What is a Bill of Review Case in Texas? A bill-of-review proceedings is a new law suit filed to challenge a final judgment in a prior suit that can no longer be appealed directly. See case law snippets on --> Bill of Review standard | direct vs collateral attack on a judgment | requirements for restricted appeal | Alexander v. Johnson (pdf) (Tex.App.- Houston [14th Dist.] Jan. 5, 2010)(Hedges) (denial of bill of review relief affirmed, challenge to paternity, genetic testing) (procedure and deadline for revocation, rescission of acknowledgement of paternity) Appellant, Larry Alexander, appeals from an order denying his petition for bill of review to set aside a default order in a suit affecting the parent-child relationship (“default SAPCR order”). The default SAPCR order appointed appellant possessory conservator of J.A., a child, and ordered appellant to pay child support. In two issues, appellant contends that he was entitled to bill-of-review relief because he was fraudulently induced to sign an acknowledgment of paternity (“AOP”), preventing him from presenting a meritorious defense to the trial court’s default SAPCR order. AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00778-CV Larry Alexander v. Tiffany Johnson Appeal from 311th District Court of Harris County In Re OAG of Texas (Tex.App.- Houston [14th Dist.] Aug. 19, 2008)(Brown)(bill of review, child support) (petition for mandamus challenging order lifting child support judgment and lien denied) MOTION OR WRIT DENIED: Opinion by Justice Jeff Brown Before Justices Brock Yates, Guzman and Brown 14-08-00665-CV In Re The Office of the Attorney General of Texas Appeal from 312th District Court of Harris County Trial Court Judge: Hon. David D. Farr Akinwamide v. Transportation Ins. Co. (Tex.App.- Houston [14th Dist.] Mar. 11, 2008)(Anderson) (bill of review fails, but vexatious litigant finding and award of security reversed) DISMISSED IN PART AND REVERSED AND RENDERED IN PART: Opinion by Justice Anderson 14-06-01054-CV Patrick Olajide Akinwamide v. Transportation Insurance Co., CNA Insurance Co. & Automatic Data Processing, Inc. Appeal from 80th District Court of Harris County Trial Court Judge: Lynn M. Bradshaw-Hull National Football League Players Inc. v. Balek's Bar-B-Q (Tex. App.- Houston [1st Dist.] Mar. 6, 2008) (Nuchia) (bill or review, default judgment on breach of contract, BoC, counterclaim) AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Nuchia 01-06-01106-CV National Football League Players Incorporated and National Football League Players Association v. Blake's Bar-B-Q, Inc. Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Hon. Roberta A. Lloyd Williams v. TDCJ-ID No. 01-06-00404-CV (Tex.App.- Houston [1st Dist.] Jan. 10, 2008)(Taft) (bill of review denied) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Hanks and Higley) Howard Vanzandt Williams v. Texas Department of Criminal Justice-ID Appeal from 23rd District Court of Brazoria County (Judge Ben Hardin) Nitsche v. Teams of Texas (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(Anderson) (bill of review, mold water damage claim) Denial of Bill of Review affirmed - Petitioner had other available remedy Thomas v. Thomas (Tex.App.- Houston [14th Dist.] Aug. 23, 2007)(Seymore) (bill of review denied, family law, divorce, nonmarital child; husband had other available remedy) AFFIRMED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-06-00069-CV William Robert Thomas v. Patricia Russell Thomas Appeal from 245th District Court of Harris County (Judge G. Annette Galik) Lentino MD v. Frost National Bank (Tex.App.- Houston [14th Dist.] Aug. 2, 2007)(Anderson)(bill of review) AFFIRMED: Opinion by Justice Anderson Before Justices Anderson, Fowler and Edelman 14-05-01179-CV Eduardo P. Lentino M.D., Individually, Eduardo P. Lentino, M.D. Assignee of Jorge A. Lentino, M.D. and Marta A. Lentino v. Frost National Bank , F/K/A/ Cullen Center Bank and Trust Appeal from 281st District Court of Harris County (Judge David J. Bernal) Bill of Review Relief Denied - Lack of Diligence in Pursuing Available Remedies Davis v. Smith (Tex.App.