Dewayne Murray, in His Capacity as the Chapter 7 Trustee of the Bankruptcy Estate of Sherman Robinson v. Desmond Pollard, Schneider National Carriers, Inc., Old Republic Insurance Company, and INS Insurance, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00004-CV
__________________

DEWAYNE MURRAY, IN HIS CAPACITY AS THE CHAPTER 7
TRUSTEE OF THE BANKRUPTCY ESTATE OF
SHERMAN ROBINSON, Appellant

V.

DESMOND POLLARD, SCHNEIDER NATIONAL CARRIERS, INC.,
OLD REPUBLIC INSURANCE COMPANY, AND
INS INSURANCE, INC., Appellees

__________________________________________________________________

On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-200781
__________________________________________________________________

MEMORANDUM OPINION

Appellant Dewayne Murray, in His Capacity as the Chapter 7 Trustee of the

Bankruptcy Estate of Sherman Robinson (“Appellant” or “Murray”) appeals from

the trial court’s “Order Denying Bill of Review.” The Bill of Review filed by Murray

in the trial court sought to vacate a nonsuit. We dismiss the appeal for lack of

jurisdiction, as explained below.

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Procedural Background

The Original Lawsuit

The underlying lawsuit concerns injuries Sherman Robinson (“Robinson” or

“Plaintiff”) allegedly sustained in a car accident that occurred on October 5, 2015.

After the car accident but before Robinson filed a lawsuit related to the car accident,

Robinson filed a Voluntary Petition for Chapter 7 Bankruptcy on February 18, 2016,

in the U.S. Bankruptcy Court for the Middle District of Louisiana.

On March 2, 2016, Robinson signed an agreement for attorney George Tucker

(“Tucker”) to represent him on the October 2015 car accident. On September 21,

2016, Murray was appointed as Bankruptcy Trustee (“Trustee”) for Robinson’s

bankruptcy estate. On May 17, 2017, the Trustee filed a motion with the Bankruptcy

Court to approve the employment of attorney Tucker as special counsel to pursue

Robinson’s personal injury claim in connection with the October 2015 collision,

which included a copy of Tucker’s contract for representation of Robinson.

Robinson filed an Original Petition on October 4, 2017, in Jefferson County

District Court, and the case was assigned trial cause number D-200781. Robinson

named Desmond Pollard (“Pollard”), Schneider National Carriers, Inc.

(“Schneider”), Old Republic Insurance Company (“Old Republic”), and INS

Insurance, Inc. (“INS”) as defendants. Robinson alleged that Pollard was driving the

vehicle that struck Robinson’s vehicle and that Pollard’s vehicle was owned by

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Schneider and was insured by Old Republic and INS. The Petition was filed pro se,

but with attorney Tucker’s address.

After filing a general denial answer, on November 3, 2017, Old Republic and

INS filed a Rule 91a Motion to Dismiss, alleging that Robinson had not stated any

claims against them in his Original Petition 1 and because a suit against an insurer

before liability has been determined is subject to dismissal.

Plaintiff’s Nonsuit

On November 28, 2017, Robinson filed Plaintiff’s Motion to Non-Suit

Without Prejudice as to defendants Schneider, Old Republic, and INS. The nonsuit

was signed by attorney Wendle Van Smith (“Van Smith”). At the same time, Van

Smith filed a notice that he was serving as lead counsel for Robinson. The trial court

signed an order granting the nonsuit without prejudice on November 29, 2017.

On August 17, 2018, Plaintiff filed a Motion for Continuance stating that

“bankruptcy counsel must obtain approval through the bankruptcy court prior to the

hearing [and] bankruptcy counsel must be named in this cause of action.” The trial

court granted the Motion for Continuance, and a hearing on the defendants’ Motion

to Dismiss was reset for September 19, 2018.

1
Although Robinson named Schneider, Old Republic, and INS as defendants
in his Original Petition, the Petition only stated a claim for negligence against
Pollard.
3
On August 28, 2018, Plaintiff filed a “First Supplemental and Amending

Petition for Damages[.]” Therein, Plaintiff explained that his bankruptcy case had

been converted from a Chapter 7 case to a Chapter 13 case and that Murray was the

Trustee acting on behalf of Robinson’s bankruptcy estate. The pleading stated that

“Murray has been consulted and agreed to act as plaintiff in this matter on behalf of

the estate of [] Robinson and as Bankruptcy Trustee.”

Murray Intervention and Attempt to Rejoin Nonsuited Defendants

On September 5, 2018, Murray as Trustee filed a Motion to Intervene and

Substitute in as Plaintiff. The Motion to Intervene asserted that the Trustee had

exclusive standing to prosecute the tort claim and that Robinson’s claim was the

property of the bankruptcy estate.

