Colette Savage v. Mark Savage ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00028-CV
COLETTE SAVAGE,
Appellant
v.
MARK SAVAGE,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 52,939
MEMORANDUM OPINION
On December 27, 2017, appellant, Colette Savage, filed what she has called a pro
se “Bill of Review” in this Court. In this filing, appellant included the trial-court style at
the top, though she later requests “THE HONORABLE JUDGES OF SAID COURT” to
review the judgment of the 66th Judicial District Court of Hill County, Texas. Given that
only one judge serves as the district-court judge, the fact that appellant requests “THE
HONORABLE JUDGES” to review the judgment suggests that this filing was intended
to be a “Bill of Review” filed in this Court, rather than merely a courtesy copy of a Bill of
Review filed in the trial court. This conclusion is further supported by language used by
appellant in her prayer. Specifically, appellant states the following:
Applicant prays that this Court grant her Bill of Review to dismiss Mark’s
claim or in the alternative return the instant litigation to trial court for full and
fair adjudication of the issues demonstrated herein as required by Texas
Rules and applicable authorities and that she be granted the full measure
of recovery to which she can show herself to be entitled in law and in equity.
(Emphasis added).
After review, we conclude that appellant has filed an original Bill of Review in this
Court. A bill of review is an independent lawsuit that seeks relief from the trial court,
not the appellate court. See Caldwell v. Barnes, 154 S.W.3d 93, 98 (Tex. 2004) (ordering a
separate jury trial for bill-of-review issues); see also Tate v. 8301 Maryland, LLC, No. 03-05-
00376-CV, 2006 Tex. App. LEXIS 7560, at *5 (Tex. App.—Austin Aug. 25, 2006, pet.
denied) (mem. op.). Because appellant has filed her bill of review in this Court, an
appellate court, we lack jurisdiction over appellant’s filing. See, e.g., Payne v. Payne, No.
04-08-00576-CV, 2009 Tex. App. LEXIS 897, at *6 (Tex. App.—San Antonio Feb. 11, 2009,
no pet.) (mem. op.) (concluding that an appellate court’s jurisdiction is limited to the
judgment granting or denying the petition for bill of review); El-Kareh v. Tex. Alcoholic
Beverage Comm’n, 874 S.W.2d 192, 194 (Tex. App.—Houston [14th Dist.] 1994, no writ)
(noting that jurisdiction of a court is never presumed and that if the record does not
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affirmatively demonstrate the appellate court’s jurisdiction, the appeal must be
dismissed).
We notified appellant by letter that this matter would be dismissed for want of
jurisdiction unless she filed a response showing grounds for continuing the appeal within
twenty-one days. Appellant responded and acknowledged that she filed her “Bill of
Review” in the wrong court. Therefore, because we lack jurisdiction over appellant’s pro
se “Bill of Review,” we dismiss this matter for want of jurisdiction. See TEX. R. APP. P.
42.3(a), 43.2(f); see also Caldwell, 154 S.W.3d at 98; El-Kareh, 874 S.W.2d at 194; see also
Payne, 2009 Tex. App. LEXIS 897, at *6; Tate, 2006 Tex. App. LEXIS 7560, at *5.
Absent a specific exemption, the Clerk of the Court must collect filing fees at the
time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to Tex. R. App.
P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007); see TEX. R. APP. P. 5;
10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b), 51,208, 51.941(a)
(West 2013). Under these circumstances, we suspend the rule and order the Clerk to write
off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off of the fees from the
accounts receivable of the Court in no way eliminates or reduces the fees owed.
AL SCOGGINS
Justice
Savage v. Savage Page 3
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Opinion delivered and filed March 7, 2018
[CV06]
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