- Houston [1st Dist.] Aprl. 5, 2007)(Higley) (bill of review denied, petitioner was not diligent in pursuing available remedies) No. 01-06-00799-CV Daisy Mae Davis v. Jim R. Smith and Cost Plus of Texas, Inc. Appeal from County Civil Court at Law No 1 of Harris County (Judge R. Jack Cagle) Houston Court of Appeals Affirms Denial of Bill of Review Petitioners Did Not Have Meritorious Grounds to Challenge the Judgment Nitsche v. Teams of Texas (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(Anderson) (bill of review properly denied) Plaintiffs failed to establish third-party beneficiary status and did not have right of action against Defendant under Texas law, thus no valid basis to appeal the summary judgment. Bottom line: Having determined that appellants cannot satisfy the first prong of the text for bill of review relief,the Court affirms the judgment of the trial court. A bill of review is an equitable proceeding brought by a party to a former action seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.- Houston [14th Dist.] 2002, no pet.). To set aside a judgment - here, summary judgment - utilizing a bill of review, the petitioner ordinarily must plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that he was prevented from making due to the fraud, accident or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own. Id. In the context of a lost appeal, however, the party need not show a meritorious defense, but rather a meritorious ground of appeal, such that "the judgment might, and probably would, be reversed." McRoberts v. Ryals, 863 S.W.2d 450, 455 n.1 (Tex. 1993) (Enoch, J. dissenting) (citing Petro-Chemical Transp. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974)). Official mistake, or a failure to serve the party seeking the bill with proper notice, will relieve the petitioner from establishing the second prong of the test. See Perdue v. Patten Corp., 142 S.W.3d 596, 604-05 (Tex. App.-Austin 2004, no pet.). Receiving notice too late also relieves a party from establishing due diligence in pursuing legal remedies against the judgment, which ordinarily must be proven to seek a bill of review. Id. at 607. The grounds upon which we may grant relief upon a bill of review are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Nguyen, 93 S.W.3d at 293. In our review, we must indulge every presumption in favor of the trial court's ruling. Id. We will not disturb that ruling unless the petitioner is able to show affirmatively that there was an abuse of judicial discretion. Id. A trial court abuses its discretion only if it acts in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles. Id. Finally, because we have no findings of fact or conclusions of law entered in this case, we must affirm the trial court's ruling on any theory finding support in the record. See id. Go to ---> Houston Opinion Homepage TEXAS SUPREME COURT BILL OF REVIEW CASES & CASE LAW U.S. v. Boateng, No. 05-0752 (Tex. Apr. 20, 2007)(per curiam)(sovereign immunity, bill of review) Kiefer v. Touris, No. 05-0651 (Tex. May 26, 2006)(per curiam opinion)(bill of review, parentage) IN THE SUPREME COURT OF TEXAS ════════════ No. 05-0651 ════════════ Terry Kiefer and Kelly Jo Wood, Petitioners, v. Ioannis John Touris and Dennis G. Brewer, Jr. ex rel. A. K., a Minor, Respondents ════════════════════════════════════════════════════ On Petition for Review from the Court of Appeals for the Tenth District of Texas ════════════════════════════════════════════════════ PER CURIAM In this case we consider whether a judgment in a bill of review proceeding that sets aside a parentage adjudication, but does not make a new parentage adjudication, is an appealable judgment. We conclude that it is not. Kelly Jo Wood married Terry Kiefer in 1995. The next year, while married to Kiefer, Wood began an affair with Ioannis John Touris. In 1998, Wood became pregnant with Touris’s child, and A.K.[1] was born later that year.[2] Wood and Kiefer divorced in 2000. The divorce decree adjudicated Wood and Kiefer parents of A.K., naming them joint managing conservators. Kiefer was ordered to pay child support in the amount of $1,500 per month. Wood did not notify Touris of her divorce or of the parentage adjudication in the decree. While still not disclosing her divorce or Kiefer’s custody and support obligations, Wood sent Touris a proposed “separation agreement” to formally acknowledge their relationship and that A.K. was born of that relationship. The agreement further provided for Wood and Touris to be A.K.’s joint managing conservators, for Touris to pay child support of $800 per month for the first few years and then $1,600 per month starting in 2006, and for Touris to receive the dependency deduction for A.K. on his income tax return. Without signing the agreement, Touris began paying Wood child support for A.K. In 2001, Wood and Touris filed