In=20 The
For=20 The
DAISY =
MAE DAVIS,=20
Appellant JIM R. =
SMITH AND=20
COST PLUS OF TEXAS, INC., Appellees
On =
Appeal from=20
County Civil Court at Law No. 3 Harris =
County,=20
Texas Trial =
Court Cause=20
No. 862596
O P I N =
I O=20
N In one =
issue,=20
appellant, Daisy Mae Davis, appeals the dismissal of her petition =
for bill=20
of review. We affirm. Summary =
of Facts and=20
Procedural History On May 28, 2004, Davis sued =
appellees,=20
Jim R. Smith and Cost Plus of Texas, Inc. (collectively, "Cost =
Plus"), for=20
personal injuries she allegedly sustained when she slipped and =
fell on=20
defective flooring at a Cost Plus store. According to Cost Plus, =
the case=20
was set for a status conference on March 11, 2005 and for trial on =
March=20
14, 2005. At the March 11, 2005 =
conference, the=20
trial was reset and the trial court ordered the parties to appear =
for a=20
subsequent status conference on July 18, 2005. On June 21, 2005, Cost Plus =
moved to=20
compel Davis's deposition. On July 14, 2005, the trial court =
ordered Davis=20
to appear for deposition on August 15, 2005. On July 18, 2005, Davis failed =
to appear=20
for the status conference, and the trial court dismissed her suit =
for want=20
of prosecution, pursuant to the March 11, 2005 order. On July 25, =
2005,=20
Davis moved to reinstate the case, asserting that her failure to =
appear at=20
the status conference was neither intentional nor the result of =
conscious=20
indifference, but the result of a calendaring error. It is undisputed that, on July =
29, 2005,=20
at a hearing on Davis's motion to reinstate, the trial court took =
Davis's=20
reason for her failure to appear "under advisement" and did not =
enter a=20
written ruling. In addition, the trial court instructed Davis to =
appear=20
for deposition on August 15, 2005, as previously ordered. =
According to=20
Cost Plus, however, the trial court also instructed Davis to =
request a=20
rehearing of her motion to reinstate once the deposition was =
complete.=20
Davis disputes having been given any such instruction. The record =
does not=20
contain a transcript of the hearing. On August 15, 2005, Davis =
appeared for=20
deposition and, on September 12, 2005, the reporter's =
certification was=20
filed in the trial court. Davis did not seek a ruling on her =
motion to=20
reinstate. Rather, on February 2, 2006, Davis moved to mediate the =
case.=20
The trial court responded that the case had been dismissed on July =
18,=20
2005. On April 20, 2006, Davis filed =
a petition=20
for bill of review, arguing that she was unable to present the =
merits of=20
her case as a result of accident and official mistake. =
Specifically, Davis=20
asserted that she had mistakenly believed that the filing of the=20
reporter's certification was sufficient to advise the court that =
Davis had=20
met the condition necessary for reinstatement. In addition, Davis =
asserted=20
that there was an "official mistake" in that she "believed that =
the Court=20
would inform her that her cause had [to] be re-docketed upon the =
Court=20
receiving an affirmative proof that she had met the conditions for =
doing=20
so--to wit: the reporter's certification." Cost Plus moved to dismiss =
Davis's=20
petition for bill of review on the grounds that Davis had failed =
to=20
diligently pursue a ruling on her motion to reinstate, that the =
trial=20
court no longer had plenary power to reinstate the case, and that =
Davis=20
had negligently permitted the judgment to become final without =
seeking an=20
appellate remedy. On August 16, 2006, the trial court granted the =
motion=20
of Cost Plus and dismissed Davis's petition for bill of review. =
This=20
appeal ensued.Bill of Review In one issue, Davis contends =
that the=20
trial court erred by dismissing her petition for bill of=20
review. A. Applicable Law and =
Standard of=20
Review A bill of =
review is an=20
equitable proceeding brought by a person seeking to set aside a =
judgment=20
that is no longer subject to challenge by a motion for new trial =
or=20
appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96-97 (Tex. =
2004);=20
Wolfe v. Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex.=20
App.--Houston [1st Dist.] 2001, pet. denied). Generally, a bill of =
review=20
plaintiff must allege and prove (1) a meritorious claim or defense =
to the=20
cause of action that supports the judgment, (2) which she was =
prevented=20
