Reversed and Remanded and Opinion filed August 31 , 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00849

- CV

RODGER A. WEISS , Appellant

V.
KENNETH D. EICHNER , P.C. , Appellee

On Appeal from the Co unty Civil C our t at Law No
. 4

Harris C o unty, T exa s Trial Co urt C ause No. 1115309

O P I N I O N Appellant Rodger Weiss challenge s the trial court ’ s reconsideration of an interlocutory order granting his bill of review and rendition of judgment dismissing his bill of review , arguing i n two issues that th e trial court lack ed autho rity o r power to take t hose a ctions . We conclude that the t rial court had the authority to reconsider its prior interlocutory order , though we agree with Weiss that the trial court l acked authority to render ju dgment on his bill o f review because the presidin g judge di d not h ear the evidence on which she purported to render2

judgment. We reverse the judgment of the trial court and remand the case to the trial court for f

urther proceedings.

I. B ACKGROUND
A defa ult judgment was re nd ered a gainst Weiss on May 7, 2008 in favor of Kenne th D. Eichner , P.C

. ( Eichner) in caus e number CV52C02022425 , Harris County J ustice C ourt , Precinct 5, P l ace 2

. Nine year s later, Weiss filed a bill of review in the same court un d er cause number 175200174981 , s e eking t o set aside the judgment . In his b ill o f review, Weiss claim ed that he never received service of the suit and only le arned of the judgment after his bank contact ed him following receipt of a turno ver order. The justice court de nied Wei ss ’ s bill of r eview on J u ly 12, 2018 , which Weiss appealed via a trial de novo to County Civil Court at Law No. 4

. See Tex. R. Civ. P. 50 6.3 (appeal from j udgment in justice court “ must be tried de novo in the county court ” ) ; Tex. Gov’t Code Ann. § 25.1032 (a) ( county

c i vil court at law has jurisdiction in appeals of civil cases from j ustice courts in Harris C ounty ).
After a n evidentiary hearing th at beg an on May 28, 2019, the trial court signed a Jul y 17, 20 19 order g ranting W eiss ’ s bill of review 1
, setting aside the pr i or judgment in caus e number CV52C02022425 , real igning the parties with Eichner as plaintiff and Weiss as defendant

. 2 The July 17, 2019 order contained a Mother

1 Eichner appealed the July 17, 2 019 o rder to this court. Following a motion to dismiss on September 30, 2019, thi s court di smissed E ichner ’ s appeal. Eichner v. Weiss , No. 14

- 19

- 00693

- CV, 2019 WL 5078646, at *1 (Tex. App.

— Houston [14th Dist.] Oct. 10, 20 19, no pet .) (mem . op.) (per curia m)

.

2 Har ris County Civil Cou rt at Law N o . 4 is a statutory county court who se jurisdi cti o n is prescribed by statute. See Tex. Gov’ t Code Ann. §§ 25.00 03,

. 1032

. A “ statutory county court ” is a court created by the legislat ure under article V, s ection 1 o f the Texa s Constitution. Tex. Gov’t Code Ann

. § 21.009(2). A statutory c ount y court ha s j u risdiction over all causes and proceedi ngs, civil and crimina l, o riginal and appellate, pres cribed by law for county courts

. Tex. Gov ’t Code Ann

. § 25.0003 (a)

.3

Hubbard clause , which is in s ufficient to create a final judgment

. Lehmann v.
Har

- Con Corp

. , 3 9 S .W.3d 191, 192 (Tex. 2001) ( “ We no longer believe that a
M other Hubbard claus e in an order or in a judgment issued without a full trial can be taken to indicate finality ” )

. The p res idin g judge , Ho n. Lesley Briones , was unavailable on the hearing date , so a n ot he r county

- co urt

- at

- law judge , Hon. George Barnstone, presid ed over the initial portion of the bill

- of

- review proceedings

. 3 Rather than proceeding with trial on the merits , Eichner fil ed a

“ motion for new trial ” asserting the tri a l court erre d because t her e w as no evide n ce of extr insic fraud that would toll t he statute of limitation s on Weiss ’ s bill of review. This “ motion for new trial ” was functionally a motion fo r reconsideration. Se e generally Surgitek, Bristol