an acknowledgment of paternity with the Bureau of Vital Statistics, naming Touris as A.K.’s father. Wood also caused A.K.’s birth certificate to be changed to reflect Touris as A.K.’s father. Touris then obtained a passport for A.K. with Touris as the child’s last name. In 2002, Touris filed a petition for voluntary paternity, asking to be formally adjudicated the father of A.K. DNA testing established to a 99.9% certainty that Touris is A.K.’s biological father. After discovering Wood’s divorce decree declaring Kiefer and Wood to be A.K.’s parents, Touris filed a bill of review to set aside the decree’s parentage adjudication to clear the way for his voluntary paternity petition.[3] An attorney ad litem, who was appointed to represent A.K.’s interests, intervened in the bill of review proceeding to also seek a new trial on parentage. The trial court granted the bill of review by summary judgment, setting aside the parentage adjudication in the divorce decree, but the court did not enter a new adjudication of A.K.’s parentage. Wood and Kiefer appealed. Although the court of appeals affirmed the trial court’s summary judgment, it lacked jurisdiction to review the case. “A bill of review which sets aside a prior judgment but does not dispose of all the issues of the case on the merits is interlocutory in nature and not a final judgment appealable to the court of appeals or the supreme court.” Tesoro Petroleum v. Smith, 796 S. W.2d 705, 705 (Tex. 1990) (per curiam); see also Tex. Employers Ins. Ass’n v. Arnold, 88 S.W.2d 473, 474 (Tex. 1935) (“When [a bill of review] at a subsequent term is brought before the proper court, it is not contemplated that the cause shall be divided and tried by piecemeal; one in which a judgment is rendered setting aside the former judgment and the other in a trial on the merits, but every issue arising on the merits must be disposed of, and the relief prayed for is either denied or granted in the one proceeding.”). In this bill of review, although the trial court set aside the parentage adjudication previously made in the Wood / Kiefer divorce decree—and by implication Kiefer’s custody and support obligations—it did not at the same time enter a new parentage adjudication with its attendant custody and support orders. With these issues left undecided, the summary judgment order was not final and appealable, and the court of appeals was without jurisdiction to reach the merits of the appeal. Accordingly, without hearing oral argument, we grant the petitions for review, reverse the judgment of the court of appeals, and dismiss the appeal for lack of jurisdiction. OPINION DELIVERED: May 26, 2006 -------------------------------------------------------------------------------- [1] The parties refer to the child as A.K. and A.T. We refer to the child as A.K. as a matter of convenience and not as a judgment on the merits of the child’s parentage. [2] Wood alleges she was sure the baby was Kiefer’s when she became pregnant. [3] Touris filed his voluntary paternity petition in a different court than the divorce decree and his accompanying bill of review. However, the district court that issued the divorce decree had exclusive, continuing jurisdiction of any suit affecting the parent-child relationship involving A.K. Tex. Fam. Code ' 155.001; see Curtis v. Gibbs, 511 S.W.2d 263, 266-67 (Tex. 1974). Therefore, it appears that the district court that issued the divorce decree has jurisdiction over the parentage issue. |
| Bill-of-Review Cases from the Houston Courts of Appeals Houston Opinions |
| The Restricted Appeal Alternative |
RESTRICTED APPEAL CASES FROM
HOUSTON COURTS OF APPEALS
Forrester v. Ginn (Tex.App.- Houston [14th
Dist.] Jan. 10, 2008)(majority op. on rehearing
by Hedges)(DWOP dismissal reversed in
restricted appeal)
REVERSED AND REMANDED: Opinion by
Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson
and Guzman
14-06-00549-CV Jeff Forrester and Kim
Forrester v. Emmanuel Ginn, A&R Transport,
Inc., Keith Jackson, and Steve Brantley
Appeal from 333rd District Court of Harris
County (Hon. Joseph J. Halbach)
Justice Guzman issued a dissenting opinion
on rehearing in Forrester v. Ginn
Bank Repossessed Car Co. v. Who's Calling,
Inc. (Tex.App.- Houston [14th Dist.] Sep. 4,
2007)(Anderson)(restricted appeal, default,
service of process on Secretary of State)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Fowler and
Seymore14-05-01251-CV Bank Repossessed
Car Co. d/b/a Thirty Car Sales v. Who's Calling,
Inc.
