Alvizo v. Walker
| Decision Date | 03 May 2021 |
| Docket Number | No. 06-20-00080-CV,06-20-00080-CV |
| Citation | 625 S.W.3d 177 |
| Court | Texas Court of Appeals |
| Parties | Jane Ann Walker ALVIZO, Appellant v. Andy WALKER, Appellee |
Sarah L. Kaminar, James R. Rodgers, Paris, for Appellant.
Scott Pelley, Jacob Pelley, for Appellee.
Before Morriss, C.J., Burgess and Stevens, JJ.
In 2018, Andy Walker obtained a declaratory judgment (the 2018 Judgment) against his sister, Jane Ann Walker Alvizo, dividing several tracts of real property they had inherited from their parents. Among the properties divided between the parties was an approximately 51-acre tract awarded to Alvizo that shared a common boundary with an approximately 21.75-acre tract1 awarded to Walker. A subsequent survey of the common boundary line between the two contiguous tracts in accordance with the metes and bounds description of the boundary contained in the 2018 Judgment revealed that an irrigation well, irrigation equipment, and some blueberry plants that Walker thought were located on his tract were, in fact, located on Alvizo's tract. Since the time to appeal the 2018 Judgment had expired, Walker filed this bill of review action in which he asked the trial court for a declaration that the tract awarded to him in the 2018 Judgment included the well and irrigation equipment. Walker filed a motion for summary judgment, which the trial court granted based on mutual mistake, and modified the 2018 Judgment based on an "equitable division survey" of the common boundary so that Walker's tract would include the irrigation well, irrigation equipment, and blueberry plants.
On appeal, Alvizo complains that the trial court erred in granting summary judgment because Walker did not establish, as a matter of law, (1) that he had exercised due diligence in pursuing his legal remedies, (2) a meritorious ground of appeal, (3) that he was entitled to a bill of review because of mutual mistake of the parties, and (4) that he was without negligence or fault. Because we find that Walker did not establish his right to a bill of review, we reverse the trial court's summary judgment and remand this cause to the trial court for further proceedings.
Walker filed a motion for a traditional summary judgment and alleged that, although many of the tracts in the 2018 Judgment were hotly contested, the parties always agreed that Walker was to receive the 21.75-acre tract and its appurtenances, that Alvizo was to receive the 51-acre tract, and that they would use the metes and bounds description in a 1980 deed to identify the 21.75-acre tract. Walker also alleged that it was intended by the parties that the discrepancy between the acreage was to be made up by the presence of improvements and appurtenances on the smaller tract and that the parties presumed that the 21.75-acre tract included the family blueberry patch, a well, and accompanying irrigation equipment. Walker also alleged that, when the 21.75-acre tract was surveyed following the metes and bounds description contained in the 2018 Judgment, it contained less than 21.75 acres, and part of the irrigation equipment, the blueberry patch, and the related irrigation well were "cut off." Consequently, he alleged, the reliance on the metes and bounds description in the 1980 deed was a mutual mistake because it did not include these cut off improvements.
In support of his allegations, Walker provided the following summary judgment evidence:
Alvizo filed a response.9 In support of her response, she filed the affidavit of Jane Alvizo,10 with the following attached and incorporated exhibits:
In addition, Alvizo attached a copy of a letter brief filed by Walker in the prior proceeding. The trial court granted Walker's motion for summary judgment based on the mutual mistake of the parties in reliance on the 1980 survey.
"The grant of a trial court's summary judgment is subject to de novo review by appellate courts." Brown v. CitiMortgage, Inc. , No. 06-14-00105-CV, 2015 WL 2437519, at *2 (Tex. App.—Texarkana May 22, 2015, no pet.) (mem. op.) (citing Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003) ). "In making the required review, we deem as true all evidence which is favorable to the nonmovant, we indulge every reasonable inference to be drawn from the evidence, and we resolve any doubts in the nonmovant's favor." Id. (citing Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005) ). We may only affirm a summary judgment on grounds that the movant preserved for review. Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d 623, 626 (Tex. 1996). Thus, "[a] motion must stand or fall on the grounds expressly presented in the motion." McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993).
"To be entitled to traditional summary judgment, a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law." Brown , 2015 WL 2437519, at *2 (citing TEX. R. CIV. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009) ). "Once the movant produces evidence entitling it to summary judgment, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact." Id. (citing Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996) ).
A bill of review is an independent equitable proceeding to set aside a judgment in a prior suit that is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith , 582 S.W.2d 404, 406 (Tex. 1979). Relief by a bill of review "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." Wembley Inv. Co. v. Herrera , 11 S.W.3d 924, 927 (Tex. 1999) (per curiam) (citing Tice v. City of Pasadena , 767 S.W.2d 700, 702 (Tex. 1989) ; Petro-Chem. Transp., Inc. v. Carroll , 514 S.W.2d 240, 243 (Tex. 1974) ). "If legal remedies were available but ignored, relief by equitable bill of review is unavailable." Id. (citing Caldwell v. Barnes , 975 S.W.2d 535, 537 (Tex. 1998) ).
In a case such as this, where the party fully participated in the prior suit, to obtain relief by bill of review, the party is generally "required to allege and prove" "(1) a failure to file a motion for new trial" or to appeal the prior judgment "(2) caused by the fraud, accident, or wrongful act of the opposing party or by an official mistake" "(3) unmixed with any fault or negligence of [its] own and (4) a meritorious ground of appeal." McDaniel v. Hale , 893 S.W.2d 652, 663 (Tex....
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