Caldwell v. Barnes, No. 97-0161

CourtSupreme Court of Texas
Writing for the CourtHECHT
Citation975 S.W.2d 535,41 TEX. SUP. CT . J. 780
Docket NumberNo. 97-0161
Decision Date15 October 1998
Parties41 Tex. Sup. Ct. J. 780 Harold CALDWELL, Petitioner, v. Robert F. BARNES, Respondent.

Page 535

975 S.W.2d 535
41 Tex. Sup. Ct. J. 780
Harold CALDWELL, Petitioner,
v.
Robert F. BARNES, Respondent.
No. 97-0161.
Supreme Court of Texas.
Argued Feb. 3, 1998.
Decided May 8, 1998.
Rehearing Overruled Oct. 15, 1998.

Page 536

Gus E. Pappas, Houston, for Petitioner.

Thomas O. Matlock, Kelly K. McKinnis, McAllen, for Respondent.

HECHT, Justice, delivered the opinion of the Court.

Petitioner seeks to set aside a default judgment by bill of review. The court of appeals affirmed summary judgment for respondent. 941 S.W.2d 182. The principal issues we address are first, whether exhaustion of legal remedies not only in Texas but in other jurisdictions is a prerequisite to relief by bill of review, and second, whether petitioner's action is barred by laches even though it was filed within the statutory limitations period. We reverse and remand to the district court for further proceedings.

I

Robert Barnes sued Harold Caldwell and others in Hidalgo County in April 1989, asserting various causes of action arising from business transactions in Texas. Barnes hired DeWayne Perdew, a private process server, to serve Caldwell in Colorado. The return of service filed in the case reflects that Perdew hand-delivered process to Caldwell in Jefferson County, Colorado on July 30, 1989. However, Caldwell swears he was never served, and Perdew has since averred by affidavit that he did not serve Caldwell as the return stated and could not have done so because he was in Wyoming at the time with his former girlfriend. An affidavit by Perdew's former girlfriend corroborates Perdew's retraction, as do affidavits from five persons in various other lawsuits whom Perdew said he served on July 30, 1989, but who state that they, too, were never served. When Caldwell did not answer, Barnes obtained a default judgment against him for $15,500,000, which was severed from the main action and made final on December 6, 1989. The record does not reflect that the clerk sent notice of the default judgment to Caldwell as required by Rule 306a(3), TEX.R. CIV. P., and Caldwell swears he never received any such notice.

Caldwell states that he first learned of the judgment twenty-two months later, in September 1991, when Barnes domesticated it in Colorado pursuant to the Uniform Enforcement of Foreign Judgments Act. COLO.REV.STAT. §§ 13-53-101 to 13-53-108. By then, of course, the time had expired for Caldwell to move for new trial, TEX.R. CIV. P. 306a(4), 329b (120 days from the date the judgment is signed absent notice or knowledge of judgment), appeal directly, TEX.R.APP. P. 26.1(a) (formerly TEX.R.APP. P. 41(a)) (thirty days after the judgment is signed if no motion for new trial is filed, or ninety days if a motion for new trial is filed), or to appeal by writ of error, TEX.R.APP. P. 26.1(c) (formerly TEX.R.APP. P. 45(d)) (six months from the date the judgment is signed). His only remaining recourse under Texas law was a bill of review, but Caldwell did not file one immediately. Nor did he attempt to challenge the judgment based on Colorado law, which permits a domesticated judgment to be collaterally attacked if it is based on fraud, is void, or has been discharged. Marworth, Inc. v. McGuire, 810 P.2d 653, 655 (Colo.1991) (citing COLO. R. CIV. P. 60(b)). The parties dispute whether a challenge to the domesticated judgment based on Colorado law could have succeeded.

Nine months later, in June 1992, Barnes filed an enforcement action in Colorado. Caldwell answered, but his answer did not include an assertion that he was never served

Page 537

in the Texas proceeding. Caldwell states that he raised the issue at an early hearing in the action, but that the court refused to allow the return of service in the Texas file to be thus impeached. Barnes has not disputed this assertion.

