Judgment Set Aside and Appeal Dismissed; Opinion Filed August 20, 2018.




                                                                 In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                       No. 05-18-00436-CV

                         CLEBURNE FOODS, LLC, Appellant
                                     V.
              OSAMA ZAWIDEH AND ZAWIDEH INVESTMENTS, INC., Appellees

                                On Appeal from the 380th Judicial District Court
                                             Collin County, Texas
                                    Trial Court Cause No. 380-03395-2008

                                          MEMORANDUM OPINION
                                   Before Justices Lang-Miers, Evans, and Schenck
                                               Opinion by Justice Evans
          Cleburne Foods, LLC appeals from the trial court’s March 16, 2015 judgment granting

“Defendants’ Motion for Dismissal for Lack of Jurisdiction” and denying all of its claims against

Osama Zawideh (Osama) in cause number 380-03395-2008.1 In two issues, Cleburne Foods

asserts (1) the trial court lacked subject matter jurisdiction when it rendered the September 10,

2010 order granting Osama’s motion for summary judgment and (2) the trial court erred in

rendering the appealed judgment on the ground that the September 10 order granting summary

judgment constituted a final judgment.




     1
      By order dated June 23, 2015, the Texas Supreme Court transferred this case to the Court of Appeals for the Eighth District of Texas, El
Paso. By order dated April 12, 2018, the Texas Supreme Court transferred this case back to this Court for resolution.
                                           BACKGROUND

       In cause number 380-03395-2008, Cleburne Foods sued Osama and Zawideh Investments

LLC (collectively Zawideh) for breach of contract, fraud, and deceptive trade practices based on

a real estate transaction. On May 8, 2009, the trial court signed a default judgment awarding

Cleburne Foods $794,200 in damages from Osama and Zawideh Investments. The default

judgment provided for pre- and post-judgment interest, court costs, and writs of execution. It

concluded with a Mother Hubbard clause stating, “All relief not expressly granted herein is

denied.” This judgment was not appealed.

       In their appellate briefs, the parties inform this Court that Zawideh filed a separate bill of

review proceeding that was assigned trial court cause number 380-04710-2009. According to the

parties, the trial court in the bill of review proceeding signed an order on January 12, 2010 granting

the bill of review as to Osama and denying it as to Zawideh Investments. This is the only

substantive order signed in the bill of review proceeding.

       After the interlocutory order was signed in the bill of review proceeding, cause number

380-04710-2009, the parties began filing pleadings in the original cause number 380-03395-2008.

On April 19, 2010, Cleburne Foods filed a second amended original petition again asserting claims

against both Osama and Zawideh Investments. Osama responded with a motion for summary

judgment. By order signed on September 1, 2010, the trial court granted Osama’s motion for

summary judgment. Activity in the original action continued for several more years.

       Trial commenced on March 9, 2015. Rather than conduct a trial, the trial court considered

Zawideh’s pretrial motion seeking dismissal. On March 16, 2015, the trial court signed a judgment

that both granted Zawideh’s motion for dismissal for lack of jurisdiction and ordered that any

claims for damages against Osama were denied in full. On March 17, 2015, Cleburne Foods filed

a motion to reconsider. This appeal followed.

                                                 –2–
                                             DISCUSSION

       A.      Appellate Jurisdiction

       Initially, we address Zawideh’s contention in its brief that Cleburne Foods’s notice of

appeal is untimely. Zawideh mistakenly asserts that Cleburne Foods’ March 17 motion to

reconsider extended the time to file a notice of appeal by only seventy-five days from the date of

judgment. When a party files a timely motion for new trial, the notice of appeal is due ninety days

after the date the judgment is signed. See TEX. R. APP. P. 26.1(a). Accordingly, Cleburne Foods’

motion to reconsider extended the deadline for filing a notice of appeal to Monday, June 15, 2015.

See TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 4.1(a); 26.1(a). Cleburne Foods timely filed a notice

of appeal on June 11, 2015.

       B.      Trial Court Jurisdiction

       Turning now to the merits of this appeal, Cleburne Foods asserts the trial court lacked

jurisdiction when it signed the September 1, 2010 order granting Osama’s motion for summary

judgment. If this assertion is correct, it follows that the trial court also lacked jurisdiction when it

signed the March 16, 2015 judgment that is the subject of this appeal.

       The law regarding bill of review proceedings controls the outcome of this appeal. A bill

of review is a proceeding to set aside a judgment that is no longer appealable or subject to a motion

for new trial. Tex. R. Civ. P. 329b(f); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex.

2010). Unlike a motion for new trial that is filed in the same original case and a restricted appeal

that is an appeal taken from the trial court’s judgment in the original case, a bill of review is an

independent equitable action filed as a separate proceeding from the underlying lawsuit. See State

v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex. 1989).

