Opinion
14-23-00268-CV
02-22-2024
SHANNON MARK DOUTHIT, Appellant v. JOHN WEST, TRAVIS TURNER, ROBERT HERRERA, PAUL B. WILDER, TAROLYN B. AMERSON, AND KENNETH S. GILBERT, Appellees
On Appeal from the 506th District Court Grimes County, Texas Trial Court Cause No. 034705.
Panel consists of Bourliot, Zimmerer, and Spain, Justices.
MEMORANDUM OPINION
Jerry Zimmerer, Justice.
Appellant, Shannon Mark Douthit, appeals the trial court's order denying his petition for bill of review. In three issues Douthit challenges the trial court's (1) earlier order dismissing his suit pursuant to Chapter 14 of the Civil Practice and Remedies Code; (2) failure to rule on discovery motions; and (3) denial of Douthit's petition for bill of review. We affirm the trial court's order denying the petition for bill of review.
Background
On January 17, 2019, Douthit, proceeding pro se and informa pauperis, filed suit against John West, Travis Turner, Robert Herrera, Paul B. Wilder, Tarolyn B. Amerson, and Kenneth S. Gilbert requesting damages and injunctive and declaratory relief seeking restoration of good time credit and return of his legal materials. Asserting six claims, Douthit alleged violations of his civil rights under chapter 42, sections 1983, 1985, and 1986 of the United States Code, and article 1, sections 3 and 19 of the Texas Constitution. See 42 U.S.C. §§ 1983, 1985, & 1986; Tex. Const. art. 1, §§ 3, 19.
Douthit alleged his legal materials and commissary items were confiscated by appellee, Correctional Officer Kenneth Gilbert. Douthit's commissary items were returned, but Douthit alleged his legal materials were not returned. Douthit argued that his materials were confiscated as retaliation for the exercise of his right to access the courts. Douthit further alleged that appellees conspired to harass him and retaliate against him for exercising his right to access the courts.
On June 3, 2019, Douthit filed a motion for discovery pursuant to Rule of Civil Procedure 190.4(a). The record does not reflect a ruling on Douthit's motion. On November 26, 2019, five of the six defendants filed a motion to dismiss Douthit's suit because Douthit failed to comply with Chapter 14 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 14.003 (requiring dismissal of inmate litigation if certain prerequisites are not met, or the claim is frivolous or malicious). On December 9, 2019, the trial court dismissed Douthit's suit and Douthit timely appealed. On August 3, 2021, this court dismissed Douthit's appeal as interlocutory because the trial court's dismissal order did not unequivocally express an intent to dispose of all claims and all parties. Douthit v. West, No. 14-20-00012-CV, 2021 WL 3359178, at *1 (Tex. App.-Houston [14th Dist.] Aug. 3, 2021, no pet.) (mem. op.).
On August 23, 2021, after dismissal of Douthit's appeal, all six defendants filed an amended motion to dismiss. On September 28, 2021, the trial court signed a final judgment dismissing Douthit's suit and disposing of all parties and all issues. On October 18, 2021, Douthit timely filed a motion for rehearing in which he alleged the trial court lacked plenary jurisdiction to sign a final judgment. On November 22, 2021, Douthit filed a request for findings of fact and conclusions of law. Douthit did not file a notice of appeal from the trial court's September 28, 2021 judgment.
On April 19, 2022, Douthit filed a petition for bill of review in which he reiterated his claim that the trial court lacked jurisdiction to render the September 28, 2021 judgment. Douthit further alleged he had a meritorious claim because he complied with Chapter 14 of the Civil Practice and Remedies Code. On March 31, 2023, the trial court signed an order denying Douthit's petition for bill of review "because in the event a party permits a judgment to become final by neglecting to appeal timely the party is precluded from proceeding on a petition for bill of review unless the complainant shows a good excuse for failure to exhaust adequate legal remedies." The court found that Douthit failed to provide a good excuse for neglecting to timely file an appeal. Douthit timely appealed the trial court's order denying his petition for bill of review.
Analysis
I. This court lacks jurisdiction to address Douthit's issues challenging the September 28, 2021 final judgment.
In Douthit's first two issues he challenges the trial court's September 28, 2021 final judgment and the trial court's failure to rule on discovery motions filed prior to the court's judgment.
The deadline to file notice of appeal from the trial court's final judgment was December 27, 2021. See Tex. R. App. P. 26.1(a) (When appellant has filed a timely post-judgment motion, the notice of appeal must be filed within 90 days after the date the judgment is signed.). Douthit filed a timely motion for new trial but did not timely file a notice of appeal or a timely motion to extend time to file notice of appeal. See Tex. R. App. P. 26.3 (providing a 15-day grace period for filing a motion to extend time). We therefore lack jurisdiction to consider Douthit's issues challenging the trial court's final judgment. We overrule Douthit's first issue.
We similarly lack jurisdiction to consider Douthit's challenge to the trial court's failure to rule on his discovery motion. Such a complaint would have been cognizable on appeal from the final judgment, but not on appeal from the denial of a petition for bill of review. See Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, 603 S.W.3d 385, 390 (Tex. 2020) ("When a trial court renders a final judgment, the court's interlocutory orders merge into the judgment and may be challenged by appealing that judgment."). We overrule Douthit's second issue.
II. The trial court did not err in denying Douthit's petition for bill of review.
To obtain an equitable bill of review, a petitioner must generally plead and prove the following three elements: (1) the petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was prevented from making that claim or defense because of official mistake or because of the opposing party's fraud, accident, or wrongful conduct; and (3) the petitioner's inability to make the claim or defense was unmixed with any fault or negligence on the petitioner's own part. See Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015). When a petitioner fails to timely appeal a judgment or appeal the denial of a motion for new trial or its overruling by operation of law-as Douthit did here-that failure precludes an equitable bill of review because it demonstrates that the petitioner did not exercise the appropriate amount of diligence in the underlying proceeding. See French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) ("So there is insufficient cause here for relief by bill of review. Respondent permitted the judgment to become final by his failure to invoke the right of appeal."); see also Gill v. Vordokas, 656 S.W.3d 398, 401 (Tex. App.-Houston [14th Dist.] 2022, no pet.).
As stated in the trial court's order, the court denied the petition for bill of review because Douthit failed to exhaust all legal remedies and failed to present a good excuse for such failure unmixed with his own negligence. In his petition for bill of review, Douthit did not address why he was prevented from timely appealing the trial court's judgment. Rather, Douthit focused his complaint on the trial court's error in finding he did not comply with Chapter 14. When the petitioner's allegations are legally insufficient, relief by bill of review is inappropriate. See Brooks v. Associates Fin. Services Corp., 892 S.W.2d 91, 93 (Tex. App.-Houston [14th Dist.] 1994, no writ). Douthit failed to diligently seek a ruling on his motion for new trial, and he failed to appeal the final judgment. We conclude the trial court did not err in denying Douthit's petition for bill of review and overrule his third issue.
Conclusion
Having overruled Douthit's three issues, we affirm the trial court's order denying petition for bill of review.