                              NUMBER 13-11-00756-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG
____________________________________________________________

LINUS F. DIAS,                                                              Appellant,

                                           v.

RITIKA DIAS,                                         Appellee.
____________________________________________________________

               On Appeal from the 28th District Court
                    of Nueces County, Texas.
____________________________________________________________

                           MEMORANDUM OPINION
           Before Chief Justice Valdez and Justices Garza and Vela
                      Memorandum Opinion Per Curiam

       Appellant, Linus F. Dias, attempts to appeal an order signed on August 30, 2011,

granting a bill of review and setting aside a divorce decree, and an order signed on

October 11, 2011, containing findings of fact and conclusions of law. We dismiss this

appeal for want of jurisdiction.

       Appellant and appellee, Ritika Dias, were originally divorced by decree signed on
November 20, 2009. Appellee thereafter filed a bill of review. On August 30, 2011, the

trial court granted the bill of review and set aside the decree. On October 11, 2011, the

trial court entered findings of fact and conclusions of law.

       This appeal ensued. On December 12, 2011, the Clerk of this Court notified

appellant that it appeared that there was no final, appealable judgment before the Court.

The Clerk warned appellant that the appeal would be dismissed for want of jurisdiction if

the defect were not cured within ten days. See TEX. R. APP. P. 42.3.

       On December 22, 2011, appellant filed ―Appellant’s Response and Motion for Stay

of the Proceedings and Request the Court Abate Dismissing Appeal until the Trial Court

Has Conducted the Hearing on the Divorce Matter and Entered a Judgment and

Appellant’s Application for Relief under the Servicemember’s Civil Relief Act. . . .‖

Appellant requests that we retain this appeal on our docket, but abate the appeal pending

entry of a final judgment in the divorce proceeding and pending appellant’s discharge

from the United States Navy.

       An order granting a bill of review which sets aside a prior judgment, but which does

not dispose of all the issues of the case on the merits, is interlocutory in nature and is not

a final judgment appealable to the court of appeals or to the Texas Supreme Court.

Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006); Tesoro Petroleum v. Smith, 796

S.W.2d 705, 705 (Tex. 1990) (per curiam); see also Tex. Employers' Ins. Ass'n v. Arnold,

88 S.W.2d 473, 474 (Tex. 1935). In this case, the original divorce decree was entered

on November 20, 2009. Although the trial court set aside that decree, and subsequently

entered findings of fact and conclusions of law, it did not at the same time enter a new

decree of divorce. At present, there are substantial and material issues pertaining to the

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divorce left undecided. Thus, the order granting the bill of review and the order entering

findings of fact and conclusions of law were not final and appealable, and we lack

jurisdiction to reach the merits of the appeal. See Kiefer, 197 S.W.3d at 302.

       Appellant requests that this Court abate the appeal so that the trial court will

conduct a hearing and enter a final decree of divorce between the parties. According to

appellant, the trial court has refused to proceed with the hearing on the divorce because

of this pending appeal. Appellant asserts that it would be ―improper‖ and ―judicially

inefficient‖ for this Court to dismiss the appeal because of the trial court’s ―refusal‖ to

conduct a final hearing. Appellant thus requests that we abate this appeal so that he can

pursue the appeal at some future date, after a hearing is held, and the trial court enters a

new divorce decree. Appellant appears to contend that the instant appeal is premature

under Texas Rule of Appellate Procedure 27.1, and should therefore not be dismissed.

See generally TEX. R. APP. P. 27.1(a).

       Under Rule 27.1(a), a prematurely filed notice of appeal is effective and deemed

filed on the day of, but after, the event that begins the period for perfecting the appeal.

