Affirmed and Memorandum Opinion filed March 29,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-05-00876-CV
____________
CYNTHIA=20
NITZSCHE AND STEPHEN NITZSCHE, =
Appellants
V.
TEAMS OF=20
TEXAS, =
Appellee
On Appeal from the =
164th District Court
Harris County, =
Texas
Trial Court Cause =
No. 03-49027A
M E M O R=20
A N D U M O P I N I O N
This case=20
comes to us as an appeal from the trial court=3Ds denial=20
of a bill of review. Appellants, Cynthia and Stephen =
Nitzsche, sued=20
multiple defendants, including appellee, TEAMS of Texas, for =
damages=20
arising out of an insurance claim for mold and water damage. =
TEAMS=20
successfully sought summary judgment and severance. The =
Nitzsches=20
did not receive notice of the judgment, and therefore did not =
timely=20
pursue an appeal. The trial court denied relief on a bill of =
review,=20
which sought to re-start the appellate timetable so that the =
Nitzsches=20
could seek appellate review of the grant of summary =
judgment. We=20
have reviewed the Nitzsches=3D =
issues,=20
and because we determine that the Nitzsches do not have a =
meritorious=20
ground of appeal, hold that the trial court did not abuse its =
discretion=20
in denying the Nitzsches=3D =
bill of=20
review. We therefore affirm the trial court=3Ds=20
judgment.
Factual=20
and Procedural Background
Given the=20
procedural posture of this case, we take the facts in the light =
most=20
favorable to the Nitzsches. Farmers Insurance Exchange hired =
TEAMS=20
to perform certain tests on the Nitzsches=3D =
home. The Nitzsches believed that TEAMS inadequately =
performed its=20
tests and evaluations, and therefore sued TEAMS, among others, for =
violations of the Texas Deceptive Tract Practices Act =
(ADTPA@). =20
TEAMS moved for summary judgment contending that the Nitzsches =
could not=20
maintain suit against it because it owed no duty to the =
Nitzsches. =20
The trial court granted TEAMS=3Ds summary=20
judgment.
The=20
Nitzsches then filed a motion to reconsider and TEAMS filed a =
motion to=20
sever. The trial court granted TEAMS=3Ds motion=20
to sever on October 13, 2004, and did not grant the motion to=20
reconsider. The clerk of the court failed to mail notice of =
the=20
judgment to the Nitzsches, which caused them to miss the deadline =
for=20
timely filing notice of appeal. It was not until March 2005 =
that the=20
Nitzsches finally learned of the trial court=3Ds=20
ruling.
The=20
Nitzsches sought a bill of review from the trial court. The =
trial=20
court held a hearing, and took the matter under advisement. =
The=20
trial court then denied the bill of review. The Nitzsches =
sought=20
review from this court, asking us to grant the bill of review, =
reverse the=20
trial court=3Ds grant of=20
summary judgment, and remand the case for trial. However, =
because we=20
conclude that the Nitzsches cannot satisfy the first prong =
of the=20
test for receiving a bill of reviewCnamely,=20
establishing a meritorious ground for appealCwe affirm=20
the ruling of the trial court.
Analysis
I. =20
Standard of Review
A bill of=20
review is an equitable proceeding brought by a party to a former =
action=20
seeking to set aside a prior judgment that is no longer subject to =
challenge by a motion for new trial or appeal. Nguyen v.=20
Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.CHouston=20
[14th Dist.] 2002, no pet.). To set aside a =
judgmentChere,=20
summary judgmentCutilizing=20
a bill of review, the petitioner ordinarily must plead and prove =
(1) a=20
meritorious defense to the cause of action alleged to support the=20
judgment, (2) that he was prevented from making due to the fraud, =
accident=20
or wrongful act of his opponent, (3) unmixed with any fault or =
negligence=20
of his own. Id. In the context of a lost =
appeal,=20
however, the party need not show a meritorious defense, but rather =
a=20
meritorious ground of appeal, such that A>the=20
judgment might, and probably would, be reversed.=3D@ =
McRoberts v. Ryals, 863 S.W.2d 450, 455 n.1 (Tex. 1993) =
(Enoch, J.=20
dissenting) (citing Petro-Chemical Transp. v. Carroll, 514 =
S.W.2d=20
240, 245 (Tex. 1974)).
Official=20
mistake, or a failure to serve the party seeking the bill with =
proper=20
notice, will relieve the petitioner from establishing the second =
prong of=20
the test. See Perdue v. Patten Corp., 142 S.W.3d 596, =
604B05 (Tex.=20
App.CAustin=20
2004, no pet.). Receiving notice too late also relieves a =
party from=20
establishing due diligence in pursuing legal remedies against the=20
judgment, which ordinarily must be proven to seek a bill of =
review. =20
Id. at 607.
The=20
grounds upon which we may grant relief upon a bill of review are =
narrow=20
because the procedure conflicts with the fundamental policy that =
judgments=20
must become final at some point. Nguyen, 93 S.W.3d at =
293. In our review, we must indulge every presumption in =
favor of=20
the trial court=3Ds=20
ruling. Id. We will not disturb that ruling =
unless the=20
petitioner is able to show affirmatively that there was an abuse =
of=20
judicial discretion. Id. A trial court abuses =
its=20
discretion only if it acts in an unreasonable or arbitrary manner, =
or=20
without reference to any guiding rules and principles. =20
Id. Finally, because we have no findings of fact or=20
conclusions of law entered in this case, we must affirm the trial=20
court=3Ds ruling=20
on any theory finding support in the record. See =
id. =20
II. =20
Official Mistake
Neither=20
party disputes that the only evidence at trial indicated that the =
clerk of=20
the court failed to mail any notice of the trial court=3Ds=20
judgment. Additionally, the only evidence presented at trial =
indicated that the first opportunity for the Nitzsches to have =
received=20
actual notice of the judgment was too late to timely file notice =
of=20
appeal. Therefore, the only evidence adduced showed official =
mistake. We must now determine if the Nitzsches are able to =
satisfy=20
the requirements for a bill of review.