- Myers Corp. v. Abel , 997 S.W.2d 598, 60 1 ( Te x

. 1999) ( “ [W] e look to the substance of a motion to determine the relief sought, not merely to its title

. ” )

. However, even though Eichner ’ s “ mot ion for new tri al ” stated the order
g ranting Weiss ’ s bill of review was a final judgment and the parties f ile d b r iefing as if it w ere , t he trial court ’ s order grantin g the bill of revi ew was interlocutory

. Se e Jorda n v
. Jorda n , 90 7 S. W

. 2 d 47 1 , 47 2 ( Te x

. 199 5 ) ( pe r curia m ) ( “A bill of review which sets aside a prior judgment but does not dispose of the case on the

m e rits is interlocutory and not appealable. ” ); see als o Lehmann , 39 S.W.3d at 192

– 93 (Tex. 2001) (absent a co nventional trial, “a judgment

. . . is final for purposes of appeal if and only if either it actually disposes of all claims and parti es then b e fo re the court, regardless of its language, or it states w ith unmistakable clar ity that it is a

3 See Tex. Gov’ t Code Ann. § 74.121 ( “ The judg es of constitutional co unty cour ts, statutory cou n ty courts, justice courts, and small claims courts in a count y

. . . may exchange benches an d courtrooms with each oth er so that if one is absen t, disabled , or disqualifi ed, t he other may hold co urt for him witho ut the necessity of trans f erri ng the cas e. E ither judge may hea r all or any part of a case pending in cou rt and may rule and enter order s on and continue , determi ne, or render judg ment on all or any part of the cas e wit hout the necessity o f transferr ing it to his own docke t. ” )

.4

final judgment a s to all claims and all parties”)

. The order granting Weiss ’ s bill of review only set aside the prior judgment and did not dispos e of the case o n the merits.

F ollowing a hearing on Eichner ’ s “ motion for new trial , ” Judge Briones signed a September 2 5 , 201 9 “ Order Granting Defendant ’ s Motion f or New Trial

a nd Final Judgment ” that : (1) withdrew the previou s Jul y 17, 20 19 order gran ting the bill of re vie w , declaring the previous order “ null and vo id ” ; (2) de nied Weiss ’ s bill

- of

- re view claim against Eichner and rendered judgment that Weiss take nothing ; (3) awar d ed Eichner attorney ’ s fees , b oth for trial and app ea l ; and (4) rendered a final and appe a l a b le judgment

. II. A NALYSIS
A. L egal f

ramework

A bill of review is an equitable proc eeding brought by a party seeking to collaterally attack and set aside a p rior judgment that is no longer subje ct to

c hallenge by a motion for new tr ial or appeal. Baker v. Gold s mi th , 582 S.W.2d 404, 406 (Tex. 1979). Bill

- of

- rev iew plaintiffs mu st ordinarily plead and prove (1) a meritorious defense to the underlying cause of ac tion , (2) which the plaintiffs
were p revente d from making by the fraud, acc ident , or wrongful act of th e

o ppo sing party or official mistake , (3) unmixed w ith any fault or n egligence on their own part. Id

. a t 406

– 0 7

. When the b ill

- of

- review plaintiff claims lack of service, the trial court shou ld: (1) dispense with any pretrial in qui ry into a meritorious def

e ns e, (2) h old a trial, at which the bill

- of

- review plaintiff ass umes the burden of proving that the plaintiff was not serv ed with process, thereby concl usively establishing a lack of fault o r negli gence in allowing a default ju dgm ent to be rendered, and ( 3 ) con ditio ned upon an affirmative finding that the plaintif f was not served, allow the parties to re vert to their original status as5

plaintiff and defen dant with the burden on the original p laintif f to prove his or h er

case. Ca ldw ell v. Barnes , 154 S.W.3d 93 , 9 7

– 98 (Tex. 2004)

. A bill of review is subjec t to a four

- year limitations period, which may be tolled if there is a s howing of extrinsic fraud. PNS Stores, Inc. v. Rivera , 379 S.W.3d 26 7, 275 ( Tex. 2012) ; see Te x. Civ. Pra c. & R em. Code Ann. § 16.051 (r esi dual s tatut e of limitation s ); Law v. Law , 792 S.W.2d 15 0, 153 (Tex. App.