On September 10, 2018, Plaintiff Dewayne M. Murray, in his capacity as the

Chapter 7 Trustee for the bankruptcy estate of Sherman Robinson, & Sherman

Robinson, individually, filed a “Second Supplemental and Amending Petition for

Damages[.]” This pleading sought to add Schneider, Old Republic, and INS back

into the case as defendants. The pleading stated a claim for negligence against

Pollard and stated that the vehicle Pollard was driving when the collision occurred

was owned by Schneider and insured by Old Republic and INS.

On September 14, 2018, Pollard filed a Response opposing Plaintiffs’ attempt

to amend the petition and to add Schneider, Old Republic, and INS back in as

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defendants. The Response argued that Robinson had nonsuited these parties and was

attempting to add them back in “almost 12 months after the statute of limitations

expired[.]” The Response also challenged the Trustee’s attempt to add itself as a

plaintiff after the statute of limitations had run.

The trial court held a hearing on the pending motions on December 14, 2020.

Attorneys Tucker, Van Smith, and Lindsey Scott appeared on behalf of Robinson,

and attorney Ryan Richmond appeared on behalf of Murray as Trustee. The trial

court began by noting that although Robinson and Murray had sought to add

Schneider, Old Republic, and INS back in as defendants, the statute of limitations

had passed. The Trustee argued that the Trustee had standing to add the parties back

in irrespective of the previous dismissal because “the case is tolled once we file the

lawsuit itself.” The Trustee argued that 11 U.S.C. section 108(a)2 of the Bankruptcy

Code extends any applicable statute of limitations for an additional two years, so

that the Trustee would have two years from when the lawsuit was filed (in October

of 2016) to add in additional defendants—until October of 2018—and the amended

2
“Bankruptcy Code section 108(a) allows a trustee to commence an action on
behalf of the debtor’s estate within the period allowed by state law for such an action
or within two years after the filing of a petition for bankruptcy, whichever is later.”
Tow v. Pagano, 312 S.W.3d 751, 759-60 (Tex. App.—Houston [1st Dist.] 2009, no
pet.) (citing and explaining 11 U.S.C. § 108(a)); see also Hoa Dao & Keystone
Mgmt. v. Harris Cnty. Appraisal Dist., No. 01-17-00042-CV, 2017 Tex. App. LEXIS
10064, at *4 (Tex. App.—Houston [1st Dist.] Oct. 26, 2017, no pet.) (mem. op.)
(same). Appellants’ arguments on appeal do not rely on this section of the
Bankruptcy Code.
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pleading was filed within that period, in September of 2018. Pollard argued that the

Trustee did not even attempt to intervene as a plaintiff until more than two years

after the lawsuit was filed. Counsel for Pollard also argued that the Trustee’s

argument that it has “exclusive standing” to prosecute this lawsuit would mean that

the lawsuit filed by Robinson would have to be dismissed for lack of standing,

leaving only that portion of the lawsuit beginning when the Trustee sought to

intervene. In response, the Trustee distinguished standing and capacity and argued

that a debtor has standing to bring a claim even though he might lack capacity.

Robinson argued that he personally would have exclusive standing as to any

damages that exceed what is owed for “administrative fees, what the estate is entitled

to, and what the creditors are entitled to.”

On January 5, 2021, the trial court issued an Order in trial cause number D-

200781 dismissing the Plaintiffs’ attempt to rejoin Schneider, Old Republic and INS

as defendants in the case. Thereafter, the Trustee asked the trial court to sever the

claims against Schneider, Old Republic, and INS into a separate cause number so

that it may become a final judgment, and the trial court severed the claims against

Schneider, Old Republic, and INS into trial cause number D-200781-A.

On August 7, 9, and 10, 2023, the Trustee then filed Third, Fourth, and Fifth

Amended Petitions attempting to add Schneider back into the case as a defendant

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and claiming that Schneider, as Pollard’s employer, was vicariously liable for

Pollard’s negligence.3

Bill of Review

On August 16, 2023, the Trustee filed an Original Petition for Bill of Review

and Alternatively Motion to Vacate Non-Suit for Lack of Subject Matter Jurisdiction

(“Bill of Review”) in trial cause number D-200781. Therein, the Trustee alleged that

the Trustee was the real party in interest and had “exclusive standing” to prosecute

the claim and that when Van Smith filed the nonsuit against Schneider, Van Smith

had not been approved by the bankruptcy court, as required by federal law. The

Trustee further argued that lack of subject-matter jurisdiction rendered the nonsuit

void and a nullity. The Trustee asked the trial court to issue an order declaring the

nonsuit of Schneider void and to vacate Van Smith’s nonsuit of defendant Schneider.