       A bill of review proceeding will involve either a one-step or two-step process. If the bill

of review is denied, the matter is determined in one step and the order denying the bill of review

                                                 –3–
becomes a final order from which an appeal may be taken. See Baker v. Goldsmith, 582 S.W.2d

404, 409 (Tex. 1979). If, however, the bill of review is granted, a second step is necessary. The

second step requires adjudication of “whether the bill of review defendant, the original plaintiff,

has proved the elements of his original cause of action.” Id. (emphasis added). “When the trial

court grants a bill of review and sets aside a judgment in a prior case, the subsequent trial on the

merits of the prior case occurs in the same proceeding as the trial on the bill of review.” Hartford

Underwriters Ins. v. Mills, 110 S.W.3d 588, 590 (Tex. App.—Fort Worth 2003, no pet.) (emphasis

added). This is so because the trial court’s plenary power of the original action has expired and,

therefore, the trial court lacks subject matter jurisdiction over that case.      A bill of review

proceeding that sets aside a prior judgment but does not dispose of all the issues of the case on the

merits is interlocutory and not a final judgment appealable to the court of appeals. See Tesoro

Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex. 1990) (per curiam); see also Am. Cas. Co. of

Reading Pennsylvania v. City Of Dallas, No. 05-04-01141-CV, 2004 WL 2241183, at *1 (Tex.

App.—Dallas Oct. 6, 2004, no pet.).

       A judgment rendered by a court without subject matter jurisdiction is void. See In re

United Servs. Auto. Ass’n, 307 S.W.3d 299, 309–10 (Tex. 2010) (orig. proceeding); State ex rel.

Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). When a party appeals from a void

order and the appellate court lacks jurisdiction to consider the appeal, the proper procedure is for

the appellate court to declare the order void and dismiss the appeal. See Freedom Commc’ns Inc.

v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012).

       Here, Cleburne Foods obtained a final default judgment against Osama and Zawideh

Investments in the original action on May 8, 2009. No motion for new trial or other motion

extending the trial court’s plenary power was filed. And, no restricted appeal was taken. The

plenary jurisdiction of the trial court in cause number 380-03395-2008 expired on June 7, 2009,

                                                –4–
thirty days after the default judgment was signed. See Tex. R. Civ. P. 329b(d) (providing that the

trial court has plenary power to vacate, modify, correct, or reform the judgment within thirty

days after the judgment is signed). As a separate lawsuit, however, the bill of review proceeding

did not restore a trial court’s plenary power over the original action. See Alaimo v. U.S. Bank Tr.

Nat’l Ass’n, No. 02-16-00123-CV, 2017 WL 3633297, at *4 (Tex. App.—Fort Worth Aug. 24,

2017, no pet.) (“[A] bill of review is a different procedural device—it is both filed and resolves

the underlying dispute in a separate lawsuit. It does not, therefore, restore a court’s plenary power

over a cause of action that has been resolved by final judgment.”).

       Had either a motion for new trial been granted or a restricted appeal resulted in a reversal

and remand, the trial court’s plenary power in the original action would have been restored, making

a bill of review proceeding unnecessary. The trial court’s plenary power over the original action

expired on June 7, 2009, thirty days after the default judgment was signed. Because the trial court

here had lost its plenary power in the original action (cause number 380-03395-2008) by the time

it attempted to adjudicate the merits of the original controversy, it acted without jurisdiction. See

Alaimo, 2017 WL 3633297, at *4; see also In re United Servs. Auto. Ass’n, 307 S.W.3d at 309–

10; Owens, 907 S.W.2d at 486.

                                               CONCLUSION

       We conclude the March 16, 2015 judgment is void because the trial court lacked subject

matter jurisdiction. For this reason, we have no jurisdiction to consider the merits of this appeal.




                                                –5–
 Accordingly, we set aside the trial court’s March 16, 2015 judgment and dismiss the appeal.2




                                                                          /David Evans/
                                                                          DAVID EVANS
                                                                          JUSTICE

180436F.P05




     2
       Because the order in the bill of review proceeding here fails to dispose of the merits of the underlying controversy between Cleburne Foods
and Osama, it is interlocutory and the bill of review proceeding remains pending.

                                                                      –6–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 CLEBURNE FOODS, LLC, Appellant                      On Appeal from the 380th Judicial District
                                                     Court, Collin County, Texas
 No. 05-18-00436-CV          V.                      Trial Court Cause No. 380-03395-2008.
                                                     Opinion delivered by Justice Evans.
 OSAMA ZAWIDEH AND ZAWIDEH                           Justices Lang-Miers and Schenck
 INVESTMENTS, INC., Appellees                        participating.

       In accordance with this Court’s opinion of this date, the trial court’s judgment dated March
16, 2015 is SET ASIDE and this appeal is DISMISSED.

       It is ORDERED that the parties bear their own costs of this appeal.


Judgment entered this 20th day of August, 2018.




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