— Houston [1st Dist.] 19 90, writ denied) ( bil l of revie w must be filed withi n four years, with possible extension on showi ng of extrinsic fr aud)

. Extri nsic fraud is fr aud that den i es a litiga nt the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. Ki ng Ra nch , Inc. v. Chapman , 118 S.W. 3d 742, 752 (Tex. 2003)

. It occurs whe n a liti gant has been misl ed by his a dversary by fraud or decepti o n, or was d enied knowledge of the suit

. PNS Stores , 379 S.W.3d
at 27 5

. B. Judge Briones was not authorized to render judgment

In his first issue, Weiss arg ues that Judge Brione s ’s final judgment is void because she did not hear th e evidence on which the judg m en t i s based. B ecause appellate courts do not have subject

- matter jurisdiction over void judgments, w e will address this i ssue first. See Freedom Commc’ ns, Inc. v. Coronado , 372 S.W.3d 621, 6 24 (Tex. 2012) (per curia m)

. We must determine whether the defec t a lle ged by Weiss renders the judgment void or mer ely voidable

. PNS Stores, Inc. , 379 S.W.3d at 272 n.8

. Weiss bring s a direct a ttack here

— an appeal of the trial court ’s judgment

— after properl y preserv in g error in the trial court

. 4 “ T he distinction betwee n void and voidable

4 A voi d j udgment is typically an issue of fundamental error. F undamental error “ s urvives today in those rare ins tances in which the record shows the court l acked jurisdiction or that the pub lic i nterest is directly and adversely affected as that in terest is decl ared in th e s t atutes or the6

judgmen ts is critical when the time for a direct attack has expired. Before t h e n, the distinction is less sig nificant because

— wheth er t he judgment is void or voidable

— the re sult is the same: the judgment is vacate d. ” Id . at 272. However , the distinction also affe cts this court ’ s jurisdiction.

A judgment i s void w hen “the court rend e r ing judgm ent had no jurisdicti on of the parties or property, no jurisdiction of the subject ma t ter, no ju risd iction to [render] the pa rt icular judgment, or n o capa city to act.” Id

. The supreme court has specifically concluded that if a trial court lacks a u t hority to take some action , b ut engages in such action anyway, that action is void. See Ad Vi lla rai, LLC v. Chan Il Pak , 519 S.W.3d 1 32 , 137 , 140 (Tex. 2017 ) ( “ [B ] ecause no provision grants successor judges the authority to file findings on behalf of the i r predecessors displaced by an election, we agree

. . . that Judge Williams’s findings were in valid. ”). T herefore, we must determine w he t her Judge Briones ha d auth orit y to render judge ment after a bench tria l though she heard no evidence personally

. The r u l es of practice and proc edure in statutory county courts allow judges to exchange courts an d transfer cases from one court to anoth er

. See T ex. Gov’t Code An n. § 74.121 ( “ The judges of

. . . statutory county courts, justice courts , and

sm all claims cou r t s in a county

. . . may ex cha nge benches and courtrooms with each other so that if one is abs en t, disabl ed, or disqualified, the othe r may hol d court for him w ith out the necessity of trans ferring the case. ”). The rules also permit

a practic e in which one t rial judge hears part of a ca se and determines some issues while another trial judge complete s the case. Id

. ( “ Either judge may hear al l or an y part of a case pen ding in court and may rule and enter orders on and continue, determine , or ren der judgment o n all or any part of the cas e w ithout the necessity of transferring it to his own docke t ” )

. How ever, Gover nment Code section 74.121

Const itution of Texas. ” Pirtle v. Gregory , 629 S.W.2d 919, 9 20 (Tex. 1982)

. It is a rarely used exception to procedural preservation rules

. See In re B.L.D

. , 113 S.W.3d 340, 350 (Te x. 2003)

.7

is si lent as to w hether a jud ge has authority to rend er judgment following a bench trial when he or she has not personally h eard the evide nce.
Texas Rule of Civil Procedure 18 provi des authority to successor judges to