See id.    However, ―there is nothing in Rule 27.1 or the remainder of the Rules of

Appellate Procedure that indicate, and the clear implication is to the contrary, that a notice

of appeal can be filed in anticipation of an appeal that may be somewhere in the indefinite

future.‖   Ganesan v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet.

denied); see also McIntyre v. Lexis Nexis, No. 05-11-00809-CV, 2011 Tex. App. LEXIS

8402, at **2–3 (Tex. App.—Dallas Oct. 21, 2011, no pet.) (mem. op. per curiam)

(dismissing an appeal for want of jurisdiction where the record lacked a signed judgment

or order and ―nothing before us indicates an order is imminent‖); In re Corder, No.

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01-09-00386-CV, 2009 Tex. App. LEXIS 4190, at *5 (Tex. App.—Houston [1st Dist.] June

5, 2009, orig. proceeding) (mem. op.) (stating that ―there is nothing in the Rules of

Appellate Procedure providing that a jurisdiction invoking document can be filed in

anticipation of an appellate proceeding that may be sometime in the indefinite future‖).

In rejecting the concept that Rule 27.1 could allow a notice of appeal to be used as ―an

appellate place holder until there is a final appealable judgment,‖ the Waco court of

appeals concluded that myriad problems prevented such an approach:

       There are too many uncertainties for us to validate this procedure. How
       would we regulate, start, or monitor the appellate time table? How would
       we even know when or if a final appealable judgment were rendered?
       What would be the effect of the rendition of an appealable interlocutory
       order? What happens if an error free judgment is rendered or if no one
       wants to appeal the final judgment? Given the pressure of the legislatively
       imposed performance measures for the timely disposition of appeals, how
       long would we hold such an appeal on our docket before disposing of it?

Ganesan, 236 S.W.3d at 817. We likewise conclude that Texas Rule of Appellate

Procedure 27.1 does not require this Court to docket and hold an appeal open until there

is an appealable judgment or order at some future date. See id.; see also McIntyre, 2011

Tex. App. LEXIS 8402, at **2–3; In re Corder, 2009 Tex. App. LEXIS 4190, at *5.

       Finally, we note that appellant asserts that he is a ―Petty Officer Third Class on

active duty in the United States Navy stationed in the State of Hawaii and is entitled to a

temporary suspension of judicial and administrative proceeding[s] that may adversely

affect [his] civil rights during his military service.‖ Appellant thus asks for a stay of these

appellate proceedings.

       The Servicemembers Civil Relief Act provides "for the temporary suspension of

judicial and administrative proceedings and transactions that may adversely affect the


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civil rights of service-members during their military service." See 50 U.S.C.A. Apx. §

502(2) (West Supp. 2010). When, as in this case, a servicemember has received notice

of a civil proceeding, the court "may on its own motion and shall, upon application by the

servicemember, stay the action for a period of not less than 90 days . . . ." Id. § 522(b)(1)

(West Supp. 2010). The stay shall be imposed only where certain specified statutory

conditions have been met. See id. § 522(b)(2).

       Given our conclusion that we lack jurisdiction over this appeal, we similarly

conclude that we lack jurisdiction over appellant’s request for a stay under the

Servicemembers Civil Relief Act. Our determination in this regard is not a decision on

the merits of appellant’s request, and thus should not be construed so as to preclude

appellant from seeking relief from the trial court under the Servicemembers Civil Relief

Act.

       The Court, having considered the documents on file, is of the opinion that there is

no appealable judgment or order in this proceeding and the appeal should be dismissed

for want of jurisdiction. See TEX. R. APP. P. 42.3 (a); 44.3. Accordingly, the appeal is

dismissed.   All relief sought in ―Appellant’s Response and Motion for Stay of the

Proceedings and Request the Court Abate Dismissing Appeal Until the Trial Court Has

Conducted the Hearing on the Divorce Matter and Entered a Judgment and Appellant’s

Application for Relief Under the Servicemember’s Civil Relief Act. . . ‖ is likewise

dismissed for want of jurisdiction.

                                                  PER CURIAM

Delivered and filed the
19th day of January, 2012.


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