Garza v. Attorney General

• Decision Date: 09 June 2005
• Docket Number: No. 13-02-153-CV.,13-02-153-CV.
• Citation: 166 S.W.3d 799
• Parties: Jose Abel GARZA, Appellant, v. ATTORNEY GENERAL of Texas and Margarita A. Yogi, Appellees.
• Court: Texas Supreme Court

166 S.W.3d 799

Jose Abel GARZA, Appellant, v. ATTORNEY GENERAL of Texas and Margarita A. Yogi, Appellees.

No. 13-02-153-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 9, 2005.

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Charles Manning, Beeville, for appellant.

Brenda J. Heinold, Office of Atty. General/Child Support Division, Victoria, Rhonda Pressley, Asst. Attorney General, John Worley, Asst. Attorney General Child Support Division, Austin, Jose L. Aliseda, Jr., Beeville, for appellees.

Jose L. Aliseda Jr., for Margarita A. Yogi.

Before Justices YAÑEZ, CASTILLO, and GARZA.

OPINION

Opinion by Justice CASTILLO.

Appellant Jose Abel Garza filed a petition for bill of review to set aside a default judgment for child support and retroactive child support in a paternity action. After an evidentiary hearing, the trial court denied the bill of review and filed findings of fact and conclusions of law. This appeal ensued. We affirm.

I. BACKGROUND

Appellee, the Attorney General, filed a SAPCR to establish the parent-child relationship between Garza and his minor daughter, J.M.G., born of Garza's relationship with appellee Margarita A. Yogi.¹ The Attorney General prosecuted the suit to establish paternity and obtained the default judgment against Garza. On May 18, 1999, the trial court entered the default order establishing the parent-child relationship between Garza and J.M.G., and requiring that Garza pay (1) $417.00 monthly child support, and (2) $200.00 monthly payments toward a default retroactive child support judgment granted in the same decree.² The Attorney General filed a certificate of last known address on May 18, 1999. On June 1, 2001, the Attorney General filed a motion to enforce, alleging non-payment of court-ordered child support and retroactive child support.³ On October 1, 2001, Garza filed a petition for bill of review. Germaine to Garza's complaint in his petition and on appeal are his allegations that (1) in the original paternity action, he was not personally served with citation; and (2) after the trial court entered a default judgment against him, he did not receive notice of the default judgment.

II. ISSUES PRESENTED

Garza presents two issues on appeal. In the first, Garza argues that the trial court's finding that he was personally served with process on March 30, 1998, is so against the overwhelming preponderance of the evidence as to be manifestly unjust. In his second issue, Garza argues that, in light of the failure of the district clerk to comply with Texas Rules of Civil Procedure 239a and 306a, such that he received no actual notice of the May 18, 1999, default judgment until November 1999, his conduct in November 1999 to begin the withholding of child support and his failure to file a petition for bill of review until 2001 do not justify the trial court's denial of the bill of review.

III. BILL OF REVIEW

A bill of review is an equitable proceeding to set aside a judgment that is no longer appealable or subject to a motion for new trial. State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex.1989) (per curiam) (op. on reh'g); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979); Mowbray v. Avery, 76 S.W.3d 663, 682 (Tex.App.-Corpus Christi 2002, pet. denied), cert. denied, Mowbray v. State, 498 U.S. 1101, 111 S.Ct. 999, 112 L.Ed.2d 1082 (1991). Upon the expiration of the trial court's 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. See Tex.R. Civ. P. 329b(f). To have the judgment set aside, the complainant must first meet certain pretrial burdens and then prevail on the merits. Baker, 582 S.W.2d at 408-09 (describing complainant's pretrial prima facie burden of proof); Kessler v. Kessler, 693 S.W.2d 522, 526 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.).

The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (citing Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950)); see also Transworld Fin. Servs., Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex.1987); Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984). The burden on a bill of review petitioner is heavy. See Layton v. Nationsbanc Mortgage Corp., 141 S.W.3d 760, 763 (Tex.App.-Corpus Christi 2004, no pet.).