Pollard filed a response to the Bill of Review on November 14, 2023, asking

the trial court to deny the Bill of Review. Pollard argued that: (1) the Trustee’s Bill

of Review was “procedurally improper” because a bill of review should be filed as

a new lawsuit, 4 whereas the Trustee chose to file his Bill of Review in the same

3
On January 5, 2023, Robinson filed a malpractice lawsuit in St. Helena
Parish, Louisiana against attorney Tucker, and on April 7, 2023, Robinson filed a
malpractice lawsuit in Harris County, Texas against attorney Van Smith. In both
cases, Robinson alleged that the attorneys’ malpractice diminished or eliminated his
ability to pursue his claims against Schneider and Old Republic.
4
Citing Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex 1979) (“A bill of
review is an independent equitable action brought by a party to a former action
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lawsuit; (2) the Bill of Review should be denied because it was barred by the statute

of limitations as a matter of law; (3) the Trustee’s Bill of Review does not include

the elements required to grant a bill of review—that is, that the Trustee’s Bill of

Review did not allege that it was prevented from making a meritorious defense by

accident, fraud, or wrongful conduct of an opposing party, or official mistake; (4) the

Trustee was judicially estopped from claiming it was not negligent because the

malpractice lawsuits filed against attorneys Tucker and Van Smith for nonsuiting

the claims against Schneider alleged the attorneys’ negligence, which precludes the

plaintiff from asserting that the failure to make a meritorious defense is not due to

its own fault or negligence; and (5) entry of nonsuit in November of 2017 was not

void but only potentially voidable, and the Trustee may not now avoid the applicable

statutes of limitations for the personal injury claim and cannot rely on section 549

of the Bankruptcy Code. 5

The trial court held a hearing on the Bill of Review on November 17, 2023.

Plaintiffs’ counsel argued that a judgment that is void for lack of subject-matter

seeking to set aside a judgment, which is no longer appealable or subject to motion
for new trial.”).
5
Bankruptcy Code 11 U.S.C. section 549 provides that a trustee may avoid a
transfer of property of the bankruptcy estate if the transfer occurred after the
commencement of the bankruptcy proceeding and was not authorized by the
bankruptcy court or the Bankruptcy Code, provided that the trustee acts within two
years of the date of the transfer sought to be avoided. See 11 U.S.C. § 549; Frankoff
v. Norman, No. 14-11-00152-CV, 2012 Tex. App LEXIS 5045, at 5 & n.10 (Tex.
App.—Houston [14th Dist.] June 26, 2012, no pet.) (mem. op.).
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jurisdiction may be set aside even after a trial court’s plenary power has expired.

Counsel for the Trustee also argued that a debtor, such as Robinson, has “at least

enough capacity and standing to preserve” a claim by filing a lawsuit, although the

debtor may not have the ability to prosecute the action.

Defendant’s counsel argued that a bill of review should be filed as a separate

action, not in the original action. Defendant’s counsel also argued that the nonsuit

was not void but only voidable. Defendant’s counsel further argued that a bill of

review must be filed within four years of the date of the disputed order or judgment.

Therefore, the Trustee had missed the statute of limitations for challenging the

nonsuit.

On December 4, 2023, the trial court signed an order denying the Bill of

Review and Alternative Motion to Vacate Nonsuit for Lack of Subject Matter

Jurisdiction. In a letter, the trial court stated that four years had expired from the date

that Robinson filed his nonsuit, “the ability for this Court to consider [the Bill of

Review] expired, and consequently, the Court is not able to grant the Plaintiff’s Bill

of Review.” Thereafter, the Trustee filed its notice of appeal.

Issues

On appeal, the Trustee argues that the trial court erred by denying its Bill of

Review as to Schneider. The Trustee articulates four issues in support of its position:

(1) attorney Van Smith did not represent the Trustee or the bankruptcy estate, the

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real party in interest, at the time he filed the nonsuit; (2) Robinson did not have

authority to nonsuit Schneider while the Chapter 7 bankruptcy estate existed;

(3) Robinson’s November 2017 nonsuit of Schneider (and other defendants) was

void because, at the time of the nonsuit, Van Smith had not been appointed or

approved by the Bankruptcy Court; and (4) the Bill of Review, filed in August of

2023, was not subject to the four-year time limitation for bringing a bill of review

because the challenge was based on a lack of subject-matter jurisdiction.

Applicable Law and Analysis

A nonsuit extinguishes a case or controversy from the moment the motion is

filed (or an oral motion is made in open court), and the only requirement is filing the

motion with the clerk of the court. Univ. of Tex. Med. Branch at Galveston v. Estate

of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam) (quotations omitted)

(citing Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990);

Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982)). A plaintiff’s nonsuit

is effective immediately upon filing, and it renders the merits of the nonsuited case

moot. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); see also

Epps v. Fowler, 351 S.W.3d 862, 868 (Tex. 2011) (“A nonsuit terminates a case

‘from the moment the motion is filed.’”) (quoting Joachim, 315 S.W.3d at 862). A

trial court’s granting of a nonsuit is a ministerial act, and the trial court generally has

no discretion to refuse to sign an order for dismissal once notice of nonsuit has been

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filed. See In re Greater Hous. Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325

(Tex. 2009) (orig. proceeding); In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig.

proceeding) (per curiam).

