John Bryan Langdon v. Leslie Mathison Gilbert

ACCEPTED
03-15-00305-CV
6047531
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/13/2015 5:55:16 PM
September 24, 2015 JEFFREY D. KYLE
CLERK
APPELLATE CASE NO. 03-15-00305-CV

JOHN BRYAN LANGDON
Appellant

LESLIE MATHISON GILBERT
Appellee RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
7/13/2015 5:55:16 PM
On Appeal from the JEFFREY D. KYLE
Clerk
County Court at Law Number Two of Travis County, Texas

APPELLEE BRIEF

__________________________________________________________________

Identity of Parties and Counsel

Leslie Mathison Gilbert John Bryan Langdon
Defendant at the Trial Court Level Plaintiff at the Trial Court Level

Evans Kosut Davidson, PLLC Law Office of Tom Murphy
Attn: John M. Davidson Attn: Tom Murphy
State Bar No. 05434980 State Bar No. 24013217
16000 Stuebner Airline Rd., Ste. 200 9600 Great Hills Trail, Ste. 150W
Spring, Texas 77379 Austin, Texas 78759
(281) 251-7900 (512) 477-5680
(281) 251-7909 Fax (512) 493-0691 Fax
Email: jdavidson@ekklaw.com Email: tom@tommurphyslaw.com
Trial Attorney and Trial Attorney and
Appellee Counsel for Gilbert Appellate Counsel for Langdon

Page 1
TABLE OF CONTENTS
PAGE

Identity of Parties and Counsel ……………………………………………….…… 1

Table of Contents …………………………………………………………………. 2

Index of Authorities …………………………………………………….……........ 3

Statement of Case ………………………………………………………………… 5

Issues Presented …………………………………………………………………... 6

Statement of Facts ………………………………………………………………… 7

Summary of Argument .…………………………………………………….……. 10

Argument ……………………………………………….……………….………. 11

I. As a matter of law, Appellant Langdon is not entitled to
attorney’s fees as a bill of review plaintiff. Further, Appellant
did not prevail on the lease agreement in the underlying
lawsuit..................................................................................... 11

II. The effect of the Agreed Order about which Appellant
indirectly complains was agreed to by Appellant, thus
Appellant has no basis for complaint. Appellee’s non-suit of
the underlying case was effective and the Court’s order
granting the non-suit was ministerial ……………………….16

III. The trial court properly rendered a Final
Judgment.………………………………………………...… 20

Conclusion and Prayer ……………………………………………………..……. 21

Certificate of Compliance ……………………………………………….…….... 22

Certificate of Service ……………………………………………….………..….. 23

Appendix ………………...…………………………………………….…..……. 24
Page 2
INDEX OF AUTHORITIES

PAGE

Akin, Gump, Strauss, Hauer & Feld, LLP v. National Dev. & Research Corp.,
299 S.W.3d 106, 120 (Tex. 2009) ……….…………………………………….... 11

Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. —Dallas 1992, no writ) …… 13

Baker v. Goldsmith, 582 S.W. 2d 404, 408 (Tex. 1979) ……………………. 16, 17

Caldwell v. Barnes 154 S.W. 2d 93, 97 (Tex. 2004)…………………………..... 17

Director State Employees Worker’s Compensation Division v. Evans, 889 S.W.2d
266, 270 (Tex. 1994) .……………………………………………………………. 15

In re Daredia, 317 S.W.3d 247, 248 (Tex. 2010) ……………………………..... 20

Intercontinental Group Partnership v. KB Home Lone Star, LP, 295 S.W.3d 650,
661 (Tex. 2009) ……………………………………………………………….... 16

Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. - Corpus Christi 1985,
writ ref'd n.r.e.) ………………………….……………………………..……….. 19

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) ……….…..……. 20

Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299
(Tex. App. —San Antonio 1999, pet. denied) ………………………………….. 14

MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663
(Tex. 2009) ………………………………………………………………………. 11

Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982) ………………….…… 12, 13

Mungia v VIA Metro Transit, 441 S.W. 3d 542 (Tex. App.—San Antonio 2014, no
pet.) ………………………………………………………………………….….. 12

Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03
(Tex. App.--Austin 1981, no writ) …………………………………….……….. 12

Page 3
Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64
(Tex. App.-Houston [1st Dist.] 1992, no writ) …………………………….…… 19

TEXAS RULES OF CIVIL PROCEDURE

TEX. R. CIV. P. 329b(f)………………...……………………………………….. 17

TEX. R. CIV. P. 329b(d) ………………...……………………………..……….. 20

Page 4
STATEMENT OF CASE

1) Nature of the case. This is an appeal of a summary judgment granted in a
bill of review lawsuit. The underlying lawsuit is related to the rental of real
property with a cause of action for failure to return rental security deposit
and unjust enrichment related to a leasehold.