Before a litigant can successfully invoke the equitable powers of the court and secure a bill of review to set aside a final judgment, he must generally allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment; (2) which he was prevented from making by the fraud, accident, or wrongful act of the opposing party; and (3) unmixed with any fault or negligence of his own. King Ranch, 118 S.W.3d at 752 (citing Hagedorn, 226 S.W.2d at 998); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.1999) (per curiam); Baker, 582 S.W.2d at 407-08. The petitioner must further allege, with particularity, sworn facts sufficient to constitute a meritorious defense and, as a pretrial matter, present prima facie proof to support the contention. 1985 Chevrolet Pickup Truck, 778 S.W.2d at 464.

We review the granting or denial of a bill of review under an abuse of discretion standard. Manley v. Parsons, 112 S.W.3d 335, 337 (Tex.App.-Corpus Christi 2003, pet. denied). In reviewing the grant or denial of a bill of review, we indulge every presumption in favor of the trial court's ruling and will not disturb that ruling unless the trial court abused its discretion. Layton, 141 S.W.3d at 762-63; Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex.App.-Austin 2004, no pet.); Parsons, 112 S.W.3d at 337. A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without reference to guiding rules and principles. Layton, 141 S.W.3d at 763. When the inquiry on the bill of review concerns questions of law, such as whether an appellant presented prima facie proof of a meritorious defense, we review the trial court's decision de novo. Parsons, 112 S.W.3d at 337 n. 2.

Appellate review of the trial court's findings of historical fact is deferential because the trial court is in a better position to weigh credibility and make such determinations. In re R.J.H., 79 S.W.3d 1, 6 (Tex.2002). In applying the abuse of discretion standard, reviewing courts defer to the trial court's factual determinations; a reviewing court does not engage in its own factual review, but decides whether the record supports the trial court's resolution of factual matters. State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633-34 (Tex.2000); Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). If the record supports the trial court's evidentiary findings, the reviewing court is not at liberty to disturb them. $217,590.00, 18 S.W.3d at 634 (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992)). A reviewing court instead determines only whether the trial court properly applied the law to the facts in reaching its legal conclusion. See $217,590.00, 18 S.W.3d at 634; Segura v. State, 826 S.W.2d 178, 181 (Tex.App.-Dallas 1992, pet. ref'd).

A trial court clearly abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Packer, 827 S.W.2d at 839; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). With respect to resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for that of the trial court. Packer, 827 S.W.2d at 839; Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex.1989). Under this standard, an appellant must establish that the trial court could reasonably have reached only one decision. Packer, 827 S.W.2d at 840; Johnson, 700 S.W.2d at 917. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Packer, 827 S.W.2d at 840; Johnson, 700 S.W.2d at 918.

IV. LACK OF PROPER SERVICE

In his first issue, Garza asserts the finding of service was so against the overwhelming weight of the evidence as to be manifestly unjust. The Attorney General responds, in essence, that the trial court made the appropriate credibility determinations in reaching its decision.⁴ A defendant who challenges a default judgment on the basis of defective service must do so by motion for new trial, or if the trial court's plenary power has expired, by bill of review. McEwen v. Harrison, 162 Tex.125, 345 S.W.2d 706, 710 (1961).⁵

A. Particularized Standard of Review

We begin by considering what a bill of review plaintiff must prove when claiming lack of service of process. As we have noted, 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. See Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex.2004) (per curiam) (citing Baker, 582 S.W.2d at 406).⁶ A bill of review plaintiff must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action; (2) which the plaintiff was prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake; (3) unmixed with any fault or negligence on their own part. See id.

Bill of review plaintiffs claiming non-service, however, are relieved of two elements ordinarily required to be proved in a bill of review proceeding. Caldwell, 154 S.W.3d at 96. First, if a plaintiff was not served, constitutional due process relieves the plaintiff from the need to show a meritorious defense. Id. at 96-97 (citing Peralta v....