Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Sunday, November 20, 2011

Challenging a Default Judgment by equitable Bill of Review

Attacking a default judgment by Bill of Review petition when the time for a regular or restricted appeal has passed: Under what circumstances may the trial court set aside a default judgment by bill of review?  
A bill of review is an equitable proceeding in which a party seeks to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. See Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam); Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407-08 (Tex. 1987).

To set aside a judgment by bill of review, “petitioner must ordinarily plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own.” Transworld, 722 S.W.2d at 408. The residual four-year statute of limitations applies to bills of review. See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West 2008); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998). Although a bill of review is an equitable proceeding, a perceived injustice alone is not sufficient to justify relief by bill of review. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam).

“Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party.” Id.

A bill of review petitioner claiming non-service is relieved of showing a meritorious defense that was prevented by the fraud, accident, or wrongful act of his opponent, or a court official in the exercise of official duties. Caldwell, 154 S.W.3d at 96-97.
We review an order granting or denying a bill of review under an abuse of discretion standard. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.-Dallas 2008, pet. denied). A trial court abuses its discretion if it reaches a decision that is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Id. at 840. A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.-Dallas 2004, no pet.). The trial court does not abuse its discretion as to factual issues if there is some evidence of a substantive and probative character to support the decision. In re C.G.,
261 S.W.3d 842, 848 (Tex. App.-Dallas 2008, no pet.). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for reversal. In re L.A.F., 270 S.W.3d 735, 738 (Tex. App.-Dallas 2008, pet. denied). Sufficiency of the evidence is, however, a relevant factor to the appellate court's review. Id. In our review, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and erred in application of that discretion. In re C.G., 261 S.W.3d at 848. When, as here, there are no findings of fact or conclusions of law, and none were requested, we assume the trial court made all necessary findings to support its judgment. See In re J.H., 264 S.W.3d 919, 924 (Tex. App.-Dallas 2008, no pet.). In our review of the record, we determine whether some evidence supports the judgment and implied findings and disregard entirely contradictory evidence. See id. (citing Niskar, 136 S.W.3d at 753-54). The judgment will be upheld on any legal theory supported in the evidence. Id.

SOURCE: DALLAS COURT OF APPEALS - 05-10-00363-CV – 11/10/11