Appeal from County Civil Court at Law No 2 of
Harris County (Judge Gary Michael Block)
Forrester v. Emmanuel Ginn, A&R Transport,
Inc., (Tex.App.- Houston [14th Dist.] Jul. 26,
2007)(Hedges)(DWOJ, restricted appeal)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson
and Guzman
14-06-00549-CV Jeff Forrester and Kim
Forrester v. Emmanuel Ginn, A&R
Transport, Inc., Keith Jackson, and Steve
Brantley
Appeal from 333rd District Court of Harris
County (Judge Joseph J. Halbach)
Berger v. Howard R. King & Hill, Angel & King,
L.L.P (Tex.App.- Houston [1st Dist.] Jun. 21,
2007)(Bland)(restricted appeal, malpractice,
sanctions)
AFFIRM TC JUDGMENT: Opinion by Justice
Bland
Before Justices Nuchia, Hanks and Bland
01-06-00871-CV Larry Berger v. Howard R.
King & Hill, Angel & King, L.L.P., and Sam Lee,
II, et al--Appeal from 23rd District Court of
Brazoria County (Hon. Ben Hardin)
Parent's signature on final decree
constituted participation. Restricted
Appeal limited to those who did not
participate at trial.
Chakey v. Chakey (Tex.App.- Houston [1st Dist.]
May 17, 2007)(Nuchia)(appeal dismissed)
DISMISS APPEAL: Opinion by Justice Nuchia
Before Justices Nuchia, Hanks and Bland
01-06-00848-CV Elizabeth Marie Chakey v.
Zachary R. Chakey, Jr. and Dawn A. Chakey
Appeal from
312th District Court of Harris County
Default Judgment in Parentage
Action Reversed in Part in
Restricted Appeal
Miles v. Peacock and OAG (Tex.App.- Houston
[1st Dist.] Apr. 19, 2007)(Bland)
[family law, restricted, paternity, limitations]
AFFIRM TC JUDGMENT IN PART, REVERSE
TC JUDGMENT IN PART, AND REMAND CASE
TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
(Before Chief Justice Radack, Justices
Jennings and Bland)
01-06-00313-CV In The Matter of the Marriage
of Bridget Peacock and Carnell Peacock
Appeal from 247th District Court of Harris
County (Judge Bonnie Hellums)
We conclude that Miles has waived any statute
of limitations defense and therefore affirm that
portion of the trial court’s judgment
adjudicating his paternity of N.S.P. With
respect to the portions of the judgment
awarding child support and denying
possession, we conclude that insufficient
evidence supports the trial court’s findings and
therefore reverse and remand for further
proceedings.
Whitaker v. Rose (Tex.App.- Houston [14th
Dist.] Feb. 6, 2007)(Anderson)(auto PI, default,
restricted appeal) [personal injury-auto,
restricted appeal, no answer default judgment]
AFFIRMED AS MODIFIED IN PART AND
REVERSED AND RENDERED IN PART:
Opinion by Justice Anderson
(Before Justices Anderson, Edelman and Frost)
14-04-01178-CV Marcus Dunte Whitaker v.
Lois Rose, John Rose Jr., and John Rose III
Appeal from County Civil Court at Law No 1 of
Harris County (Judge R. Jack Cagle)
HOUSTON COURTS OF APPEALS
Forrester v. Ginn (Tex.App.- Houston [14th
Dist.] Jan. 10, 2008)(majority op. on rehearing
by Hedges)(DWOP dismissal reversed in
restricted appeal)
REVERSED AND REMANDED: Opinion by
Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson
and Guzman
14-06-00549-CV Jeff Forrester and Kim
Forrester v. Emmanuel Ginn, A&R Transport,
Inc., Keith Jackson, and Steve Brantley
Appeal from 333rd District Court of Harris
County (Hon. Joseph J. Halbach)
Justice Guzman issued a dissenting opinion
on rehearing in Forrester v. Ginn
Bank Repossessed Car Co. v. Who's Calling,
Inc. (Tex.App.- Houston [14th Dist.] Sep. 4,
2007)(Anderson)(restricted appeal, default,
service of process on Secretary of State)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Fowler and
Seymore14-05-01251-CV Bank Repossessed
Car Co. d/b/a Thirty Car Sales v. Who's Calling,
Inc.
Appeal from County Civil Court at Law No 2 of
Harris County (Judge Gary Michael Block)
Forrester v. Emmanuel Ginn, A&R Transport,
Inc., (Tex.App.- Houston [14th Dist.] Jul. 26,
2007)(Hedges)(DWOJ, restricted appeal)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson
and Guzman
14-06-00549-CV Jeff Forrester and Kim
Forrester v. Emmanuel Ginn, A&R
Transport, Inc., Keith Jackson, and Steve
Brantley
Appeal from 333rd District Court of Harris
County (Judge Joseph J. Halbach)
Berger v. Howard R. King & Hill, Angel & King,
L.L.P (Tex.App.- Houston [1st Dist.] Jun. 21,
2007)(Bland)(restricted appeal, malpractice,
sanctions)
AFFIRM TC JUDGMENT: Opinion by Justice
Bland
Before Justices Nuchia, Hanks and Bland
01-06-00871-CV Larry Berger v. Howard R.
King & Hill, Angel & King, L.L.P., and Sam Lee,
II, et al--Appeal from 23rd District Court of
Brazoria County (Hon. Ben Hardin)
Parent's signature on final decree
constituted participation. Restricted
Appeal limited to those who did not
participate at trial.
Chakey v. Chakey (Tex.App.- Houston [1st Dist.]
May 17, 2007)(Nuchia)(appeal dismissed)
DISMISS APPEAL: Opinion by Justice Nuchia
Before Justices Nuchia, Hanks and Bland
01-06-00848-CV Elizabeth Marie Chakey v.
Zachary R. Chakey, Jr. and Dawn A. Chakey
Appeal from
312th District Court of Harris County
Default Judgment in Parentage
Action Reversed in Part in
Restricted Appeal
Miles v. Peacock and OAG (Tex.App.- Houston
[1st Dist.] Apr. 19, 2007)(Bland)
[family law, restricted, paternity, limitations]
AFFIRM TC JUDGMENT IN PART, REVERSE
TC JUDGMENT IN PART, AND REMAND CASE
TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
(Before Chief Justice Radack, Justices
Jennings and Bland)
01-06-00313-CV In The Matter of the Marriage
of Bridget Peacock and Carnell Peacock
Appeal from 247th District Court of Harris
County (Judge Bonnie Hellums)
We conclude that Miles has waived any statute
of limitations defense and therefore affirm that
portion of the trial court’s judgment
adjudicating his paternity of N.S.P. With
respect to the portions of the judgment
awarding child support and denying
possession, we conclude that insufficient
evidence supports the trial court’s findings and
therefore reverse and remand for further
proceedings.
Whitaker v. Rose (Tex.App.- Houston [14th
Dist.] Feb. 6, 2007)(Anderson)(auto PI, default,
restricted appeal) [personal injury-auto,
restricted appeal, no answer default judgment]
AFFIRMED AS MODIFIED IN PART AND
REVERSED AND RENDERED IN PART:
Opinion by Justice Anderson
(Before Justices Anderson, Edelman and Frost)
14-04-01178-CV Marcus Dunte Whitaker v.
Lois Rose, John Rose Jr., and John Rose III
Appeal from County Civil Court at Law No 1 of
Harris County (Judge R. Jack Cagle)
A restricted appeal is a procedural
device available to a party who did not
participate, either in person or through
counsel, in a proceeding that resulted
in a judgment against the party. Tex.
R. App. P. 30. It constitutes a direct
attack on a default judgment. Id.; Gen.
Elec. Co. v. Falcon Ridge Apartments
Joint Venture, 811 S.W.2d 942, 943
(Tex. 1991).
A party filing a restricted appeal
must demonstrate that
(1) he appealed within six months after
the judgment was rendered,
(2) he was a party to the suit,
(3) he did not participate in the actual
trial of the case, and
(4) error appears on the face of the
record. See Tex. R. App. P. 30;
Quaestor Inv., Inc. v. Chiapas, 997 S.W.
2d 226, 227 (Tex. 1999). The face of
the record includes all papers on file in
the appeal, including the clerk’s record
and any reporter’s record. DSC Fin.
Corp. v. Moffitt, 815 S.W.2d 551, 551
(Tex. 1991); Davenport v. Scheble, 201
S.W.3d 188, 193 (Tex. App.—Dallas
2006, pet. filed). Because a restricted
appeal affords an appellant the same
scope of review as an ordinary appeal,
he may challenge the legal and factual
sufficiency of the evidence. See
Norman Commc’ns v. Tex. Eastman
Co., 955 S.W.2d 269, 270 (Tex. 1997);
Whitaker v. Rose, No. 14-04-01178-
CV, 2007 WL 324595, at *1 (Tex. App.
—Houston [14th Dist.] Feb. 6, 2007, no
pet.).
device available to a party who did not
participate, either in person or through
counsel, in a proceeding that resulted
in a judgment against the party. Tex.
R. App. P. 30. It constitutes a direct
attack on a default judgment. Id.; Gen.
Elec. Co. v. Falcon Ridge Apartments
Joint Venture, 811 S.W.2d 942, 943
(Tex. 1991).
A party filing a restricted appeal
must demonstrate that
(1) he appealed within six months after
the judgment was rendered,
(2) he was a party to the suit,
(3) he did not participate in the actual
trial of the case, and
(4) error appears on the face of the
record. See Tex. R. App. P. 30;
Quaestor Inv., Inc. v. Chiapas, 997 S.W.
2d 226, 227 (Tex. 1999). The face of
the record includes all papers on file in
the appeal, including the clerk’s record
and any reporter’s record. DSC Fin.
Corp. v. Moffitt, 815 S.W.2d 551, 551
(Tex. 1991); Davenport v. Scheble, 201
S.W.3d 188, 193 (Tex. App.—Dallas
2006, pet. filed). Because a restricted
appeal affords an appellant the same
scope of review as an ordinary appeal,
he may challenge the legal and factual
sufficiency of the evidence. See
Norman Commc’ns v. Tex. Eastman
Co., 955 S.W.2d 269, 270 (Tex. 1997);
Whitaker v. Rose, No. 14-04-01178-
CV, 2007 WL 324595, at *1 (Tex. App.
—Houston [14th Dist.] Feb. 6, 2007, no
pet.).
