Farias v. Besteiro

• Decision Date: 16 April 1970
• Docket Number: No. 535,535
• Citation: 453 S.W.2d 314
• Parties: Gloria M. FARIAS, Appellant, v. Mary Alice BESTEIRO et al., Appellees.
• Court: Texas Court of Appeals

Page 314

453 S.W.2d 314

Gloria M. FARIAS, Appellant, v. Mary Alice BESTEIRO et al., Appellees.

No. 535.

Court of Civil Appeals of Texas Corpus Christi.

April 16, 1970.

Rehearing Denied May 7, 1970.

Edwards E. DeAses, Corpus Christi, for appellant.

Utter & Chase, Norman L. Utter, Corpus Christi, for appellees.

OPINION

GREEN, Chief Justice.

Appellant Gloria M. Farias filed in the 94th District Court of Nueces County, Texas, her petition as a Bill of Review, same being Cause No. 101,037--C in that court, seeking to have the court set aside a default judgment rendered against her in Cause No. 97,410--D. ¹ She also prayed for injunctive relief restraining appellees Mary Alice Besteiro and husband, Doro Besteiro, (plaintiffs in the default judgment case) and the sheriff of Nueces County from proceeding with an execution sale under such judgment. Special exceptions contained in appellees' answer were sustained by the court and appellant was given an opportunity to amend. Upon appellant's refusal to amend, judgment was entered dismissing the bill of review action with prejudice. Motion for new trial was overruled, and appellant has perfected her appeal to this Court.

Appellant's allegations as to the nature of the cause filed against her by appellees (No. 97,410--D) and of the default judgment taken therein are very general. The sole allegations in the bill of review concerning the nature of Cause No. 97,410--D and the judgment, and appellant's defense, are as follows:

'II.

'Plaintiff says that on October 10, 1966, her father purchased the property in question, being Lot 32, Block 8, Casa Linda Estates No. 5, a subdivision of the City of Corpus Christi, Texas. On March 3, 1967, the said Eloy Farias transferred his right, title and interest in the above property to Gloria M. Farias, Plaintiff herein, with the consent and approval of the seller of this property, the said Gloria M. Farias assuming the loan owed for the purchase price of said property. On April 7, 1967, the seller, Henry L. Tucker, conveyed by Deed of Trust the above property to Plaintiff herein, the said Gloria M. Farias. In addition to assuming the payment of the loan balance on this property, the said Plaintiff has paid several thousand dollars for the purchase price thereof and has continued making the monthly payments due on the loan balance of this property. Plaintiff says that neither Mary Alice Besteiro nor her husband Doro Besteiro have any legal or equitable interest in the above described property. That Plaintiff does not owe the Besteiros any money nor do the Besteiros have any interest in the above described property.

III.

On May 24, 1968, Mary Alice Besteiro and her husband sued the Plaintiff on an alleged oral agreement concerning the above mentioned property. In their petition, the Besteiros alleged an oral agreement between Mary Alice and Plaintiff herein, the payment by Mary Alice Besteiro of Ten Thousand ($10,000) for the purchase of the above mentioned property and a debt owing by Plaintiff herein to Mary Alice Besteiro, her sister. All of these allegations were false.

VII.

Plaintiff says that she has a meritorious defense to the petition filed by the Besteiros against her in Cause No. 97410--D, from which Cause's judgment was rendered against Plaintiff through circumstances beyond her control. Plaintiff's defense is that she does not owe the Besteiros any money and that they have no interest either legal or equitable in the above described property. That any monies paid by the Besteiros for the purchase price of this property was a loan to them from Plaintiff's father who has transferred all of his interest in this property to Plaintiff herein. Plaintiff says that she has evidence to prove her payment of the purchase price monies of the above described property . That she has a written statement, sworn to by the Besteiros, acknowledging her to be the rightful owner of the above mentioned property that she has receipts, Deeds and other instruments to show her rightful ownership of the above mentioned property.'