“ hold [] c ourt for the ter m provided, a nd all motions undisposed of shall be heard and de termined by him, and statements of facts and bills of exception shall b e approved by him

. ” Tex. R. Civ . P. 18 ( “ When judge dies during term, resigns or is disabled ” )

. Though nei ther Judge Briones n or J udge Ba rnstone is a success or jud ge as contemplated by Rule 18 , Texas courts have interpreted Ru le 18 to support a prohibition a gainst a judge rendering judg ment, in a be nch trial, when t he judge has not personally heard the evidenc e on which the judgment is ba se d. See Masa Custom Ho mes, L

LC v. Shahin , 547 S.W.3d 332, 336 (Tex. App.

— Dallas 2018, no pet.) (presiding judge died before r endering judgment and successo r judge had no power to render judgment without hearing evidence ) ; se e Gath e v. Gathe , 376 S.W.3d 308, 3 18

– 19 (Tex. App.

— Houston [14th Dist.] 2012, no pet .) (successor judge could not “reinstate ” div orce decree that had previ o usly bee n set aside without he aring evidence) ; Bexar C n ty. Ice Cream Co

. , Inc. v. Swensen ’ s Ic e Cre am Co. , 859 S.W .2d 402, 404 (Tex. A pp

. — San Antonio 1993, wr i t denied ), overruled on o ther gro unds by Barraza v. Koliba , 933 S.W.2d 164, 167 (T ex. App.

— San A n tonio 19 96, writ denied) (“We agree that a judge who has h eard no evidence cannot rule on a ca se.”) ; cf. Texaco, Inc. v. Pennzoil Co

. , 7 29 S.W.2d 768, 84 6

– 47 ( Tex. App.

— Houston [1st Dist. ] 1987, writ ref’d n.r.e.) ( no error in substitution of judge who hear d only some evidence and denied motion for mistrial in jury trial , because judge was no t fact fin der ).

T h e r easoning for this prohibition g oes beyond Texas Ru l e of Civil Procedure 18 and is in essence an expression of the public interest in th e integrity of t he t rial judge sitting as fact fin der

. See Tex. R. Civ. P. 18. In a bench t rial, the8

trial judg e observes the demeanor of the witnesses a nd weighs the ev ide n ce. Masa Custom Homes , 547 S .W.3d at 337 (“Only the judge who presid es over the benc h trial can se e and observe the witnesses ’ man nerisms, reactions, and demea nor.”). “Drawin g on these observati ons, the pr esiding judge, acting as fact fi nder, d etermines th e facts from the disputed evi dence.” Malone v. PLH Group, Inc ., 570 S

. W

. 3d 292 , 295 ( Tex. App.

— Hous to n [1st Dist.] 2018, no pet.)

. Because of the differences in reading the re cord and presiding o ver the tri al, “courts have recognized t he narrow, but ess ent i al exception to the otherwis e relatively free exchange of benches pr ovided for by th e rules and th e co nstitution: a judge who did not hear the evidence in a be nch trial canno t thereafter read th e trial rec ord and then render judgment in the case.” Masa Cu s tom Homes , 547 S.W.3d at 337 ; see Malone , 570 S.W.3d at 295 (“Anothe r judge exercisi ng a judicial ro le in the same court is not au thorized to render judgment w ithout hearing any of the evidence on which th e judgment is based.”)

. Here, J udge Briones , th e p r esiding judge, was not prese nt for the trial on Weiss ’ s bill of re vi ew . She did n ot hear any evide nc e at the hearing on Eichn er ’ s motion for new trial , nor was any attached t o the motion itself

. Th erefore, there was no evidence before J udge Briones when s h e considered E ichner ’s r eque st for rendition. Though Eichner ’s prima ry argument in i ts motion for ne w trial was that Weiss was pre cluded from pursuing his bill of review as a matter of law for f ailure
to a llege any extrinsic fr aud, th e trial court ’s judgm e nt does not reflect that it was rendered solely on legal issues

. T he judgment render ed by Jud ge Br io nes makes clear it was rendere d on the evidence presented a nd on file 5 :

T he Court having cons idered the pleadings, the Court ’s forego in g order granting De f endant ’s Motion for New Tria l, the

