                         In The
                   Court of Appeals
     Sixth Appellate District of Texas at Texarkana


                        No. 06-14-00010-CV



 SOFIA MARIA PONCE, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF SALVADOR AGUINAGA, SR., DECEASED, Appellant

                                  V.

  HENK POST, INDIVIDUALLY, AND HERO FARMS, INC., Appellees



               On Appeal from the 276th District Court
                      Morris County, Texas
                     Trial Court No. 23,797-B




             Before Morriss, C.J., Carter and Moseley, JJ.
               Memorandum Opinion by Justice Carter
                                         MEMORANDUM OPINION
            Appellant, Sofia Maria Ponce, individually and as representative of the estate of Salvador

Aguinaga, Sr., deceased, has filed a motion raising a jurisdictional question about her pending

appeal. The underlying case involves a claim of wrongful death brought on behalf of Aguinaga.

Judgment was taken against an individual, Henk Post, and the now-defunct corporation, Hero

Farms, Inc. 1 Post received service, answered, and informed the trial court that he would be out

of the country for a set time.

            Notwithstanding Post’s filings, the trial court, after a hearing, entered judgment on

November 8, 2010, awarding Ponce $1,500,000.00 in damages and pronouncing Post and Hero

Farms jointly and severally liable for those damages. Ponce had filed a motion for partial

summary judgment seeking a ruling solely on the issue of Post’s liability to Ponce. The trial

court granted that motion as part of its November 8 judgment. Judgment was entered against

Hero Farms on the premise that it defaulted.

            Post filed a petition for bill of review September 22, 2011, seeking to set aside the default

judgment and partial summary judgment.                         A bench trial was conducted.   At trial, Ponce

stipulated that Post had a meritorious defense, that the default judgment against Hero Farms,

Inc., was invalid because Post had answered on behalf of himself and the named corporation, and

that the damage award against Post, individually, was improper because the motion only

provided that the November 8, 2010, hearing was for a partial summary judgment on liability.




1
    That corporate entity has not existed for over a decade.

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       The trial court found that Post did not receive notice of the trial, that he did not receive

notice of the entry of judgment, that he was prevented from participating in the trial and pursuing

an appeal because the trial court clerk did not provide him with notice of the setting or entry of

the judgment, and that these failures were no fault of his own.

       Ponce now asks us to determine whether the judgment on the bill of review is final and

appealable. Post has responded, taking the position that the judgment is not appealable. The

parties’ concern is based on cases holding that 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. Kiefer v. Touris, 197

S.W.3d 300, 302 (Tex. 2006) (per curiam); Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705

(Tex. 1990) (per curiam).

       The judgment in this case is of precisely the same nature as the one addressed in Tesoro.

It grants the bill of review and orders a new trial to be held. The judgment, therefore, does not

dispose of all issues in the case, is interlocutory in nature, and is not a final, appealable

judgment. See Tesoro Petroleum, 796 S.W.2d at 705.

       Consequently, we dismiss the appeal for want of jurisdiction.



                                               Jack Carter
                                               Justice

Date Submitted:        April 3, 2014
Date Decided:          April 4, 2014




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