Billy B., Inc. v. Board of Trustees of Galveston Wharves, 01-85-0733-CV

Citation717 S.W.2d 156
Decision Date21 August 1986
Docket NumberNo. 01-85-0733-CV,01-85-0733-CV
PartiesBILLY B., INC., Appellant, v. BOARD OF TRUSTEES OF the GALVESTON WHARVES; Galveston Party Boats, Inc.; Gulf Boats Co.; Boat Services of Galveston, Inc.; Clifford L. Acosta; James R. Schroeder; and E.W. Schroeder, Appellees. (1st Dist.)
CourtCourt of Appeals of Texas

John H. Helm, Martin, Down, Herring & Helm, Houston, for appellant.

Michael L. Wilson, Rider & Wilson, Galveston, Michael B. Hughes, Otto D. Hewitt Before EVANS, C.J., and WARREN and DUGGAN, JJ.

McLeod, Alexander, Powel & Apffel, Galveston, for appellees.

OPINION

DUGGAN, Justice.

This is an appeal from the dismissal of a Bill of Review.

The appellant, Billy B., Inc. ("Billy B."), filed suit to enjoin the appellees, Galveston Party Boats, Inc., Gulf Boats Co., Boat Services of Galveston, Inc., Clifford L. Acosta, James R. Schroeder, and E.W. Schroeder (hereinafter collectively referred to as "Galveston Boats"), from using Pier 19, and to enjoin the appellee, Board of Trustees of the Galveston Wharves ("Galveston Wharves"), from leasing dock space at Pier 19 to the appellees, Galveston Boats. Billy B. alleges that Section IV of the Galveston City Charter prohibits the berthing of any vessels at Pier 19 except for "party boats," shrimp boats, and fishing boats.

Billy B. asserts that Galveston Boats is operating "crew boat activities" (which involves transporting men and supplies to and from offshore rigs and larger vessels) on their boats M/V Thunderchief and M/V Native Dancer, in violation of the Charter.

Billy B. is not entitled to use Pier 19 because it is not involved in the party boat, shrimping, or fishing business. It complains that it cannot effectively compete with Galveston Boats because the cost of operations from Pier 19 is less expensive than at other piers, and that it is losing sales of services and income because of the direct competition from these illegally operated vessels.

Appellees, Galveston Boats and Galveston Wharves, filed their separate answers and motions to dismiss. Both answers asserted that prior litigation between themselves resulted in a declaratory judgment that the M/V Thunderchief, owned by Galveston Boats, is a "party boat" within the meaning of the city charter. Both motions to dismiss asserted that Billy B. has no standing to sue, that the issues it presented were decided in prior litigation, and that Billy B. was collaterally estopped from asserting the same issues. Galveston Wharves also filed a motion for summary judgment, to which Billy B. responded. A hearing was set on this motion for January 17, 1985.

A hearing was held on both Galveston Wharves' and Galveston Boats' motions to dismiss on December 3, 1984, and the court took the matter under advisement. By letter of December 4, 1984, counsel for Galveston Wharves forwarded to the court a proposed order of dismissal, with copies to all parties.

By a letter to all parties, dated December 14, 1984, the trial court advised them of its decision to sustain Galveston Wharves' motion to dismiss because it found "that the plaintiff lacks standing to bring this lawsuit," and stated that the form of order submitted by Galveston Wharves' attorney had been signed on December 13, 1984. Billy B. did not request any relief from this ruling.

Galveston Wharves' motion for summary judgment remained set for hearing on January 17, 1985, a time more than 30 days after the court's entry of the dismissal order. Billy B. alleges that only when its counsel reported in court for this hearing did it learn that the form of motion to dismiss submitted by Galveston Wharves' attorney had been altered before the court signed and entered it. The alteration consisted of the longhand interlineation of five words, added at the request of counsel for Galveston Boats in an ex parte conversation with the judge. As thereafter entered, the concluding paragraph of the order stated:

It is therefore ORDERED, ADJUDGED AND DECREED that this cause be and is hereby dismissed with prejudice to the refiling of the same as to all party defendants. All costs of court are to be paid by the plaintiff. (Emphasis added).