5 Judge Briones also made find ings of fact a nd c onclusions of law , w h ich comprehensively address the testimo ny received at trial.9

evidence and record presented and on file in this cause, and th e arguments of counsel and is of th e opini on that judgment sh ould be rendere d for Defendant Kenn e th D. Eich ner, P.C. I T IS THEREFORE AD JU DGED, DECREED AND O R D ERED AS FOLLOWS: Th e Plaint iff Rodger A. Weiss ’s Bill of Review cla im is DENIED in all respects a nd Plaintiff Rodg er A. Weiss sha ll take not hing against Defen dant Kenneth D. Eichner, P.C.
Eich n er argues t hat Weiss incorrectly assumes t hat Judge Briones w a s a

succes sor judge and was limited from issuing judgment on a case heard or partial ly disposed of b y th e other statutor y
- county

- c ourt judge that presided over the bill

- of

- re view trial. We agree with Eichn er that Judge Briones was not a s uccessor judge wh e n she r endere d judgm ent on t he bill of review, and we also agree that there were no un disposed mot io ns or un resolved matters at is sue in this case. However, we disagree with Eichner ’s con clusion that Judg e B riones had authority
to ren de r judgment in favor of Eichner. The law is clear that in a bench trial , a judge may n ot render judgment on evidence th at he or she has not personally heard. Though some of the cas es cited by Wei ss address factual s cenarios in volving a successor judge , it i s immaterial whethe r the judge is a successor ju dge, the pre siding judge , or a t empor ary judg e

. The prin ciple that a j ud ge may not render judgment on evidence that he or she has n ot personally he ard remains applica ble.

Next E ichner argues that his motion f or new trial was ak i n to a motion notwithstandin g the verdict and that Judge Briones c ould have properly rendered judg me nt as a matter of law. However , as already discussed above , the language of the judgment itsel f does not support Eichner ’ s argument.
H er e , we follow preced e nt fro m our high court and conclude that , because there is no authority in the law o r the rules gr an ting Justice Brione s power to10

render judgment on evidence she did not hear, Judge Brione s ’ ren dition of j udgment was both e rro r and vo id

. See Ad Villa rai , L L C , 519 S.W.3d at 140

. There fore, we rev erse the judgment of the trial court a nd remand the case for further proceedings on Weiss ’ s petition for b ill of review. B ased on our conclusion , we need not address the part ies ’ arguments regar di ng the pr op riety of the award of attorney ’ s fees to Eichner. Tex. R. App. P. 47. 1.

We sus tain Weiss ’ s first issue.
C. T rial court did not err in gr anti ng the motio n fo r new trial

In hi s se c ond issue, Wei ss argues that the t rial court erred by granting a new
t rial “ without heari n g any evidence at trial or o bserving the witnesses’ mannerisms, reactions and demeanor

. ” Weiss also ties his argument regarding th e motion f or n e w trial to his argume nt that the tr ial court ’ s re ndition of judgment was void. Th erefo re, W eiss believes that t he granting of the motion fo r new trial was void , or should be void, and urges this court to extend the requirement of stating a

r ea son for gran t ing a motion for new trial to bench tr ials

. However, as we have already discussed , Eichn er ’ s “ m otion for new t rial ” was functionally a motion to reconsider because t he order granting W e iss ’ s bill of review was interlocutory. A trial court retains con t inuing control over interlocutory orders and has the power to set those orders aside any time b efore a final judgm e nt is entered. See Fruehauf Corp. v. Carrillo , 848 S.W.2d 83, 84 (Tex. 1993 )

. T herefore, the tr ial court had the discretion to reconsider the interlocutory order
gr anting the bill of review

. Weiss ’ s second issue on appeal argue s stand ar d s regarding error t hat are specific to motions for new trial . Because Weiss ’ s motion for new trial arguments can not be more broadly applied to challenge the interlocutory order at issue , we overrul e Weiss ’ s second is sue

.11 III. C ONCLUSION
We reverse the final ju dgment and remand t h e case to the trial court for furt her p rocee din g s. See Tex. R. App. P. 43.2 ( d).

/s/ Charles A. S pa in J ustice

Pan el con sists of Justi ce s Bourliot , Z immere r, and Spain

.