law-bill-of-review-denied | Houston Bill of Review cases | restricted appeal | motion for new trial | post-judgment
motions | no-answer default judgments | post-answer default judgment |
BILL OF REVIEW DENIED: FAILURE TO EXERCISE DILIGENCE IN SEEKING
AVAILABLE REMEDIES | FAILURE TO PURSUE DIRECT APPEAL
Under their first issue, the Langstons argue that the summary-judgment evidence raises a genuine issue of
material fact as to each of the essential elements that the Langstons needed to prove to obtain relief under an
equitable bill of review. The Langstons were served with process in the property-tax collection suit. They had
notice of the trial setting. They were aware of the trial court's rendition of the Judgment. The Langstons timely
filed a motion for new trial; however, they did not pursue a direct appeal of the Judgment. Though the
Langstons allege that an opposing attorney made a fraudulent representation that prevented them from attending
the trial in the tax-collection suit, the Langstons do not allege that they were prevented from pursuing a
direct appeal from the Judgment by any fraud, accident, or wrongful act of the Taxing Authorities.
Under these circumstances, the requirement that the Langstons be free from fault or negligence is negated as a
matter of law, and the trial court properly granted summary judgment in favor of the Taxing Authorities. See
French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) (affirming summary judgment in favor of bill-of-review-action
defendants under these circumstances); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 295-96 (Tex. App.- Houston
[14th Dist.] 2002, no pet.) (same). Accordingly, we overrule the Langstons' first issue.
Langston v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost)
(bill of review denied, tax suit, failure to avail oneself of available remedies, i.e. direct appeal precludes bill-of-
review relief, claim of fundamental error as exception to requirement to preserve error rejected)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Boyce
14-08-00063-CV C. Dale Langston and Sue Langston v. City of Houston, Harris County, Pasadena Independent
School District and San Jacinto Community College
Appeal from 55th District Court of Harris County
Under their second issue, the Langstons point out that, to be eligible for bill-of-review relief, they were not
required to file a restricted appeal. At oral argument, the Langstons argued that the Supreme Court of Texas, in
Gold v. Gold, changed the law so that parties in the position of the Langstons no longer need to pursue a direct
appeal. See Gold v. Gold, 145 S.W.3d 212, 213-14 (Tex. 2004) (per curiam). We disagree. The Gold court
expressly reaffirmed a line of cases providing that relief by a bill of review is available “only if a party has
exercised due diligence in pursuing all adequate legal remedies . . . [and not] [i]f legal remedies were available
but ignored." Id. at 214 (quoting Wembley Inv. Co. v. Herrerra, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam)).
However, the Gold court concluded that this line of cases does not apply to the failure to file a restricted appeal.
See id. at 213-14. Because the Langstons filed a timely motion for new trial, they were unable to pursue a
restricted appeal. See Tex. R. App. P. 30. Although the Langstons did not have to file a restricted appeal to be
eligible for an equitable bill of review, the Gold court did not change the requirement that parties in the Langstons'
situation have to pursue a direct appeal to be eligible for an equitable bill of review. See Gold, 145 S.W.3d at 213-
14. Accordingly, we overrule the Langstons' second issue.
OTHER BILL OF REVIEW CASES FROM HOUSTON COURTS OF APPEALS
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)
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
Davis v. Smith (Tex.App.- Houston [1st Dist.] Apr. 5, 2007)(Higley)
[bill of review denied, not diligent]
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Nuchia, Keyes and Higley
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 Cagle)
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