Flores v. Flores

• Decision Date: 04 September 2003
• Docket Number: No. 13-02-00163-CV.,13-02-00163-CV.
• Citation: 116 S.W.3d 870
• Parties: Roberto FLORES, Appellant, v. Jesus Jorge FLORES, Appellee.
• Court: Texas Court of Appeals

116 S.W.3d 870

Roberto FLORES, Appellant, v. Jesus Jorge FLORES, Appellee.

No. 13-02-00163-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

September 4, 2003.

David P. McClain, Jeffrey B. Price, McClain & Leppert, George M. Kirk, Jr., Houston, for appellant.

Jesus Jorge Flores, Weslaco, pro se.

Jesus Jorge Flores, pro se.

Before Justices YAñEZ, CASTILLO and GARZA.

OPINION

Opinion by Justice GARZA.

Appellant, Roberto Flores ("Roberto"), appeals from a summary judgment on a bill of review granted in favor of appellee, Jesus Jorge Flores ("Jorge"), which set aside a prior jury verdict in favor of Roberto. We reverse the trial court's judgment, render judgment denying Jorge's petition for bill of review, and reinstate the prior judgment in favor of Roberto.

A. Background

Roberto, Jorge, and Francisco Medrano ("Medrano") entered into a partnership agreement for the purpose of operating an ambulance service known as Med Trans Ambulance ("Med Trans"). A dispute arose, and Roberto and Medrano sued Jorge for breach of fiduciary duties, breach of contract, and fraud ("the underlying case"). Medrano settled his claims prior to trial.

The underlying case proceeded to trial with Jorge represented by his counsel of record at the time ("trial attorney"). The jury found in favor of Roberto and awarded $5,376,934.65 in actual and exemplary damages, plus interest. Subsequent to trial, Jorge retained another attorney for the purpose of filing and arguing post-trial motions ("post-trial attorney"). On August 4, 2000, Jorge's post-trial attorney attended a hearing on the judgment in the underlying case in which the trial judge specifically told the parties that he would sign a judgment within the next five days.¹ On August 9, 2000, Jorge filed his objections to Roberto's proposed judgment and a motion for judgment n.o.v. or, in the alternative, a new trial.² The judgment was signed on August 10, 2000. The docket sheet shows that the district clerk mailed notice of the entry of judgment to Jorge's trial attorney on August 11, 2000. Both of Jorge's counsel learned of the judgment on November 28, 2000.

Upon learning of the judgment, Jorge filed a motion in the trial court requesting extension of the appellate deadlines, which was apparently denied.³ Jorge next filed a notice of appeal. This Court dismissed the appeal as untimely. Jorge subsequently filed a petition for a bill of review in the trial court. Jorge alleged in his petition that he had been prevented from asserting a meritorious ground of appeal due to the trial court clerk's failure to notify him that a judgment in the underlying suit had been entered. Jorge further alleged that there had been no negligence on his part. In his petition, Jorge argued that his meritorious grounds of appeal were: (1) that there was no evidence or insufficient evidence to support the answers to specific jury questions; and (2) Roberto failed to elect remedies.

The trial court conducted a preliminary hearing on Plaintiff's Application for Bill of Review to determine whether Jorge had presented a prima facie case of a meritorious ground of appeal. After the hearing, the trial court entered an order finding "plaintiff has established a meritorious ground of appeal which had it been presented to the Court of Appeals might and probably would have caused the judgment in the underlying case to be reversed." The trial court did not specify the meritorious ground of appeal Jorge substantiated.

Jorge then filed a motion for summary judgment. The trial court granted the motion without a hearing, and entered a final judgment granting the bill of review. In its summary judgment order, the court specifically decided that:

(1) Jorge established as a matter of law the existence of an official mistake which was the failure of the district clerk to send notice of the judgment to Jorge or his counsel; and (2) Jorge established as a matter of law that because of the official mistake he was precluded from asserting the following meritorious grounds of appeal: (a) There was no evidence to support the answers to jury questions 4, 5, 14, and 15; and (b) There was insufficient evidence to support the answers to jury questions 4, 5, 14, and 15; and (3) Jorge established as a matter of law that his inability to assert the meritorious grounds of appeal was not the result of any negligence or conscious indifference on his part.

