Opinion
No. 14-03-00807-CV
Opinion filed July 20, 2004.
On Appeal from the County Court at Law Number 3, Fort Bend County, Texas, Trial Court Cause No. 18483B.
Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
This is an appeal from the trial court's denial of appellant Saramma Thottumkal's petition for a bill of review to set aside a summary judgment granted against her in favor of appellee Larry P. McDougal. In three points of error, Thottumkal complains that the trial court erred in denying a hearing on her petition for bill of review and erred in dismissing her petition. We affirm.
McDougal, an attorney, filed a suit for collection against Thottumkal arising from services provided to her son. The trial court held a summary judgment hearing in which Thottumkal was not present, although her husband attempted to act on her behalf. At the summary judgment hearing, the trial court granted McDougal's motion and told Thottumkal's husband that she should hire an attorney. She did so, and about two months later, her counsel filed a motion for reconsideration and to set aside the summary judgment. The written judgment was issued a few days later. Though the trial court's records show that notice of the judgment was sent to Thottumkal, Thottumkal claims to have had no notice of it until she was served with a petition for writ of garnishment over a year later. She then hired another attorney, who contested the garnishment and filed a petition for bill of review to set aside the summary judgment. The trial court granted McDougal's motion to dismiss Thottumkal's petition for bill of review, and Thottumkal now appeals that decision.
The parties provided the record of the bill of review proceedings but not the underlying proceedings. However, we accept as true the facts regarding those proceedings as stated in the briefs. TEX. R. APP. P. 38.1(f).
The motion was deemed filed on the date of the judgment. TEX. R. CIV. P. 306c.
A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Its purpose is to cure manifest injustice. French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967). If legal remedies were available but ignored, whether by Thottumkal or her attorney, relief by equitable bill of review is not available. Nguyen, 93 S.W.3d at 293.
To prevail on a bill of review, the party seeking relief must ordinarily plead and prove (1) a meritorious defense to the cause of action that supports the judgment, (2) that she was prevented from making by the fraud, accident, or wrongful act by the opposing party, (3) unmixed with any fault or negligence of her own. Caldwell, 975 S.W.2d at 537; Nguyen, 93 S.W.3d at 293. A party's failure to make reasonable inquiries regarding pending litigation is a failure to exercise due diligence, and without the showing of such diligence, a bill of review will fail since a party seeking relief will not be able to prove lack of negligence in allowing the judgment to become final. In re A.L.H.C., 49 S.W.3d 911, 916 (Tex. App.-Dallas 2001, pet. denied); Conrad v. Orellana, 661 S.W.2d 309, 313 (Tex. App.-Corpus Christi 1983, no writ). This applies even if the failure results from the negligence or mistake of a party's attorney. Nguyen, 93 S.W.3d at 293.
The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). In reviewing the grant or denial of a bill of review, every presumption is indulged in favor of the court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of judicial discretion. Nguyen, 93 S.W.3d at 293.
In her second point of error, Thottumkal complains that the trial court erred in dismissing her petition for bill of review. The trial court determined that Thottumkal, either personally or through her first attorney, was negligent in failing to use due diligence in pursuing legal remedies to challenge the summary judgment against her. Assuming Thottumkal's motion for reconsideration and to set aside the summary judgment operated as a motion for new trial, it must have been ruled on within 75 days or it was overruled by operation of law. TEX. R. CIV. P. 329b. Thottumkal claims that her first attorney tried four times in the six weeks after filing her motion to have the motion set for hearing but the court coordinator failed to return her calls to schedule it. Even if those facts are true, that does not establish due diligence. After her last attempt to contact the court coordinator to set a hearing, Thottumkal and her attorney apparently ignored the matter for nearly a year until Thottumkal was served with a garnishment notice. Thottumkal knew that the trial court had ruled against her, as evidenced by the motion for reconsideration she filed, and it was her burden to pursue all legal remedies available to challenge the judgment, including filing a notice of appeal. Even if, contrary to the court's records, Thottumkal did not receive notice of the actual judgment, she had a duty to make reasonable inquiries regarding her litigation. In re A.L.H.C., 49 S.W.3d at 916; Conrad, 661 S.W.2d at 313. The record shows that no inquiries were made from the final attempt to set a hearing until after notice of the garnishment nearly a year later. The trial court did not abuse its discretion in determining that appellant failed to exercise due diligence in pursuing all legal remedies available to her. We overrule Thottumkal's second point of error.
The court coordinator testified at the bill of review hearing that she and Thottumkal's attorney exchanged several telephone messages but that she did not recall actually speaking with the attorney or receiving a request to set a hearing. The trial court judge noted that the court file shows no attempt to set a hearing.
The Rules provide some protection to parties having no notice of a judgment, but they also presume some diligence in inquiring about a case within a reasonable time. See TEX. R. CIV. P. 306a (lack of notice of judgment or other appealable order extends trial court's plenary power by no more than 90 days); TEX. R. APP. P. 4.2 (lack of notice of judgment or other appealable order extends deadlines under appellate rules by no more than 90 days).
In her third point of error, Thottumkal asserts that the trial court erred in not vacating the judgment because McDougal's evidence was insufficient and fraudulent. This is but another way of asserting that she had a meritorious defense. Since we have already determined that Thottumkal was not entitled to a bill of review because of her negligence, we need not reach this point.
In her first point of error, Thottumkal complains that the trial court erred "in not allowing" her a bill of review hearing before ruling on McDougal's motion to dismiss. The face of the record, however, belies this claim. Thottumkal was given a full and fair opportunity, both through briefing and in the hearing, to persuade the trial court of her position. Thottumkal complains that the trial court judge told the parties how he intended to rule before she presented her case, which "amounts to no hearing at all." We disagree. At the hearing, the trial court accepted oral argument from counsel in addition to testimony from four witnesses. That the trial court judge was not persuaded to change his mind afterwards does not vitiate the hearing she was given. We overrule Thottumkal's first point of error.
Having determined that the trial court did not err in denying Thottumkal's petition for a bill of review, we affirm the trial court's judgment.