Successful Bill of Review entails retrial of claim(s) on which underlying judgment was based

   
BILL OF REVIEW DEFINED - PROCEDURE EXPLAINED

“A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment, which is no longer appealable or subject to motion for new trial.” Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The judgment may be set aside “for sufficient cause.” Tex. R. Civ. P. 329b(f); Baker, 582 S.W.2d at 406. The complainant files a petition “to invoke the equitable powers of the court.” Baker, 582 S.W.2d at 408; In re K.M.S., 68 S.W.3d 61, 66 (Tex. App.—Dallas 2001), pet. denied, 91 S.W.3d 331 (Tex. 2002) (per curiam).

ELEMENTS OF PROOF FOR BILL OF REVIEW TO VACATE PRIOR JUDGMENT

Generally, the bill of review complainant must prove “‘(1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.’” Baker, 582 S.W.2d at 406–07 (quoting Alexander v. Hagedorn, 148 Tex. 565, 568–69, 226 S.W.2d 996, 998 (1950)).

EFFECT OF TRIAL COURT'S GRANT OF THE RELIEF SOUGHT IN A BILL-OF- REVIEW PROCEEDING 
 
If the complainant establishes prima facie proof of a meritorious defense, the court conducts a trial at which the merits of the underlying issue are effectively relitigated. Caldwell v. Barnes, 154 S.W.3d 93, 98 (Tex. 2004); Baker, 582 S.W.2d at 409. During the bill of review trial, “the parties . . . revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case.” Caldwell, 154 S.W.3d at 98; accord Baker, 582 S.W.2d at 407–08. The bill of review defendant—the original plaintiff—must prove, and may offer evidence to support, “his original cause of action.” Meece v. Moerbe, 631 S.W.2d 729, 729 (Tex. 1982) (citing Baker, 582 S.W.2d at 409). At the end of the proceeding, if the fact-finder decides the complainant (the original defendant) has proved his case to set aside the judgment, the trial court may vacate the prior judgment. See Baker, 582 S.W.2d at 409. And if the bill of review defendant (the plaintiff in the original proceeding) proves his original case, the trial court may “substitute a new judgment which properly adjudicates the entire controversy.” In re J.B.A., 127 S.W.3d 850, 851 (Tex. App.—Fort Worth 2004, no pet.); cf. Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995) (per curiam) (citing Tesoro Petrol. v. Smith, 796 S.W.2d 705, 705 (Tex. 1990) (per curiam)).

SOURCE: 04-09-00040-CV (8/31/09) (San Antonio Court of Appeals)

EQUITABLE RELIEF: What is a Bill of Review in Texas Courts?

  
A Bill of Review is not exactly a substantive cause of action, but nevertheless a means by which a court may grant EQUITABLE RELIEF (setting aside a default judgment that is no longer appealable). The Bill of Review, and its elements, thus fit within the scope of this blawg. 

THE NATURE OF A BILL OF REVIEW AND REQUIREMENTS FOR A SUCCESSFUL PETITION IN A BILL-OF-REVIEW SUIT: 
 
A bill of review is an independent equitable proceeding brought by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a challenge by a motion for new trial. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam).
 
ELEMENTS OF BILL OF REVIEW

To prevail, a bill of review plaintiff must prove: (1) a meritorious defense to the cause of action upon which the judgment is based, (2) which he or she was prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on his or her own part. Caldwell, 154 S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979).
 
Additionally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). This due diligence requirement is distinct from the three bill of review elements and must be established before a complainant is entitled to seek bill of review relief. Narvaez, 127 S.W.3d at 321. “The inquiry traditionally used to determine whether a party has been diligent is whether the litigant and his counsel used such care as that which prudent and careful men would ordinarily use in their own cases of equal importance.” In the Interest of A.L.H.C., 49 S.W.3d 911, 916 (Tex. App.—Dallas 2001, pet. denied). 
 
SOURCE: 04-09-00198-CV (9/23/09) (San Antonio Court of Appeals) (trial court's order granting bill of review reversed because petitioner did not exercise available remedies, i.e., direct appeal).