2) Name of the trial judge. Honorable Todd T. Wong.

3) Trial court. County Court at Law Number Two of Travis County, Texas.

4) Disposition in the trial court. After the intermediate court of appeals’
opinion in the first bill of review proceeding, the parties entered into an
agreed order on Appellant’s motion for summary judgment. The agreed
order granted the bill of review in part, set aside the underlying judgment,
ordered a trial in the underlying lawsuit, and left pending in the bill of
review lawsuit only the issue of whether Appellant was entitled to attorney’s
fees for the prosecution of the bill of review lawsuit.

After the Court granted the agreed order on the bill of review, Appellee non-
suited the underlying lawsuit. The non-suit disposed of the underlying
lawsuit since Appellant had filed no pleading in the underlying lawsuit
before the non-suit was filed or granted.

Appellee subsequently filed in the bill of review lawsuit a motion for
summary judgment for an order determining whether or not Appellant could
be awarded attorney’s fees for prosecuting the bill of review lawsuit. The
Court granted Appellee’s motion for summary judgment, which was a final
judgment in the bill of review lawsuit.

5) Parties in the trial court. John Bryan Langdon was the Plaintiff in the bill
of review lawsuit; Leslie Mathison Gilbert was the Defendant in the bill of
review lawsuit.

Page 5
ISSUES PRESENTED

1. As a matter of law, Appellant Langdon is not entitled to attorney’s
fees as a bill of review plaintiff. Further, Appellant did not prevail on
the lease agreement in the underlying lawsuit.

2. The effect of the Agreed Order about which Appellant indirectly
complains was agreed to by Appellant, thus Appellant has no basis for
complaint. Appellee’s non-suit of the underlying case was effective
and the Court’s order granting the non-suit was ministerial.

3. The trial court properly rendered a Final Judgment.

Page 6
STATEMENT OF FACTS

In the underlying lawsuit, the Appellee (Leslie Gilbert) filed suit against the

Appellant (John Langdon) for damages related to the failure of Appellant to provide

an accounting and refund of a security deposit to Appellee in Cause No. C-1-CV-13-

009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” (the “underlying

lawsuit”). A default judgment was rendered in favor of Appellee against Appellant

on March 19, 2014. CR 16-17.

In the underlying lawsuit, Appellant was found liable for bad faith in failing to

provide an accounting and refund of Appellee’s security deposit of $4,000.00, as well

as retaining an overpayment of rents in the amount of $1,500.00. Attorney’s fees, a

civil penalty of $100.00, and trebling of damages of $12,000.00 was rendered against

Appellant. CR 16-17.

In filing the underlying lawsuit, Appellee tendered service of process to the

Texas Secretary of State, alleging that the Secretary of State was the agent for

Appellant because Appellant had not designated or maintained a resident agent for

service in Texas, that Appellant engaged in business in Texas, does not maintain a

regular place of business in Texas, and that the lawsuit arose from Appellant’s

business in Texas. As such, Appellee alleged that the Secretary of State was the

proper agent for service.

Upon serving the Secretary of State, Appellee was required to provide the

Page 7
Secretary of State a document that contains a statement of the name and address to

deliver notice of citation to Appellant.

Appellee provided the Secretary of State the following address: 275 2nd Ave.,

Long Branch, New Jersey 07740. This address was allegedly not the address of

Appellant. Appellant’s correct address was 275 2nd Ave. Front, Long Branch,

New Jersey 07740, according to Appellant.

On April 24, 2014, thirty-six (36) days after the default judgment, Appellant

filed a bill of review to set aside or vacate the default judgment alleging due

process violation for improper service by providing the Secretary of State the

wrong address to serve Appellant. CR 8.