Appellant's petition in her bill of review action alleges as follows the reasons for her failure to file an answer in the suit brought against her by appellees (No. 97,410--D). She admits having been served with citation on June 7, 1968, two weeks after the suit was filed. Prior thereto, she had received a letter from appellees' attorney, which she had referred to a lawyer in Corpus Christi. About ten days after being served with citation, she suffered a fractured ankle when she fell in a heavy rain. She suffered other injuries in attempting to get home, as a result of which she was incapacitated for about three months. She alleged that she attempted to contact the attorney in Corpus Christi whom she had theretofore talked with about the letter from appellees' lawyer, but was unable to do so due to her incapacity as well as the lawyer's absence from his office. By the time she was able to get up and around she received a letter from the district clerk of Nueces County notifying her of the default judgment, taken September 13, 1968, three months and a week after service of citation. The letter was mailed, she alleged, on September 16, but due to a wrong address furnished the clerk by appellees' attorney, it was not received by her until about three weeks later. She took the notice of default judgment to the lawyer in Corpus Christi to whom she had sent the letter from appellees' attorney. In this respect, she states in her affidavit attached to her bill of review and made a part thereof:

'During the course of my conversations with this Attorney it was my understanding that he would take my case. He quoted me a fee and I told him that he would have to wait for his money in that I would have to pay him in installments. He seemed to have agreed to this so that at the time that I left I was under the impression that he was working on my case from that moment on. The next information I received concerning the case was a Notice from the Sheriff telling me that my property in Corpus Christi was going to be sold in satisfaction of the Judgment. I attempted to contact the same lawyer again on several occasions but was never able to do so because he was either out of his office or out of town. I finally consulted my father's Attorney in Brownsville and he referred me to _ _ in Corpus Christi, Texas.

'During all of these occasions, once I learned that a law suit had been filed against me, I made every effort possible to have representation. I called my father's Attorney who referred me to the first lawyer in Corpus Christi and thereafter had several conversations with the lawyer in Corpus Christi with the conclusion that I felt he was representing me in the case, especially since he asked me to bring the papers and medical reports to him. I did not intend to ignore the summons which I received but was prevented from reacting due to my injuries and the mistake with the first lawyer in Corpus Christi.'

The next information she received about the suit was several months later, when the sheriff gave notice of levy of execution on the land in question.

Appellant's two points of error are as follows:

'FIRST POINT. The Trial Court erred in dismissing Appellant's Petition on the grounds that said Petition did not state a cause of action.

SECOND POINT. The Trial Court erred in dismissing Appellant's Petition on the grounds that the District Clerk's failure to notify Appellant of a Default Judgment rendered against her did not constitute a basis for granting Appellant's Bill of Review.'

The trial court sustained various special exceptions directed at the vagueness, indefiniteness and generality of certain allegations in appellant's bill of review as to the cause of action alleged against her in Cause No. 97,410--D, her failure to file answer prior to default judgment, her failure to file motion to set aside the default judgment within 30 days, and the sufficiency of her allegations as to her defense to such suit. Among other special exceptions, we call attention to the following:

'III.

'Defendants except to Plaintiff's pleading as a Bill of Review because the same is insufficient in law or equity and states no cause of action for the following good and sufficient reasons:

a. That Plaintiff has failed to allege specifically the grounds of any meritorious defense, if any, to the cause of action alleged in Cause Number 97,410--D.

b. That nowhere in such pleading does Plaintiff state that she was precluded from presenting a defense to the original cause of action, same being Cause Number 97,410--D, through any extrinsic fraud, accident, or mistake wholly unmixed with any fault or negligence of her own so that she was compelled to suffer the Judgment in Cause Number 97,410--D, by reason of circumstances beyond her control.'

The purpose of a pleading is to inform the court and the adverse party of what the pleader's contentions will be on the trial of the case, and the office of special exceptions to pleadings is to furnish the adverse party a medium by which to force clarification of and specifications in pleadings when not clear or sufficiently specific. Rules 45 and 91, Texas Rules of Civil Procedure; Texas Lime Company v. Hindman, Tex.Civ.App., 300 S.W.2d 112, aff'd, 157 Tex. 592, 305 S.W.2d 947.

The trial court has a large discretion in ruling on special exceptions, and his action in sustaining them, where he grants leave to amend, will not be disturbed on appeal in the absence of an abuse of discretion resulting in injury to appellant. Jones v. Alvin State Bank, Tex.Civ.App., 332 S.W.2d 124; Weiler v. Weiler, Tex.Civ.App., 336 S.W.2d 454; Yeatman v. Nelms, Tex.Civ.App., 345 S.W.2d 351; Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707, wr. ref.; City of Abilene v. Jones, Tex.Civ.App., 355 S.W.2d 597; McKinney v. Flato Brothers, Inc., Tex.Civ.App., 397 S.W.2d 525.

The allegations of the petition must be accepted as...