from making by fraud, accident, or wrongful act of the opposing =
party, (3)=20
unmixed with any fault or negligence of her own. =
Caldwell, 154=20
S.W.3d at 96; Wolfe, 53 S.W.3d at 773. If the =
bill of=20
review plaintiff alleges that judgment was rendered without proper =
notice,=20
she is relieved from showing the first and second elements. =
See=20
Caldwell, 154 S.W.3d at 97 (citing Peralta v. Heights =
Med.=20
Ctr., Inc., 485 U.S. 80, 85, 108 S. Ct. 896, 899 =
(1988)).=20
We review a=20
trial court's ruling on a bill of review for an abuse of =
discretion,=20
indulging every presumption in favor of the court's ruling.=20
Interaction, Inc./State v. State/Interaction, Inc., 17 =
S.W.3d=20
775, 778 (Tex. App.--Austin 2000, pet. denied). A trial court =
abuses its=20
discretion if it acts in an unreasonable or arbitrary manner, or =
without=20
reference to guiding rules and principles. Id. Because =
the record=20
does not reflect that Davis requested, and the trial court did not =
make,=20
findings of fact and conclusions of law, we will affirm the trial =
court's=20
judgment if it is correct on any legal theory supported by the =
evidence.=20
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. =
1990). B. Analysis =
Here, Davis complains that she did =
not receive=20
postcard notice from the trial court clerk that her motion to =
reinstate=20
had been overruled by operation of law. Rules 165a and 306a =
require that=20
notice of the signing of a final judgment or order to be sent to =
the=20
parties. Davis seems=20
to contend that the trial court orally suggested during the =
hearing on the=20
motion to reinstate that the case would be reinstated upon the =
completion=20
of Davis's deposition. There is not a transcript of the hearing in =
the=20
record. However, even if the trial court made a such a =
pronouncement, "[a]=20
trial court's oral pronouncement . . . reinstating a cause is not =
an=20
acceptable substitute for the written order required by rule." =
Emerald=20
Oaks Hotel/Conference Ctr. v. Zardenetta, 776 S.W.2d 577, 578 =
(Tex.1989) (construing Rule 165a(3) to require motion to reinstate =
be=20
"decided by a signed written order"). Moreover, as Cost Plus =
contends,=20
Davis is charged with knowing that a case may be reinstated only =
by=20
written order and that when the trial court did not issue a =
written order=20
granting reinstatement within 105 days after the dismissal, the =
motion was=20
overruled as a matter of law. See Tex. R. Civ. P.=20
165a(3). Davis failed to diligently seek =
a ruling=20
on her motion to reinstate, and she failed to appeal either the =
dismissal=20
of the underlying action or the denial of the motion to reinstate. =
See=20
WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. =
App.--Dallas=20
2006, pet. denied) (reviewing appeal of dismissal for want of=20
prosecution); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 4 =
(Tex.=20
App.--Houston [14th Dist.] 2006, pet. denied) (reviewing appeal of =
trial=20
court's denial of motion to reinstate). As Cost Plus contends, a =
party who=20
fails to timely avail itself of available legal remedies is not =
entitled=20
to relief by bill of review. Wembley v. Herrera, 11 =
S.W.3d 924,=20
927 (Tex. 1999); Hernandez v. Koch Mach. Co., 16 S.W.3d =
48, 57=20
(Tex. App.--Houston [1st Dist.] 2000, pet. denied). A bill of =
review is=20
unavailable when, as here, a claimant has timely filed a motion to =
reinstate. See Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. =
1980).=20
Furthermore, the Supreme Court of Texas has explained that "[i]f a =
motion=20
to reinstate, motion for new trial, or direct appeal is available, =
it is=20
hard to imagine any case in which failure to pursue one of them =
would not=20
be negligence." See Gold v. Gold, 145 S.W.3d 212, 214 =
(Tex.=20
2004). We conclude that relief by bill =
of review=20
is not available in this case because Davis failed to exercise due =
diligence in availing herself of all adequate legal remedies. =
See=20
Gold, 145 S.W.3d at 214; Rizk, 603 S.W.2d at 775. =
Having=20
determined that Davis is not entitled to relief by bill of review, =
we hold=20
that the trial court did not abuse its discretion by dismissing =
Davis's=20
petition for bill of review. Accordingly, we overrule =
Davis's sole=20
issue.CONCLUSION We affirm the judgment of the =
trial=20
court.
Laura Carter Higley Justice Panel consists of Justices =
Nuchia, Keyes,=20
and Higley.=20
1. - - '=20
2. " " " " " - "=20