The emphasized words quoted above were the longhand interlineation.

Billy B. filed a petition for a bill of review alleging, among other matters, that it was prejudiced by the additional words in the order; that it had not been informed of the additional language; that it had the impression that the case had not been totally disposed of; and that its counsel was thereby deceived "into not filing a notice of appeal of the case until it was fully disposed of by signing an order of dismissal dismissing the other defendants in the lawsuit." Billy B.'s petition for bill of review was heard and denied on April 30, 1985. A hearing on Billy B.'s "Application for Rehearing of Petition for Bill of Review" was conducted on July 23, 1985, and was denied.

In two points of error, Billy B. asserts that the court erred: (1) in denying its petition for bill of review; and (2) in dismissing its suit for lack of standing.

The appellees urge that Billy B.'s point of error one should be overruled because its bill of review pleadings are not properly verified. McCann v. Ward County, 423 S.W.2d 339 (Tex.Civ.App.--El Paso 1967, writ ref'd n.r.e.). However, the appellees never excepted to this procedural defect in their answers to Billy B.'s petition for bill of review, and never brought the matter to the attention of the court; accordingly, the appellees' objection is waived. Tex.R.Civ.P. 90.

A bill of review is an equitable action brought to set aside a judgment. To prevail upon a bill of review, the complainant must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment (or, as in our case, a meritorious claim or cause of action); (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 v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979).

Bills of review are not favored by the courts because the finality of judgments is of fundamental importance. Thus, bills of review seeking relief from otherwise final judgments are to be analyzed with "extreme jealousy." Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984).

Billy B.'s petition for bill of review was filed to set aside the order of dismissal as it applied to Galveston Boats, i.e., all parties other than Galveston Wharves, whose dismissal Billy B. did not oppose. To prevail, Billy B. was required to plead and prove that it had a meritorious defense to the dismissal of its suit against Galveston Boats; that it was prevented from making this defense by some fraud, accident, or wrongful act of...

To continue reading

Request your trial
16 cases
  • Henry v. Cox
    • United States
    • Court of Appeals of Texas
    • December 22, 2015
    ...WCID No. 1 v. Tex. Nat. Res. Conservation Comm'n, 980 S.W.2d 511, 515–16 (Tex.App.–Austin 1998, pet. denied); Billy B., Inc. v. Bd. of Trustees, 717 S.W.2d 156, 158 (Tex.App.–Houston [1st Dist.] 1986, no writ). A plaintiff has the burden of alleging facts that affirmatively demonstrate a co......
  • Murphy v. American Rice, Inc., No. 01-03-01357-CV (Tex. App. 3/9/2007)
    • United States
    • Court of Appeals of Texas
    • March 9, 2007
    ...MARY KAY KANE, FED. PRAC. & PROC.: CIVIL § 1559, at 441 (2d ed. 1990) and Nootsie, Ltd., 925 S.W.2d at 661); Billy B., Inc. v. Bd. of Trs. of Galveston Wharves, 717 S.W.2d 156, 158 (Tex. App.-Houston [1st Dist.] 1986, no writ) ("[A] person has standing to sue if: (1) he has sustained, or is......
  • Ex parte Stiles
    • United States
    • Court of Appeals of Texas
    • October 8, 1997
    ...error in a missing or defective verification in the plaintiff's petition which is not objected to by the defendant. Billy B., Inc. v. Bd. of Trustees, 717 S.W.2d 156, 158 (Tex.App.--Houston [1st Dist.] 1986, no writ); Parker v. Parker, 593 S.W.2d 857, 859 (Tex.Civ.App.--Houston [1st Dist.] ......
  • Precision Sheet Metal Mfg. Co., Inc. v. Yates
    • United States
    • Court of Appeals of Texas
    • July 9, 1990
    ...or (5) he is an appropriate party to assert the public's interest in the matter, as well as his own. Billy B., Inc. v. Board of Trustees of the Galveston Wharves, 717 S.W.2d 156, 158 (Tex.App.--Houston [1st Dist.] 1986, no writ); City of Bells v. Greater Texoma Utility Auth., 744 S.W.2d 636......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT