far as it goes, but at the same time be
interlocutory because it does not go far enough.
      The “Judgment and Order on Petition for Bill of Review” is interlocutory,
and we have no jurisdiction to entertain an appeal from it.
      We dismiss the appeal.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


July 30, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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