The court also set aside the judgment in the underlying case, declared it to be null and void, and reformed it so that Roberto took nothing and Jorge was awarded his court costs.

Roberto filed a notice of appeal, his appellate brief, and appeared for oral argument. Jorge did not file a brief or appear for oral argument.

B. Standard of Review

A party moving for summary judgment must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When reviewing a traditional summary judgment, we review the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Duge v. Union Pac. R.R. Co., 71 S.W.3d 358, 361 (Tex.App.-Corpus Christi 2001, pet. denied). We indulge every reasonable inference in favor of the non-movant, take evidence favorable to the non-movant as true, and resolve all doubts in the non-movant's favor. Montemayor v. Chapa, 61 S.W.3d 758, 762 (Tex. App.-Corpus Christi 2001, no pet.). Evidence favoring the movant's position may not be considered unless it is uncontradicted. Id.

A bill of review is an independent equitable action to set aside a judgment that is no longer appealable or subject to challenge. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex.1999). Rule 329b(f) of the Texas Rules of Civil Procedure provides: "On the expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law." Tex.R.Civ. P. 329b(f). The rules do not define "sufficient cause," but the supreme court has enunciated in specific detail the necessary steps to be followed in a bill of review proceeding. State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex.1989).

Because it is fundamentally important that some finality be accorded to judgments, a bill of review seeking relief from an otherwise final judgment is scrutinized by the courts "with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted." Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 693 (Tex. App.-Corpus Christi 2000, pet. denied) (citing Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984) (quoting Alexander v. Hagedorn, 148 Tex. 565, 569, 226 S.W.2d 996, 998 (1950))). Where there has been a trial on the merits, a losing defendant can only seek relief by bill of review if the chance to file a motion for new trial or appeal has been lost. In such a case, the bill of review petitioner must allege and prove: (1) a failure to file a motion for new trial or a 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 of the petitioner, and (4) a meritorious ground of appeal (prima facie proof only). See Petro-Chem. Transp. Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex. 1974); McDaniel v. Hale, 893 S.W.2d 652 (Tex.App.-Amarillo 1994, writ denied).

C. Analysis

Roberto asserts six issues as grounds for appeal of the trial court's judgment. In his fourth issue, Roberto urges that Jorge failed to prove "official mistake" as a matter of law. We agree with Roberto.

Official Mistake

In his Petition for Bill of Review, Jorge alleges that neither he nor his counsel had actual or constructive knowledge that judgment had been entered until November 28, 2000. This lack of knowledge, he claims, was "caused by the failure of the clerk of the court to send the notice required by Rule 306a Texas Rules of Civil Procedure." To satisfy this element of his bill of review, Jorge alleged that the district clerk's failure constituted an "official mistake."

An official mistake occurs where a court official fails to perform required duties. See Baker, 582 S.W.2d at 407. A bill of review may be predicated on a clerk's failure to send the required notice of the signing of the judgment. Petro-Chem., 514 S.W.2d at 245. Here, the record indicates that notice of the judgment was mailed to Jorge's trial attorney; however, Jorge alleges that his attorney did not receive the notice.

In granting summary judgment, the trial court found that Jorge established official mistake as a matter of law, "which was the failure of the district clerk to send notice of the judgment to Jorge or his counsel." To support this claim, Jorge provided the court with his affidavit and affidavits from his attorneys of record. Jorge testified that he was not aware of the judgment until he was told about it by his post-trial attorney on November 29, 2000. Both attorneys aver that they did not receive the judgment or any notice that it had been signed from the court, court staff, court clerk or any other source.

The post-trial attorney appeared as counsel on August 4, 2000. The record does not indicate, nor is the claim made, that the post-trial attorney substituted for the trial attorney and that notices should be mailed to him rather than the trial attorney. Instead, it appears that the trial attorney, who had been of record with the court since December 21, 1998,⁴ remained active as the attorney in charge. Thus, it was proper for the clerk to mail the judgment to the trial attorney as she had throughout the pendency of the litigation. See TEX.R. CIV. P. 8 (all communications from the court or other counsel with respect to a suit shall...