On July 28, 2014, the trial court denied Appellant’s motion for summary

judgment for a bill of review and granted Appellee’s motion for summary

judgment to deny a bill of review. CR 142-143.

On August 6, 2014, Appellant filed an appeal of the trial court’s original

Order granting Appellee’s motion for summary judgment denying a bill of review.

CR 146.

On December 31, 2014, this Court issued a Memorandum Opinion that

reversed the trial court’s judgment and remanded for further consideration. CR

154-161. On January 30, 2015, Appellant filed another motion for summary

Judgment to have a bill of review granted. CR 185.

Page 8
On March 27, 2015, Appellee conceded that a bill of review should be

granted in part. CR 241. On April 2, 2015, the trial court entered an agreed order

granting summary judgment for a bill of review. CR 246-247. The agreed order

ordered the underlying lawsuit to a trial, denied Appellant’s request for attorney’s

fees in the bill of review lawsuit, and ordered a trial to determine the amount of

attorney’s fees, if any, that were to be awarded to Appellant in the bill of review

lawsuit. There was not a determination of the merits of the underlying lawsuit as

of the granting of the April 2, 2015 agreed order.

On April 2, 2015, Appellant filed a notice of non-suit without prejudice. See

Appellee Appendix 1. On April 7, 2015, the trial court signed an order granting

the non-suit without prejudice for the underlying lawsuit. See Appellant Appendix

On April 20, 2015, Appellee filed a motion for summary judgment seeking a

ruling that attorney’s fees are not awardable to Appellant in the bill of review

lawsuit. CR 249. On May 12, 2015, the trial court granted Appellee’s motion for

summary judgment. CR 314. The May 12, 2015 judgment was a final judgment.

CR 314. On May 18, 2015, Appellant filed a notice of appeal. CR 319.

Thereafter, Appellant sought no further relief from the trial court. CR 6, 330.

Page 9
SUMMARY OF ARGUMENT

The trial court’s May 12, 2015 judgment resolved all issues between the

parties and is a final judgment. It properly denied Appellant’s bill of review

request for attorney’s fees since (a) there was no pleading for, or proof of, any

breach of contract in the underlying lawsuit that could support attorney’s fees; (b)

there was no pleading for, or proof of, attorney’s fees in the underlying lawsuit; (c)

there is no legal authority that supports awarding a bill of review plaintiff

attorney’s fees in a bill of review proceeding; (d) Appellant was not a prevailing

party as required in the lease agreement; (e) it would be inequitable and against

sound policy to award Appellant any attorney’s fees; and, (f) Appellee was

permitted to non-suit Appellee’s claims when Appellee chose.

Page 10
ARGUMENT

I. As a matter of law, Appellant is not entitled to attorney’s fees as a bill of
review plaintiff. Further, Appellant did not prevail on the lease agreement
in the underlying lawsuit.

The general rule in Texas is that each litigant must pay its own attorney’s

fees. MBM Fin. Corp. v. Woodland Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009).

Recovery of attorney’s fees from the adverse party is allowed only when the

recovery is permitted by statute, by contract between the litigants, or under equity.

Akin, Gump, Strauss, Hauer & Feld, LLP v. National Dev. & Research Corp., 299

S.W.3d 106, 120 (Tex. 2009).

As a matter of law there is no authority allowing a bill of review plaintiff to

recover attorney’s fees (in a bill of review proceeding) where the bill of review

plaintiff was not entitled to attorney’s fees in the underlying lawsuit, or on any

appeal of the underlying lawsuit judgment.1

Here, Appellant failed to answer or appear in the underlying lawsuit before

the initial default judgment was rendered. Later, after the underlying judgment

was vacated, Appellant failed to file any claim in the underlying lawsuit (upon

which Appellant could recover attorney’s fees) before the underlying lawsuit was

non-suited. Thus, there was no pleading upon which Appellant could recover

attorney’s fees in the underlying lawsuit or any appeal of it.

1
The underlying lawsuit default judgment did not award any attorney’s fees to Appellant.
CR 16-17. The underlying lawsuit was non-suited April 2, 2015.
Page 11
Appellant’s brief fails to cite any legal authority which would permit this

Court to award a bill of review plaintiff attorney’s fees.