III. =20
Texas Law Does Not Permit the Nitzsches to Sue =
TEAMS
The=20
Nitzsches are unable to satisfy the first prong of the test for =
receiving=20
a bill of review: the requirement of showing a meritorious ground =
of=20
appeal. Texas law does not permit the Nitzsches to maintain =
suit=20
against TEAMS, and, therefore, the Nitzsches have no valid basis =
upon=20
which to appeal the grant of summary judgment granted in =
TEAMS=3Ds=20
favor.
In=20
Dagley v. Haag Engineering Co., we held that a contractor =
hired by=20
an insurance company owes no duty to an insured, and also has no =
special=20
relationship with an insured so as to trigger liability under the=20
DTPA. 18 S.W.3d 787, 791B92 (Tex.=20
App.CHouston=20
[14th Dist.] 2000, no pet.). That decision relied on, and =
was in=20
accord with, other decisions of Texas appellate courts, and the =
federal=20
Fifth Circuit Court of Appeals applying Texas law. =
See Dear=20
v. Scottsdale Ins. Co., 947 S.W.2d 908, 916B17 (Tex.=20
App.CDallas=20
1997, writ denied) (opinion on rehearing) (analogizing to =
Natividad v.=20
Alexis, Inc., 875 S.W.2d 695 (Tex. 1994)) overruled on =
other=20
grounds, Apex Towing Co. v. Tolin, 41 S.W.3d 118, 123 =
(Tex.=20
2001); Muniz v. State Farm Lloyds, 974 S.W.2d 229, =
235B37 (Tex.=20
App.CSan=20
Antonio 1998, no pet.); Bui v. St. Paul Mercury Ins. Co., =
981 F.2d=20
209, 210 (5th Cir. 1993) (Texas law). These cases stand for =
the=20
proposition that a party, such as the Nitzsches, cannot maintain =
suit for=20
negligence or DTPA violations against a contractor hired by an =
insurance=20
company, to perform adjusting or testing services on behalf of the =
insurance company. We are bound by this =
precedent.
The=20
Nitzsches make no attempt to distinguish Dagley. =
Their only=20
argument is that they need not prove a direct contractual =
relationship=20
because they are a third-party beneficiary. However, as our=20
precedent clearly holds, the lack of privity of contract or =
special=20
relationship completely defeats the Nitzsches=3D =
claims=20
against TEAMS. However, it also follows from our=20
third-party-beneficiary precedent that the Nitzsches are not =
third-party=20
beneficiaries who can pursue a claim against TEAMS. Rather, =
TEAMS=20
owes a duty to, and has a contractual relationship with, =
Farmers. =20
In Texas,=20
there is a presumption that parties enter into contracts for =
themselves,=20
unless it clearly appears that they intended a third party to =
benefit from=20
the contract. MCI Telecommunications Corp. v. Texas =
Utilities=20
Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). We will not =
create=20
third-party-beneficiary status on our own or by implication; =
instead, the=20
intent to create that status must be clearly and fully spelled out =
in the=20
contract. See id. Simply receiving some =
incidental=20
benefit from the contract is not enough, the contracting parties =
must have=20
entered into the contract so as to secure a direct benefit for the =
third=20
party as either a donee or a creditor beneficiary. =
Id. =20
The Nitzsches cannot satisfy this test and have presented no proof =
to=20
overcome the presumption against third-party-beneficiary=20
status.
We do not=20
have a copy of the contract between Farmers and TEAMS, and thus =
lack the=20
instrument with which we must begin our inquiry. See =
id. at=20
650B51=20
(stating that our analysis requires us to interpret the contract =
and=20
interpret it de novo). With the evidence we do have, there =
is=20
nothing to indicate that the contract between TEAMS and Farmers =
was=20
entered into for the Nitzsches=3D =
benefit. Instead, the record =
indicates=20
that Farmers hired TEAMS for its own benefitCnamely, to evaluate =
the claim=20
for purposes of determining Farmers=3D liability. As =
a result,=20
we can determine only that the Nitzsches did not overcome the =
above=20
presumption and, in line with precedent, hold that they were not=20
third-party beneficiaries who could maintain suit against=20
TEAMS. As=20
our case law requires, Farmers retains liability for the actions =
of its=20
contractor, and the Nitzsches must seek any damages from Farmers =
for any=20
alleged TEAMS misconduct. See Dear, 947 S.W.2d =
at 917=20
(citing Natividad, 875 S.W.2d at 698).
Conclusion
Having=20
determined that appellants cannot satisfy the first prong of the =
test to=20
receive relief under a bill of review, we affirm the judgment of =
the trial=20
court.
/s/ =20
John S. Anderson
Justice
Judgment=20
rendered and Memorandum Opinion filed March 29, 2007.
Panel=20
consists of Justices Anderson, Hudson, and=20
Guzman. |