Binnie v. Coyle
| Decision Date | 23 November 2010 |
| Docket Number | NO. 13-09-00227-CV,13-09-00227-CV |
| Parties | CHERYL WEATHERLY BINNIE, Appellant. v. CANDACE WEATHERLY COYLE, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 267th District Court
of DeWitt County, Texas.
MEMORANDUM OPINIONBefore Justices Rodriguez, Garza, and Benavides
Appellant, Cheryl Weatherly Binnie, appeals the trial court's order granting summary judgment in a bill of review proceeding in favor of appellee, Candace Weatherly Coyle. Binnie filed the underlying bill of review proceeding arguing that she was prevented from filing post-judgment motions and an appeal from a judgment against her because she did not receive timely notice of the judgment. By one issue, Binnie argues that the summary judgment evidence raised an issue of material fact on whether: (1) her failure to file amotion for new trial or to advance an appeal was caused by Coyle's fraud, accident, or wrongful act or by an official mistake; and (2) her failure was unmixed with any negligence of her own. We affirm.1
Binnie and Coyle are sisters. Their father, who died while the proceedings below were pending, was Gerald Craft Weatherly. In May 2003, Coyle sued Binnie in DeWitt County, Texas, alleging intentional interference with a real estate sales contract, conversion, and intentional interference with inheritance rights.2 Also in May 2003, Binnie and Gerald sued Coyle in Dallas County, Texas, alleging causes of action for theft, conversion, unjust enrichment, fraud, embezzlement, abuse of process, and breach of fiduciary duty.3 In September 2003, Gerald created a trust called the Gerald Craft Weatherly Trust (the "Trust"), and in July 2004, the Trust was substituted as a plaintiff in Gerald's place in the Dallas County case. On September 20, 2004, the Dallas County District Court transferred Binnie and the Trust's suit against Coyle to DeWitt County, where it was consolidated with Coyle's suit against Binnie. On February 13, 2006, the trial court realigned the parties so that Binnie and the Trust were the plaintiffs/counter-defendants and Coyle was the defendant/counter-plaintiff.
On March 15, 2007, the case was tried to a jury. It is undisputed that at the time oftrial, the Trust was represented by an attorney named Melissa Ray. Binnie appeared and testified at trial. The jury found that Binnie intentionally interfered with Coyle's inheritance rights and with a real estate contract belonging to Coyle. The trial court signed a judgment on November 5, 2007, awarding Coyle actual damages, punitive damages, prejudgment interest, and court costs totaling $484,252.44. The judgment also decreed that Binnie and the Trust take nothing on their claims against Coyle. Binnie did not file postjudgment motions or an appeal from the November 5, 2007 judgment.
On July 28, 2008, Binnie filed a bill of review proceeding in the DeWitt County District Court. Binnie asserted that she had not received notice of the judgment until June 11, 2008, after the trial court's plenary power expired and after the deadline to file an appeal. Binnie alleged that she was prevented from pursuing postjudgment motions and from seeking appellate relief because the district clerk failed to mail the notice of entry of judgment to her. Alternatively, Binnie alleged that Coyle's counsel, Paul Romano, had failed to serve her with some of Coyle's pleadings despite knowing that Binnie was not represented by counsel. Binnie argued that if Romano had properly served Binnie, as he was required to do with a pro se litigant, she would have been put on notice that she was not represented by Ray in her individual capacity. Binnie claimed she was not negligent in failing to file postjudgment motions or an appeal from the judgment because she reasonably believed that Ray also represented her in her individual capacity, but Ray never informed her that the judgment had been signed. Binnie further alleged that she had meritorious grounds for postjudgment motions or for an appeal.
Coyle moved for summary judgment on traditional and no-evidence grounds. Coyle asserted that Binnie was not entitled to a bill of review because there was no evidence that (1) Binnie's failure to file a motion for new trial or to advance and appeal was caused by Coyle's fraud, accident, or wrongful act or by an official mistake; and (2) the failure was unmixed with any fault or negligence by Binnie. Coyle's traditional motion for summary judgment argued that she had conclusively established (1) that she had committed no fraud, accident, or wrongful act that caused Binnie's failure to advance postjudgment motions or an appeal; and (2) there was no official mistake. Binnie filed a response and attached evidence, discussed below. On January 22, 2009, the trial court granted Coyle's motion for summary without stating the grounds for its ruling. Binnie filed a motion for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c). This appeal ensued.