On the other hand, a party who successfully defends a bill of review

proceeding and who was entitled to recover attorney’s fees in the underlying

lawsuit may also recover attorney’s fees in a bill of review proceeding. Meece v.

Moerbe, 631 S.W. 2d 729 (Tex. 1982) (defendant/counterclaimant in underlying

lawsuit prevailed in underlying lawsuit on usury counterclaim for which attorney’s

fees were recoverable, and then later successfully defended a bill of review

proceeding and was awarded attorney’s fees).2

Appellant’s legal arguments fail to appreciate the purpose of awarding

attorney’s fees to a bill of review defendant who successfully defends a bill of

review. Further, the cases cited by Appellant do not support Appellant’s argument,

as noted below.

The Rodriguez v. Holmstrom case actually supports Appellee’s argument. In

Rodriguez, in the underlying lawsuit, plaintiff Rodriguez sued defendant

Holmstrom. Plaintiff Rodriguez obtained a default judgment against Holmstrom,

which included an award of attorney’s fees under the DTPA for both trial and any

appeal. Holmstrom filed a bill of review. The trial court granted the bill of review

2
Further, while not applicable on the relevant facts, as a general proposition, a court also
does not have discretion to award a bill of review plaintiff attorney’s fees under the Uniform
Declaratory Judgment Act. Mungia v. VIA Metro Transit, 441 S.W. 3d 542 (Tex. App.—San
Antonio 2014, no pet.).
Page 12
and then rendered a take nothing judgment for all parties. The court of appeals

reversed the trial court, denied the bill of review, and awarded plaintiff Rodriguez

the attorney’s fees awarded to him in the underlying trial court judgment. The

court of appeals held that Rodriguez’s successful appeal of the trial court’s

granting of the bill of review was considered an appeal for the purposes of

awarding Rodriguez the attorney’s fees allocated to Rodriguez in the original

default judgment.

In Bakali v. Bakali, husband filed a petition for divorce from wife. The trial

court signed a judgment granting the divorce. Wife filed a petition for bill of

review. Both parties moved for summary judgment in the bill of review

proceeding. The trial court granted husband’s motion for summary judgment and

awarded husband $3,000.00 in attorney’s fees based on statutory and common law

authority that permits a trial court to award attorney’s fees in divorce proceedings.

The court of appeals affirmed husband’s motion for summary judgment, including

the award of attorney’s fees, since husband was entitled to attorney’s fees if wife

had appealed the underlying judgment instead of filing a bill of review. The

appellate court specifically cited Meece v. Moerbe for the proposition that a party

who successfully defends a bill of review is entitled to recover attorney’s fees if

attorney’s fees are authorized in the prosecution of the underlying case.

Page 13
In Lowe v. Farm Credit Bank, the plaintiff bank in the underlying lawsuit

obtained a judgment against Lowe for a deficiency judgment based on a

promissory note and foreclosure of a real estate lien. Lowe filed a petition for bill

of review. The trial court denied Lowe’s petition for bill of review and granted the

bank’s motion for summary judgment for defending the bill of review proceeding

and awarded attorney’s fees to the bank. The court of appeals held that the trial

court had authority to award the bank attorney’s fees in the bill of review

proceeding since the trial court had authority to award attorney’s fees to the bank

in the underlying lawsuit.

Here, Appellant failed to answer or appear in the underlying lawsuit before

the initial default judgment was rendered. Later, after the underlying judgment

was vacated pursuant to the agreed order, Appellant failed to file any pleading in

the underlying lawsuit (upon which Appellant could recover attorney’s fees) before

the underlying lawsuit was non-suited. Thus, there was no claim upon which

Appellant could recover attorney’s fees in the underlying lawsuit or any appeal of

it.

The policy ramification of Appellant’s argument is significant. If

Appellant’s theory was correct, then every appellant involved in a breach of

contract case who suffered a no service of process default judgment could elect to

use an equitable bill of review proceeding, as opposed to a motion for new trial, in

Page 14
an effort by the appellant to recover attorney’s fees. This makes no sense.

Especially when a motion for new trial movant should offer to reimburse the non-

movant for non-movant’s attorney’s fees to prevail in a motion for new trial.

Director State Employees Worker’s Compensation Division v. Evans, 889 S.W.2d

266, 270 (Tex. 1994) (the willingness of a defendant who has suffered a default

judgment to pay the expenses of the plaintiff who obtained the default judgment is

an important factor for the Court to look to in determining whether it should grant

a motion for new trial). Thus, while a movant in a motion for new trial should

offer to pay the non-movant’s attorney’s fees, under Appellant’s theory, a movant

for a bill of review should be entitled to receive attorney’s fees.

Further, Appellant’s cite to a clause in the residential lease agreement does

not provide the necessary legal authority for this Court to award attorney’s fees to

a bill of review plaintiff.3 CR 278. This second bill of review proceeding is not

related to the transaction (renting a leasehold) described in the lease agreement.

CR 267. Appellant has not plead that Appellee breached the lease agreement and

there has been no finding that Appellee breached the lease agreement.4

3
The lease agreement could serve as a basis for attorney’s fees in the underlying lawsuit if
attorney’s fees had been requested by Appellant, proven by Appellant, and awarded to Appellant
in the underlying lawsuit.
4
Appellant’s first amended petition for bill of review plead certain causes of action. CR
162, 165. Appellant’s second amended petition for bill of review (Appellant’s live pleading)
omitted all causes of action. CR 256, 259.
Page 15
Finally, it would be inequitable to allow Appellant in an independent

equitable bill of review action to recover attorney’s fees where Appellant has, in

the underlying lawsuit, failed to plead or prove any breach of contract, and failed

to plead or prove any basis for attorney’s fees. Baker v. Goldsmith, 582 S.W. 2d

404, 408 (Tex. 1979); Intercontinental Group Partnership v. KB Home Lone Star,

LP, 295 S.W.3d 650, 661 (Tex. 2009) (where a jury found a breach of contract, but

no damages, the plaintiff was not entitled to any attorney’s fees since plaintiff was

not a prevailing party under the contract).

Therefore, there is no legal authority, policy argument, pleading, or contract

breach finding that supports Appellant’s argument for awarding attorney’s fees to a

bill of review plaintiff. The Court should deny Appellant’s appeal.

II. The effect of the Agreed Order about which Appellant indirectly complains
was agreed to by Appellant, thus Appellant has no basis for complaint.
Appellee’s non-suit of the underlying case was effective and the Court’s
order granting the non-suit was ministerial.

The trial court’s April 2, 2015 agreed order, April 7, 2015 order granting

non-suit, and May 12, 2015 judgment properly ruled on all matters in controversy

between Appellant and Appellee, and it was within the trial court’s plenary power

to do so. See CR 246, Appellee Appendix 1 and Appellant Appendix 8, and CR

314. The trial court’s rulings resolved all disputes between the parties.

The Texas Supreme Court has clearly established that in an independent

equitable bill of review no service default judgment type of case, once there is a
Page 16
finding that the party in the underlying lawsuit (here Appellant) was not served, the

parties revert to their original status as plaintiff and defendant, with the burden on

the original plaintiff to prove her case. Caldwell v. Barnes 154 S.W. 2d 93, 97

(Tex. 2004).

The trial court’s April 2, 2015 agreed order “set aside, vacated and declared

null and void and unenforceable” the March 19, 2014 default judgment.5 This

agreed order also properly denied Appellant’s summary judgment request for

attorney fees since a fact issue existed. Further, this agreed order ordered the

underlying lawsuit to proceed to trial at a later date as permitted by Tex. R. Civ. P.

174(b); Caldwell v. Barnes 154 S.W. 2d 93, 97 (Tex. 2004); Baker v. Goldsmith,

582 S.W. 2d 404, 408 (Tex. 1979). It is important that this Court note that the

April 2, 2015 order was an AGREED ORDER.6

After the Court signed the April 2 agreed order, which reestablished the trial

court’s plenary power over the underlying lawsuit, Appellee promptly non-suited

Appellee’s claims in the underlying lawsuit on April 2, 2015.7 The Court’s April

7, 2015 ministerial act of granting Appellee’s non-suit in the underlying lawsuit

was proper since the trial court had reacquired plenary power pursuant to Tex. R.

