Gonzalez v. Mann
| Decision Date | 18 July 1979 |
| Docket Number | No. A2064,A2064 |
| Citation | 584 S.W.2d 928 |
| Parties | Salvador GONZALEZ et al., Appellants, v. R. Wayne MANN et al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Pat Maloney, San Antonio, for appellants.
William H. White, Margaret A. Pollard, Law Offices of William H. White Associates, H. Wayne Gillies; Law Offices of H. Wayne Gillies, Houston, for appellees.
Before MILLER, PRESSLER and SALAZAR, JJ.
This is an appeal from a summary judgment granted to the defendant in a suit for bill of review. We reverse and remand.
Salvador Gonzalez, et al., brought suit in Zavala County (First Suit) asking for various remedies arising from breach of a land sale contract. The defendants' plea of privilege was sustained and the suit was transferred to the 129th District Court of Harris County, Cause No. 999,910. The plaintiffs failed to timely answer interrogatories. The defendants sought and obtained an order to compel the plaintiffs to answer the interrogatories within ten days. After the plaintiffs failed to obey the previous order, the trial court entered judgment dismissing the suit "with prejudice" to the plaintiffs' right to bring the cause of action again.
No appeal was taken from that dismissal but instead the plaintiffs filed a suit for declaratory judgment, Cause No. 1,034,104, in the 152nd District Court of Harris County. (Second Suit) Defendants filed a plea in abatement and asked for a dismissal which was granted. The plaintiffs appealed that dismissal to this court as well as filing a Third Suit, Cause No. 1,063,128, for a bill of review of the First Suit. We reversed and remanded the appeal in the Second Suit. Gonzalez v. Mann, No. 1407 (Tex.Civ.App. Houston (14th Dist.), December 1, 1976). Upon remand defendants moved for summary judgment on the ground that the then pending bill of review deprived the trial court of jurisdiction to hear the Second Suit. The trial court granted the summary judgment. Plaintiffs appealed to this court. We held that there had been no case pending at the time of the filing of the Second Suit, as a bill of review does not revive the prior cause and we again reversed and remanded. Gonzalez v. Mann, 583 S.W.2d 637 (Tex.Civ.App. Houston (14th Dist.), 1979).
In the meantime in the Third Suit, defendants filed a motion for summary judgment on the ground that the plaintiffs were not entitled to a bill of review as a matter of law. The trial court granted the summary judgment and the plaintiffs again appeal.
In the first point of error we are met with plaintiffs' contention that because the order which the bill of review sought to set aside was void, it was not necessary for them to meet the bill of review requirements. We already decided in the appeal from the Second Suit that the trial court had no authority to dismiss the First Suit "with prejudice" under Tex.R.Civ.P. 168, 215a and 170(c) and we struck "with prejudice" as surplusage. This case also falls into the class of cases in which the Texas Supreme Court has held that where the trial court has jurisdictional power to render judgment on the merits, the litigant must utilize a bill of review proceeding. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). Only if a judgment is "void in law" can a litigant make an attack by any collateral method. Consequently, even if the "dismissal with prejudice" was allowed to stand, the plaintiffs would have had to meet the bill of review requirements in a direct attack. 1
The first point of error is overruled.
In their second and third points of error the plaintiffs complain of the granting of defendants' motion for summary judgment. In their pleadings the plaintiffs alleged that: (1) they were not afforded the opportunity to approve the motion to compel; (2) the plaintiffs' new attorney wrote to defendants' attorney saying that he had not received the interrogatories and asking that no further order be entered; (3) notwithstanding the above letter, the defendants obtained an order of dismissal; (4) the order of dismissal did not affirmatively show a certificate of service on plaintiffs' new attorney; (5) plaintiffs were "lured into relying upon said representation and custom and usage in the district court of furnishing both sides copies"; (6) they had a meritorious claim; (7) they were not at fault; (8) they had a right to be furnished with a copy of the order of dismissal and were deprived of this right by the defendants; and (9) the court clerk failed to send them notice of the judgment pursuant to Tex.R.Civ.P. 306d.
In the usual bill of review the plaintiffs have to allege and prove that they have a (1) meritorious cause of action, (2) which they were prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of their own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Gracey v. West, 422 S.W.2d 913 (Tex.1968). Several cases, however, have modified this rule.
In Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964) the defendant neglected to file an answer and suffered a default judgment. Within ten days of judgment the defendant's attorney called the court and was told by the clerk that nothing had been done when in fact the judgment had been entered on the minutes that very day. The defendant subsequently filed an answer. Nothing further was done by him until the Sheriff attempted to levy execution on his property. The defendant then brought suit for equitable relief. The Texas Supreme Court said:
Hanks was negligent as a matter of law. This negligence, however, was in failing to file an answer in time, not in his failure to timely file a motion for new trial. . . . Since there was a reliance on the erroneous official information given by the clerk, it was unnecessary for Hanks to show, as required under the other circumstances in Hagedorn, that he was prevented from filing his motion for new trial because of some accident, fraud, or wrongful act of the opposing party. . . .
The Supreme Court then summarized:
. . . assuming that the failure to file an answer is not intentional or the result of conscious indifference, that if a litigant is misled or prevented from filing a motion for new trial by misinformation of an officer of the court, acting within his official duties, and this misinformation is given to the party or his counsel within the ten-day period for filing the motion for new trial so as to bring about the failure to file a motion for new trial in time, the...
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