Caldwell states that in May 1993 he located Perdew, who confessed that he had not and could not have personally served Caldwell. On May 3, 1993, Caldwell filed a motion in the Colorado court of domestication collaterally attacking the domesticated judgment. Barnes responded by filing a declaratory judgment action in Texas seeking to have the original default judgment declared valid. Caldwell answered and moved for a new trial in the original action. The parties and the district court treated this proceeding as a bill of review. Both parties moved for summary judgment. Caldwell asserted that his and Perdew's affidavits, along with the corroborating affidavits mentioned above, established that he was never served in the original Texas proceeding, and therefore that the judgment should be set aside. Barnes asserted that Caldwell was not entitled to relief because he had not exhausted his legal remedies in Colorado and he had waited too long to file his bill of review. The district court granted summary judgment for Barnes. The court of appeals affirmed, holding that under Colorado law Caldwell had legal remedies against enforcement of the Texas judgment, that he was required to exhaust those remedies before bringing a bill of review, and that he did not do so. 941 S.W.2d at 188-189. The court also held that Caldwell's bill of review was barred by laches because his delay in challenging the default judgment prejudiced Caldwell, who had incurred some $275,000 in legal fees trying to enforce the judgment in Colorado. Id. at 189-190.

We granted Caldwell's application for writ of error to review the court of appeals' holdings. 41 TEX. SUP.CT. J. 96 (Nov. 13, 1997).

II

A bill of review is an equitable proceeding brought by a...

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249 practice notes
  • Light v. Whittington (In re Whittington), No. 13-11036
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 19, 2014
    ...run absent 'extraordinary circumstances' that would work a 'grave injustice.'" Fox, 2012 WL 2979053, at *3 (quoting Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998)). The summary judgment record does not reflect any risk of "grave injustice" as a result of Plaintiffs' delays. The laches ......
  • Light v. Whittington (In re Whittington), Bankruptcy No. 13–11036.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 19, 2014
    ...‘extraordinary 530 B.R. 407circumstances' that would work a ‘grave injustice.’ ” Fox, 2012 WL 2979053, at *3 (quoting Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998) ). The summary judgment record does not reflect any risk of “grave injustice” as a result of Plaintiffs' delays. The lache......
  • Light v. Whittington (In re Whittington), Bankruptcy No. 13-11036.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 20, 2014
    ...[530 B.R. 407]circumstances' that would work a ‘grave injustice.’ ” Fox, 2012 WL 2979053, at *3 (quoting Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998)). The summary judgment record does not reflect any risk of “grave injustice” as a result of Plaintiffs' delays. The laches defense is m......
  • In re E.R., No. 11–0282.
    • United States
    • Supreme Court of Texas
    • August 31, 2012
    ...31.See Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795, 798 (Tex.2006) (per curiam); see also Caldwell v. Barnes, 975 S.W.2d 535, 538–39 (Tex.1998) (noting that “[l]aches should not bar an action on which limitations has not run unless allowing the action ‘would work a grav......
  • Request a trial to view additional results
246 cases
  • Light v. Whittington (In re Whittington), No. 13-11036
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 19, 2014
    ...absent 'extraordinary circumstances' that would work a 'grave injustice.'" Fox, 2012 WL 2979053, at *3 (quoting Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998)). The summary judgment record does not reflect any risk of "grave injustice" as a result of Plaintiffs' delays. ......
  • Light v. Whittington (In re Whittington), Bankruptcy No. 13–11036.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 19, 2014
    ...‘extraordinary 530 B.R. 407circumstances' that would work a ‘grave injustice.’ ” Fox, 2012 WL 2979053, at *3 (quoting Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998) ). The summary judgment record does not reflect any risk of “grave injustice” as a result of Plaintiffs' delays. The lache......
  • Light v. Whittington (In re Whittington), Bankruptcy No. 13-11036.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 20, 2014
    ...[530 B.R. 407]circumstances' that would work a ‘grave injustice.’ ” Fox, 2012 WL 2979053, at *3 (quoting Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998)). The summary judgment record does not reflect any risk of “grave injustice” as a result of Plaintiffs' delays. The laches defense is m......
  • In re E.R., No. 11–0282.
    • United States
    • Supreme Court of Texas
    • August 31, 2012
    ...31.See Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795, 798 (Tex.2006) (per curiam); see also Caldwell v. Barnes, 975 S.W.2d 535, 538–39 (Tex.1998) (noting that “[l]aches should not bar an action on which limitations has not run unless allowing the action ‘would work a grav......
  • Request a trial to view additional results

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