Opinion issued January 10, =
2008
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO. 01-06-00404-CV
____________
HOWARD VANZANDT WILLIAMS,=20
Appellant
V.
TEXAS DEPARTMENT OF CRIMINAL =
JUSTICE=E2=80=94INSTITUTIONAL=20
DIVISION, Appellee
On Appeal from the 23rd District=20
Court
Brazoria County, Texas
Trial Court Cause No. =
37699
MEMORANDUM=20
OPINION
<=
/SPAN>Howard=20
Vanzandt Williams appeals the trial court=E2=80=99s order denying =
his bill of=20
review. We affirm.
Factual and=20
Procedural Background
=
Howard=20
Vanzandt Williams, an inmate of the Texas Department of Criminal=20
Justice-Institutional Division =
(=E2=80=9CTDCJ=E2=80=93ID=E2=80=9D), sued Dale Denault, a=20
corrections officer employed by TDCJ=E2=80=93ID, and =
TDCJ=E2=80=93ID. The trial court=20
dismissed the suit in its entirety, and Williams appealed to the =
14th=20
Court of Appeals. The 14th Court of =
Appeals=20
affirmed the dismissal as to Denault only and reversed it as to =
claims=20
against TDCJ=E2=80=93ID. See Williams v. Denault, No. =
14-00-00889-CV, 2001=20
WL 1249311, *5 (Tex. App.=E2=80=94Houston [14th Dist.] October 18, =
2001, no pet.)=20
(memo op.).
=
Concluding that =
Williams had=20
stated a claim against TDCJ=E2=80=93ID subject to the Texas Tort =
Claims Act, but=20
that Williams had not served TDCJ=E2=80=93ID nor had =
TDCJ=E2=80=93ID answered the=20
allegations, the 14th Court held that =E2=80=9Cthe trial court =
abused its=20
discretion in ordering that the case was dismissed with prejudice =
and in=20
its entirety as frivolous.=E2=80=9D Id. =
at *4. In so holding, =
the court=20
determined that the trial =
court=E2=80=99s order=20
dismissing the entire =
action with =
prejudice =E2=80=9Ccannot =
be said to operate=20
as a dismissal on the merits of a defendant that has not yet been =
served=20
or answered on the record.=E2=80=9D Id. at *4.
=
The=20
opinion from the 14th Court of Appeals issued on October 18, 2001. =
On=20
March 12, 2003, Denault=E2=80=99s attorney, a representative from =
the Attorney=20
General=E2=80=99s office, filed an amicus motion to dismiss the =
claims against=20
TDCJ=E2=80=93ID for want of prosecution and as frivolous because =
the statute of=20
limitations had run. An order of dismissal was signed in July and =
again in=20
December of 2003. The orders are identical, except that the =
December order=20
includes the language, =E2=80=9CAll relief not specifically =
granted is=20
denied.=E2=80=9D
=
In=20
April of 2006, Williams filed a petition for a bill of review =
seeking to=20
set aside the court=E2=80=99s judgment dismissing his claims =
against TDCJ=E2=80=93ID. That=20
petition does not contain a certificate of service. As best we can =
determine, Williams alleged that TDCJ=E2=80=93ID waived service. =
The trial court=20
denied the petition for bill of review without a=20
hearing.
Bill of =
Review
=
A=20
bill of review is an =
independent=20
equitable action brought by a party to a former action seeking to =
set=20
aside a judgment that is no longer appealable or subject to a =
motion for=20
new trial. Baker v.=20
Goldsmith,=20
582 S.W.2d 404, 406 (Tex. 1979). The grounds upon =
which a bill of review can be =
obtained are=20
narrow because the procedure conflicts with the fundamental policy =
that=20
judgments must become final at some point. Transworld Fin. =
Servs. Corp.=20
v. Briscoe,=20
722 S.W.2d 407, 407 (Tex. 1987); Alexander v.=20
Hagedorn,=20
148 Tex. 565, 569, 226 S.W.2d 996, 998 (1950). The mere=20
fact that an injustice has been done is not sufficient to warrant =
granting=20
a bill of review.=20
Alexander, 148 Tex. at 569, =
226 S.W.2d=20
at 998.
=
A=20
party =
who has=20
participated in the trial court proceedings must plead and prove =
three=20
elements to obtain a bill of review: (1) a =
meritorious=20
ground of appeal exists; (2) which the party was prevented from =
presenting=20
in a motion for new trial or ordinary appeal by the fraud, =
accident, or=20
wrongful act of the opposing party, or official mistake or =
misinformation;=20
(3) unmixed with the fault or negligence of the petitioner. =
McDaniel v.=20
Hale, 893=20
S.W.2d 652, 660, 662=E2=80=9363 (Tex. App.=E2=80=94Amarillo 1994, =
writ denied);=20
see=20
Petro-Chem.=20
Transp., Inc. v. Carroll, 514 S.W.2d 240, =
245=E2=80=9346=20
(Tex. 1974).=20
A =
meritorious=20
ground of appeal is one that, had it been presented to the =
appellate court=20
as designed, might, and probably would, have caused the judgment =
to be=20
reversed. Petro-Chem., 514 S.W.2d at=20
245.
=
In our review, we =
must=20
indulge every presumption in favor of the trial court=E2=80=99s =
ruling. Nguyen=20
v. Intertex, Inc., 93 S.W.3d 288, =
293 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 2002, no pet.). We will not =
disturb that=20
ruling unless the petitioner is able to show affirmatively that =
there was=20
an abuse of 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. =
Id. Finally, because =
we have no=20
findings of fact or conclusions of law entered in this case, we =
must affirm the trial =
court=E2=80=99s=20
ruling on any theory finding =
support in=20
the record. See id. =
When the inquiry =
on the bill of review concerns =
questions of=20
law, such as whether an appellant presented prima facie proof of a =
meritorious=20
ground of appeal, we review the trial court=E2=80=99s decision =
de novo.=20
See=20
BMC =
Software=20
Belg., N.V. v. Marchand, 83 S.W.3d 789, =
794 (Tex.=20
2002).
=
As=20
a pretrial matter, the plaintiff must present prima facie proof to =
support=20
the alleged meritorious claim. Caldwell v.=20
Barnes, 154=20
S.W.3d 93, 97 (Tex. 2004); Baker, 582 S.W.2d at =
408;=20
Martin v.=20
Martin, 840=20
S.W.2d 586, 591 (Tex. App.=E2=80=94Tyler 1992, writ denied). =
If the trial court =
concludes=20
that a prima facie meritorious ground of appeal has not been =
shown, it may=20
dismiss the case without conducting a trial. Beck v.=20
Beck, 771=20
S.W.2d 141, 142 (Tex. 1989); Baker, 582 S.W.2d at =
409.=20
Prima =
facie=20
proof may consist of documents, admissions, and affidavits, along =
with=20
other evidence that the trial court may receive. Baker, 582 =
S.W.2d=20
at 409. Williams presented no proof to support the allegations =
contained=20
in his petition for bill of review. See Caldwell, 154 =
S.W.3d at 97.=20
Thus, the trial=20
court did not err if it concluded that Williams failed to =
establish a=20
meritorious claim in his bill of review.
Conclusion
<=
/SPAN>We=20
affirm the order of the trial court.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Tim=20
Taft
Justice
Panel consists of =
Justices=20
Taft, Hanks, and=20
Higley. |