When a trial court grants summary judgment in a bill of review proceeding, we review the ruling using the ordinary summary judgment standards of review. See Boaz v. Boaz, 221 S.W.3d 126, 130 (Tex. App.-Houston [1st Dist.] 2006, no pet.); see also Barowski v. Gabriel, Nos. 04-08-00800-CV, 04-08-00801-CV, 2010 WL 3030874, at *2 (Tex. App.-San Antonio Aug. 4, 2010, no pet.) (mem. op.); Chemject Int'l, Inc. v. Sw. Bell Tel. Co., Nos. 13-04-567-CV, 13-06-032-CV, 2007 WL 177651, at *5 (Tex. App.-Corpus Christi Jan. 25, 2007, pet. denied) (mem. op.). A no-evidence summary judgment is equivalent to a pretrial directed verdict, and we apply the same legal sufficiency standard on review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 772 (Tex. App.-Corpus Christi 2003, no pet.) (op. on reh'g). Once an appropriate motion for no-evidence summary judgment is filed, the burden of producing evidence is entirely on the non-movant; the movant has no burden to attach any evidence to the motion. Tex. R. Civ. P. 166a(i). We may not consider any evidence presented by the movant unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Newkumet v. Allen, 230 S.W.3d 518, 521 (Tex. App.-Eastland 2007, no pet.).
To defeat a no-evidence motion for summary judgment, the non-movant must merely produce a scintilla of probative evidence to raise a genuine issue of material fact. Ortega, 97 S.W.3d at 772. "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion of a fact.'" Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla exists when the evidence "'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Id. (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In determining whether the non-movant has met its burden, we review the evidence in the light most favorable to the non-movant, crediting such evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).4
Binnie argues that she produced evidence demonstrating that her failure to file postjudgment motions or an appeal was unmixed with any negligence of her own. We disagree.
To prevail on a bill of review when the party has participated in the trial, the bill-of-review plaintiff must show: (1) her failure to file postjudgment motions or failure to advance an appeal; (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 on the bill-of-review plaintiff's part; and (4) a meritorious ground of appeal. See San Patricio County v. Nueces County, 214 S.W.3d 536, 544 (Tex. App.-Corpus Christi 2006), rev'd in part on other grounds, 246 S.W.2d 651 (Tex. 2008) (citing Petro-Chem. Transport v. Carroll, 514 S.W.2d 240, 244-46 (Tex. 1974)). It is undisputed that Binnie failed to file postjudgment motions or an appeal. Likewise, Coyle did not argue below that Binnie could not establish a meritorious ground for an appeal.
The no-evidence motion challenged elements (2) and (3). With respect to the third element, an allegation that the bill-of-review plaintiff's own attorney was negligent is not sufficient to support a bill of review. See Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987). Rather, we must impute the actions of a bill-of-review plaintiff's attorney to the bill-of-review plaintiff. See In re Nat'l Unity Ins. Co., 963 S.W.2d 876, 878-79 (Tex. App.-San Antonio 1998, orig. proceeding); Nichols v. Jack Eckerd Corp., 908 S.W.2d 5, 8 (Tex. App.-Houston [1st Dist.] 1995, no writ).
Binnie argues that although she was not represented by counsel at the time of the judgment, she reasonably believed that Ray was her attorney and was pursuing postjudgment and appellate relief on her behalf.5 Binnie presented the following evidence to show her lack of negligence in failing to file postjudgment motions or an appeal: (1) herown affidavit; (2) her husband's affidavit; (3) Ray's deposition testimony; (4) motions and orders filed in the underlying proceeding relating to the withdrawal of her prior attorneys; (5) the affidavit of and notices sent by Tabeth Gardner, the District Clerk of DeWitt County, Texas; and (6) an affidavit from her former attorney, Mark Allen.
The documents Binnie submitted demonstrate that initially, she and the Trust were represented by Allen. According to Allen, in late 2004 or early 2005, Ray began subleasing an office in the same office building as Allen. Allen hired Ray to work on several of his cases. In early 20...
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