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. 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. |
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