Cardona v. Garcia, 13-10-00051-CV
| Decision Date | 17 March 2011 |
| Docket Number | NO. 13-10-00051-CV,13-10-00051-CV |
| Parties | NAOMI C. CARDONA, RUTH C. REYES, AND EDWARD DINN, Appellants, v. EVITA GARCIA, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF ADAN CASTILLO CUEVAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 117th District Court of Nueces County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Benavides
This is an appeal from a summary judgment (2009 Judgment) entered in a bill of review and declaratory judgment action filed by appellee Evita C. Garcia, individually and as personal representative of Adan Castillo Cueva (the Garcias). The trial court granted summary judgment in favor of the Garcias. Through the 2009 Judgment, the trial courtvacated and set aside a judgment rendered on April 24, 2007 (2007 Judgment) that denied the Garcias' request to partition the family home. Additionally, the trial court declared that the Garcias' rights to the property had not been affected by the 2007 Judgment and that they had not been divested of any rights to that property.
Appellants Naomi C. Cardona, Ruth C. Reyes, and Edward Dinn (the Cardonas) appeal the 2009 Judgment. By six issues, which we consider as five, the Cardonas contend that (1) the Garcias failed to present summary judgment evidence in the bill of review proceeding that they were without fault in failing to present a meritorious defense in the 2007 proceeding, (2) the Garcias failed to present summary judgment evidence in the bill of review proceeding that they exercised due diligence in pursuing their legal remedies after the 2007 Judgment was entered against them, (3) the summary judgment was improper because the Garcias' claim of judicial mistake does not qualify as an official mistake for bill of review relief, (4) the Garcias' claims of fraud are based on events in the 2007 litigation and are thus claims of intrinsic fraud which do not support summary judgment on this equitable bill of review claim, and (5) a declaratory judgment action may not be used to collaterally attack or to interpret a prior final judgment. We reverse and remand.
In 2007, the Garcias filed suit against their siblings, Cardona, Reyes, and ZulemaC. Rios, to partition, by sale, the family home3 of the parties' parents, Eva C. and Manuel Cuevas. The Garcias claimed that an undivided interest in the property passed to them after their mother died intestate in 1975. However, the parties' father, who died testate in 1992, left the property to one child, Rios.4
The defendants in the 2007 partition suit filed a motion for summary judgment alleging that (1) neither the Garcias nor the defendants had an interest in the real property because it was sold on November 11, 2006; and (2) in the alternative, the Garcias were not entitled to a partition of the property because they did not inherit their mother's one-half interest of the community property in 1975, rather their father did. The Garcias did not file a response and did not attend the April 24, 2007 hearing.5 Following the hearing, without stating the basis for its ruling, the trial court granted the motion which, in effect, denied the Garcias' partition request. The Garcias timely filed a motion for rehearing asking the trial court to set aside the April 24, 2007 judgment and to reset the case for trial. The motion was overruled by operation of law. The Garcias did not appeal from the 2007 Judgment.
In 2009, the Garcias filed a petition for bill of review seeking to set aside the 2007Judgment. The petition alleged that, at the time the partition suit was filed, all siblings were the undivided interest owners and heirs of their mother's one-half interest in the community property. The petition claimed that the 2007 judgment was granted erroneously because the Cardona defendants, acting by and through their attorney's misrepresentation and fraud without any fault or negligence of the Garcias, sought summary judgment based on section 45 of the Texas Probate Code that was effective September 1, 1993, and not on the applicable section 45 of the code from 1975 that vested interest in the Garcias upon their mother's death. In the alternative, the Garcias sought a declaration that the statute applicable to their mother's estate was section 45 of the Texas Probate Code, effective January 1, 1956 to September 1, 1993. The Garcias also requested "a declaratory judgment to determine the rights and interest of the parties" with regard to their mother's property.
The Garcias filed a motion for summary judgment claiming entitlement to a bill of review because: (1) they had proven their meritorious defense to the 2007 Judgment, i.e., that the trial court erred when it applied the wrong law; (2) the Cardonas engaged in extrinsic fraud; and (3) the Garcias were not at fault. The motion did not, however, address due diligence.
In the motion, the Garcias also requested that summary judgment be granted on their declaratory judgment action, should the trial court deny their bill of review. The Garcias stated that the basis for such declaratory relief was that "there [was] no issue of fact that [their] partition suit did not determine the interest rights of [the Garcias]." In their motion, the Garcias asserted that no request for a determination of ownership of the property was made in the original answer to the partition suit, and therefore, if the bill ofreview was denied, the trial court should "grant them a summary judgment for a declaratory judgment that the order on the summary judgment did nothing to [a]ffect the ownership interest rights of [the Garcias] and they [were] free to claim an interest on the property of the [estate of their mother]."7 The Cardonas did not file a response to the Garcias' motion for summary judgment and did not offer any evidence or attend the hearing on the motion.
The trial court granted summary judgment on the Garcias' petition for bill of review and set aside and vacated the original 2007 Judgment. It also granted summary judgment on the Garcias' request for declaratory relief, declaring that the Garcias' inheritance rights through their mother on the property in question had not been affected by the 2007 Judgment and that they had not been divested of any property rights they had or may have had in that property. The Cardonas appeal from the 2009 Judgment.
When a trial court grants summary judgment in a bill of review proceeding, we review the summary judgment 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.). Declaratory judgments decided by summary judgment are also reviewed under the same standards of review that govern summary judgments generally. See TEX. CIV. PRAC. & Rem. Code Ann. § 37.010 (Vernon 2008); Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 133 (Tex. App.-Waco 2005, pet. denied); In re Estate of Schiwetz, 102 S.W.3d 355, 365 (Tex. App.-Corpus Christi 2003, no pet.).
A trial court's grant of summary judgment is reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional summary judgment motion, the movant must "show that except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion...." Tex. R. Civ. P. 166a(c); see Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
In the absence of a response to a traditional motion for summary judgment, as in this case, a trial court may not grant a summary judgment motion by default when the movant's summary judgment proof is legally insufficient; the motion must stand or fall on its own merits. Tex. R. Civ. P. 166a(c); Rhone-Paulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). And, when the nonmovant fails to respond, its grounds for appeal are limited to a challenge of the legal sufficiency of the moving party's motion and supporting evidence. McConnell, 858 S.W.2d at 343; see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Shih v. Tamisiea, 306 S.W.3d 939, 944 (Tex. App.-Dallas 2010, no pet.); Tello v. Bank One, 218 S.W.3d 109, 118-19 (Tex. App.-Houston [14th Dist.] 2007, no pet.). On appeal, however, "the movant still bears the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Rhone-Poulenc, Inc., 997 S.W.2d at 223 ).
"A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal."Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Because the bill of review procedure conflicts with the fundamental policy that judgments must become final, the grounds on which a bill of review can be obtained are narrow. Chapman, 118 S.W.3d at 751 (citing Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950)); Temple v. Archambo, 161 S.W.3d 217, 222 (Tex. App.-Corpus Christi 2005, no pet.). "The rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done." Alexander, 226 S.W.2d at 998; see Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam).
Traditionally, a bill of review requires proof of three elements: (1) a meritorious defense to the underlying cause of action; (2) that was not asserted due to fraud, accident, or wrongful act of an opponent, or official mistake; ...
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