law-bill-of-review | bill of review denied | default judgment | motion for new trial | restricted appeal |
appellate deadline for direct appeal | plenary power |
BILL OF REVIEW CASE LAW SNIPPETS
WHAT IS A BILL OF REVIEW: NATURE OF REMEDY AND PURPOSE
A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no
longer appealable or subject to a motion for new trial. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).
ELEMENTS OF BILL OF REVIEW
A bill of review plaintiff must ordinarily plead and prove (1) a meritorious defense to the underlying cause of
action, (2) which he was prevented from asserting by the fraud, accident or wrongful act of the opposing party
or official mistake, (3) unmixed with any fault or negligence on his own part. Id. "These grounds are narrow
and strictly construed because the need for equitable relief must be counter balanced against the fundamental
importance of achieving finality of judgments and the elimination of endless litigation.” Gone v. Gone, 993 S.W.
2d 845, 847 (Tex.App.- Houston [14th Dist.] 1999, pet. denied); accord King Ranch, Inc. v. Chapman, 118 S.W.
3d 742, 751 (Tex. 2003).
Afri-Carib Enterprised, Inc. v. Mabon Limited. (Tex.App.- Houston [14th Dist.] Mar. 31, 2009)(Yates)
(default judgment, bill of review, no proper notice of trial setting, suspended attorney)
REVERSED AND REMANDED: Opinion by Justice Brock Yates
ORDER GRANTING BILL OF REVIEW (VACATING UNDERLYING JUDGMENT) IS
INTERLOCUTORY
A bill of review that sets aside a prior judgment but does not dispose of all the issues in the case on the merits
is interlocutory. Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006). Generally, appeals may be taken only
from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may
be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.
2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).
DUE DILIGENCE IN PURSUING AVAILABLE REMEDIES
In its first issue, Afri-Carib contends that the trial court erred in granting Mabon’s bill of review because Mabon did not establish
all the elements. A bill of review plaintiff typically must prove a meritorious defense, wrongful conduct of the opposing party, and
its own diligence and lack of negligence. See Caldwell, 154 S.W.3d at 96. However, when, as here, a bill of review plaintiff has
no notice, he is relieved of the burden of proving these first two elements. Id.; Abou-Trabi v. Best Indus. Uniform Supply, Inc., No.
14-02-01000-CV, 2003 WL 22252876, at *3 (Tex.App.- Houston [14th Dist.] Oct. 2, 2003, no pet.) (mem. op.). The Texas
Supreme Court has held that although a bill of review plaintiff without notice must still prove the third element - that it was not
negligent - lack of service of process conclusively establishes the lack of negligence element. See Caldwell, 154 S.W.3d at 97;
see also Abou-Trabi, 2003 WL 22252876, at *4. The trial court followed Caldwell in finding that Mabon’s lack of notice of the trial
setting conclusively established its lack of negligence. Afri-Carib argues that this rule does not apply in this case. We agree.
A bill of review plaintiff’s obligation of non-negligence includes a duty of diligence in not allowing a default judgment to be taken
against him. See Abou-Trabi, 2003 WL 22252876, at *4 (stating that a bill of review plaintiff must prove "an absence of
negligence in allowing the trial court to render the default judgment against him”); accord Winrock Houston Assocs. Ltd. P-ship
v. Bergstrom, 879 S.W.2d 144, 149 (Tex.App.- Houston [14th Dist.] 1994, no writ); see also Caldwell, 154 S.W.3d at 97 ("An
individual who is not served with process cannot be at fault or negligent in allowing a default judgment to be rendered.”
(emphasis added)). In Caldwell, the bill of review plaintiff alleged he had no notice of the suit whatsoever. Caldwell, 154 S.W.3d
at 97-98. Clearly, a defendant having no notice of a suit against him cannot be negligent in allowing a default judgment to be
taken. Id. at 97. However, a party who has been properly served or appeared in a lawsuit must be diligent. Ross v. Nat’l Ctr. for
the Employment of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006) ("[D]iligence is required from properly served parties or those
who have appeared.”). "A party’s failure to make reasonable inquiries regarding his pending litigation is failure to exercise
diligence, and without the showing of such diligence, a bill of review will fail since the appellant will not be able to prove his non-
negligence in allowing the judgment against him to be rendered and to become final.” Abou-Trabi, 2003 WL 22252876, at *4;
see also Ponsart v. Citicorp Vendor Fin., Inc., 89 S.W.3d 285, 290 (Tex.App.- Texarkana 2002, no pet.) ("Even if [plaintiff] did not
actually know the court had entered a default judgment against him, he should have been aware that failing to answer [the]
complaint would result in a default judgment.”); Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 59 (Tex.App.- Houston [1st Dist.]
2000, pet. denied) ("It is generally held that a party to a lawsuit is charged with notice that the suit may be dismissed for want of
prosecution when there is inaction for a long period of time.”). Even if a party does not know of a trial setting, if he appeared in
the case but was not diligent in monitoring the case status, he could be ineligible for a bill of review. See Abou-Trabi, 2003 WL
22252876, at *4.[3] Therefore, the trial court erred in concluding that Mabon’s lack of negligence was established in this case a
matter of law.
Afri-Carib further argues that Mabon’s lack of diligence was established as a matter of law. It points to evidence of
correspondence between Mabon and its attorney showing no mention of the lawsuit in the two years prior to entry of the default
judgment, even though they corresponded about a separate business venture. However, Mabon did not put on its evidence of
diligence, including other methods of communication such as phone calls, because of the theory that evidence of diligence was
not required in this case, and the trial court made no finding regarding actual diligence.
We sustain Afri-Carib’s first issue to the extent it argues that the trial court erred in finding that Mabon established diligence as a
matter of law by showing lack of notice. We overrule Afri-Carib’s first issue to the extent it argues that Mabon’s lack of diligence
was established as a matter of law. We reverse the trial court’s judgment granting Mabon’s bill of review and remand for further
proceedings.
MORE CASE LAW SNIPPETS ON REQUIREMENTS FOR BILL-OF-REVIEW RELIEF
A bill of review is an equitable action brought by a party to a previous suit seeking to set aside a judgment
which is no longer appealable or subject to a motion for new trial. See King Ranch, Inc. v. Chapman, 118 S.W.
3d 742, 751 (Tex. 2003). A bill of review is proper where a party has exercised due diligence to prosecute all
adequate legal remedies against a former judgment and, at the time the bill of review is filed, there remains no
adequate legal remedy available through no fault of the proponent. Baker v. Goldsmith, 582 S.W.2d 404, 408
(Tex. 1979). A bill of review may not be used as an additional remedy after one has made a timely, but
unsuccessful appeal. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980).
Because of the fundamental importance of the finality of judgments, bills of review are examined closely and
the grounds upon which a bill of review can be obtained are narrow and restricted. Alexander v. Hagedorn,
226 S.W.2d 996, 998 (Tex. 1950). To successfully challenge a judgment by bill of review, the petitioner must
prove: (1) a meritorious defense to the cause of action; (2) that petitioner was prevented from making the
defense by the fraud, accident, or wrongful act of the opposite party; and (3) that the failure to make the
defense was unmixed with any fault or negligence of the petitioner. King Ranch, Inc., 118 S.W.3d at 751 (citing
Alexander, 226 S.W.2d at 998).Kachar v. DFPS (Tex.App.- Houston [1st Dist.] Jan. 8, 2009)(Hanks) (vexatious
litigant statute)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-08-00074-CV Karen Kachar v. Department of Family and Protective Services
Appeal from 257th District Court of Harris County
Trial Court Judge: The Honorable Judy L. Warne
CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE