Nelson A. Collazo v. Rachel D. Flores--Appeal from County Court at Law No 5 of Bexar County

MEMORANDUM OPINION
No. 04-02-00274-CV
Nelson A. COLLAZO,
Appellant
v.
Rachel D. FLORES,
Appellee
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 264376
Honorable Timothy F. Johnson, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: February 5, 2003

REVERSED AND REMANDED

Appellant Nelson A. Collazo ("Collazo") appeals the trial court's order denying his bill of review. Collazo contends that the trial court lacked subject matter jurisdiction because the bill of review was filed in a different court than the court that entered the final judgment being challenged. We conclude that the trial court did not have jurisdiction to decide the bill of review.

Background

Rachel D. Flores ("Flores") sued Collazo in County Court at Law No. 7 for various claims resulting from a landlord-tenant dispute. Collazo answered the initial citation but shortly afterward left the state and did not comply with a subsequent discovery order. The trial court struck Collazo's answer as a discovery sanction and entered a default judgment for Flores. Collazo did not respond to the notice of judgment until a judgment sale of his property by the county sheriff became imminent eight months later. Because all time periods for other remedies had passed, Collazo filed a bill of review in County Court at Law No. 5. The bill of review was denied by the same judge who had rendered the default judgment in the underlying case heard in County Court at Law No. 7.

Discussion

A bill of review is a direct attack on a judgment that is available as an equitable remedy when other remedies are unavailable to a plaintiff through no fault of his own. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). Because a bill of review is a direct attack, it can be brought only before the same court that rendered the judgment being attacked. Martin v. Stein, 649 S.W.2d 342, 346 (Tex. App.--Fort Worth 1983, writ ref'd n.r.e.).

The requirement that a bill of review be filed in the court that rendered the original judgment is jurisdictional. Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.--Houston [1st Dist.] 1995, no writ). Subject matter jurisdiction cannot be waived or conferred on a court by any agreement of the parties and it may be raised for the first time on appeal. Id. at 901. We review subject matter jurisdiction on appeal under a de novo standard. Richards v. Commission for Lawyer Discipline, 81 S.W.3d 506, 509 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

In this case, the record reflects that Collazo did not file his bill of review in County Court at Law No. 7 as required to confer jurisdiction. Flores contends that the jurisdictional defect was corrected or overcome when the judge who entered the final judgment presided over the bill of review proceeding. The modern trend toward multiple courts exercising concurrent jurisdiction does not make the jurisdictional requirement obsolete. Pursley v. Ussery, 937 S.W.2d 566, 568 (Tex. App.--San Antonio 1996, no writ).

Because County Court at Law No. 5 was without jurisdiction to decide a bill of review attacking a judgment rendered by County Court at Law No. 7, the trial court's judgment is reversed, and the bill of review is dismissed for want of jurisdiction.

Alma L. L pez, Chief Justice

PUBLISH