A plaintiff may reverse the nonsuit by filing a motion to reinstate or a motion

for new trial, or by agreement of the parties, so long as the trial court has plenary

power over the case. See DHJB Dev., LLC v. Graham, No. 03-18-00340-CV, 2018

Tex. App. LEXIS 9074, at **6-7 (Tex. App.—Austin Nov. 7, 2018, no pet.) (mem.

op.); Trimble v. Fin. Freedom Senior Funding Corp., No. 01-15-00851-CV, 2016

Tex. App. LEXIS 13477, at **4-5 (Tex. App.—Houston [1st Dist.] Dec. 20, 2016,

no pet.) (mem. op.); Braglia v. Middleton, No. 13-10-00101-CV, 2012 Tex. App.

LEXIS 1647, at **6-7 (Tex. App.—Corpus Christi–Edinburg Mar. 1, 2012, no pet.)

(mem. op.). Here, Robinson did not file a motion to reinstate nor motion for new

trial. Instead, the Trustee intervened and sought to amend the petition to add

Schneider, Old Republic, and INS back in as defendants, which the trial court denied.

In April of 2021, Pollard asked the trial court to sever out Plaintiffs’ claims against

Schneider, Old Republic, and INS, which the trial court granted. The claims against

the nonsuited defendants were severed into trial cause number D-200781-A.

Generally, the severance of an interlocutory order or judgment into a separate cause

makes it final. See Sealy Emergency Room, L.L.C. v. Free Standing Emergency

Room Managers of Am., L.L.C., 685 S.W.3d 816, 820 (Tex. 2024) (citing Diversified

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Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795

(Tex. 2001) (per curiam)); Trahan v. Premcor Refin. Grp. Inc., No. 09-17-00005-

CV, 2018 Tex. App. LEXIS 6493, at *1 n.1 (Tex. App.—Beaumont Aug. 16, 2018,

pet. denied) (mem. op.); Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex. App.—

Dallas 2002, no pet.). Our record does not include copies of any pleadings, motions,

or orders in the severed cause (D-200781-A).

Instead of filing a motion to reinstate or motion for new trial, the Trustee filed

a Bill of Review on August 16, 2023, in the original lawsuit (trial cause number D-

200781). “A bill of review is brought as a direct attack on a judgment that is no

longer appealable or subject to a motion for new trial.” Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 504 (Tex. 2010). “A bill of review is a separate,

independent suit to set aside a judgment that is no longer subject to a motion for new

trial or appealable.” Kholaif v. Safi, 636 S.W.3d 313, 317 (Tex. App.—Houston

[14th Dist.] 2021, pet. denied); see also Ross v. Nat’l Ctr. for the Emp. of the

Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (“a bill of review is a separate

proceeding from the underlying suit[]”).

Ordinarily, a bill of review is properly filed as a new trial cause, and if the

trial court denies the bill of review, the denial order becomes a final order for

purposes of appeal. See Alaimo v. U.S. Bank Trust Nat’l Ass’n, 551 S.W.3d 212, 215

(Tex. App.—Fort Worth 2017, no pet.). But here, the Trustee filed the bill of review

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in the original trial cause, and the appellate record reflects that lawsuit is still an

ongoing suit in which there has been no final judgment. As a general rule, an appeal

may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes of all

pending parties and claims in the record. Id. The Legislature has identified certain

statutory exceptions under which an interlocutory order may be appealed. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014. The order appealed is not one of the

statutory exceptions. See id.

Here, the order denying the Bill of Review is not a final judgment that

disposes of all claims and all parties in trial cause number D-200781. See Lehmann,

39 S.W.3d at 195. The order is not one of the statutory exceptions for which an

interlocutory appeal is authorized. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014.

Therefore, because the order appealed from is not a final, appealable judgment and

the bill of review was not tried in the severed-out cause or other separate trial cause,

we must dismiss the appeal for lack of jurisdiction. See Youngblood & Assocs.,

P.L.L.C. v. Duhon, 57 S.W.3d 63, 65-66 (Tex. App.—Houston [14th Dist.] 2001, no

pet.).6

After submission of the case, Appellant filed a Motion to Extend the time for
6

the trial court to amend its order to cure any procedural defects. We deny the motion.
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APPEAL DISMISSED.

LEANNE JOHNSON
Justice

Submitted on November 13, 2024
Opinion Delivered June 19, 2025

Before Golemon, C.J., Johnson and Wright, JJ.

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