5
Appellee’s March 27, 2015 summary judgment response clearly stated that the only
reason Appellee was willing to agree to the April 2 agreed order was to conserve resources and
bring the appellate matters and bill of review case to a close. CR 241.
6
Appellant should not now be heard to complain about an order to which it agreed and
presented to the trial court for signature.
7
See Appellee’s Appendix 1.
Page 17
Civ. P. 329b(f). Alternatively, if the underlying lawsuit and bill of review

proceeding were somehow conflated into one proceeding, then the bill of review

lawsuit was the only proceeding over which the trial court still had plenary power,

and the Appellee was still permitted to non-suit Appellee’s claims, if any, in the

bill of review proceeding.

Thereafter, Appellant’s claim for attorney fees was the only remaining relief

requested by either party. CR 283.8

The trial court’s May 12, 2015 summary judgment order denied Appellant’s

claim for attorney fees as a matter of law, and was a final judgment in the bill of

review proceeding. The May 12 order specifically stated “This judgment finally

disposes of all claims asserted by and between all parties, and is final and

appealable. Any relief requested by the parties and not granted herein is denied.”

Appellant’s issue 2 argument that the trial court lacked plenary power when

the trial court granted the April 7, 2015 non-suit is incorrect for at least two

reasons.

First, once the trial court signed the April 2 agreed order, the underlying

judgment was set aside, and Appellee was free to either prosecute or non-suit

Appellee’s claims in the underlying lawsuit. Appellee elected to bring closure to

8
Appellant never filed any pleading in the underlying lawsuit.
Page 18
the dispute and non-suited Appellee’s claims.9

Second, Appellant’s no plenary power to grant non-suit argument has no

effect on the outcome. If the trial court reacquired plenary power on April 2, then

Appellee was free to non-suit Appellee’s claims. If the trial court did not reacquire

plenary power on April 2, then Appellee’s claims were disposed of by the trial

court’s May 12 final judgment. Either way, Appellee’s claims were resolved.

Appellant’s reliance upon Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d

63, 64 (Tex. App. - Houston [1st Dist.] 1992, no writ) (citing Kessler v. Kessler,

693 S.W.2d 522, 525 (Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.) is

misplaced. In Shahbaz, the appeal was dismissed since the judgment in the bill of

review action was not a final judgment because it did not address the merits of the

appellee’s claims. Similarly, in Kessler, the appeal was dismissed since the

judgment in the bill of review action was not a final judgment because the

judgment did not set aside the underlying lawsuit judgment and did not settle the

entire controversy between the parties. Here, the May 12, 2015 final judgment

resolved the claims of all parties in both the underlying lawsuit and the bill of

review lawsuit.

9
If this Court rules that Appellee or the trial court could not non-suit Appellee’s claims
because the trial court lacked plenary power, and this Court further rules that Appellant is
entitled to a trial on Appellant’s request for attorney fees, then Appellee requests that Appellee
be allowed to prosecute Appellee’s underlying lawsuit claims at trial.
Page 19
III. The trial court properly rendered a Final Judgment.

The trial court’s May 12, 2015 summary judgment order denied Appellant’s

claim for attorney’s fees, as a matter of law, and was a final judgment in the bill of

review proceeding. The May 12 order specifically stated “This judgment finally

disposes of all claims asserted by and between all parties, and is final and

appealable. Any relief requested by the parties and not granted herein is denied.”

The Court’s judgment met the requirements of a final judgment. Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 205 (Tex. 2001); In re Daredia, 317 S.W.3d 247, 248

(Tex. 2010).

Appellee’s April 20, 2015 motion for summary judgment and Appellant’s

response clearly made the trial court aware that Appellee had non-suited

Appellee’s claims on April 2, 2015. See CR 249-250, 283, 285. The trial court’s

May 12, 2015 final judgment was properly rendered since there were no remaining

claims to resolve after Appellee’s non-suit and the trial court’s determination, as a

matter of law, that Appellant was not entitled to any attorney’s fees as a bill of

review plaintiff. Further, Appellant never raised any concern about the May 12

judgment being a final judgment until Appellant filed this appeal. Finally,

Appellant never raised this concern in the trial court while the trial court had

plenary power, thus Appellant has waived any complaint. CR 6, 330. Tex R. Civ.

P. 329b(d).

Page 20
CONCLUSION AND PRAYER