In re Interest of a Child

• Decision Date: 07 April 2016
• Docket Number: NO. 02–15–00118–CV,02–15–00118–CV
• Citation: 492 S.W.3d 763
• Parties: In the Interest of a Child
• Court: Texas Court of Appeals

492 S.W.3d 763

In the Interest of a Child

NO. 02–15–00118–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: April 7, 2016

Paul Wieneskie, Bailey & Galyen, Fort Worth, TX, for Appellant.

Thomas Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, for Appellee.

PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ.

OPINION

SUE WALKER

, JUSTICE

I. Introduction

The Mother¹ and Father² of Child appeal from the trial court's summary judgment against them in their bill-of-review proceeding and in favor of Appellee The Gladney Center for Adoption. Because Gladney conclusively negated the third element of Mother and Father's bill-of-review proceeding, we will affirm the trial court's judgment.

II. Factual and Procedural Background

On September 17, 2013, Mother and Father both signed affidavits of voluntary relinquishment, relinquishing their parental rights to Child, who was to be placed for adoption through Gladney. Mother and Father also both signed an October 9, 2013 agreed judgment terminating their parental rights to Child. Mother and Father were not mailed a copy of the termination judgment. See Tex. Fam. Code Ann. § 161.209 (West 2014)

(providing that “[a] copy of an order of termination rendered under Section 161.206 is not required to be mailed to parties”). On October 29, 2013, the trial court signed a nunc pro tunc termination judgment correcting the county of Child's birth.

On March 31, 2014, Mother and Father filed a bill of review, challenging the voluntariness of the affidavits of relinquishment that they had signed. Mother and Father claimed that their signatures on their affidavits of relinquishment were induced by fraud in that the adoptive parents of Child and Gladney led them to believe that the “contact agreement” they had signed with Child's adoptive parents concerning their rights to access of Child would be honored.³

Gladney filed a motion to dismiss the bill of review alleging that Mother and Father had failed to exhaust the legal remedies available to them to challenge the termination judgment (i.e., a motion for new trial and appeal) prior to filing their bill of review. A copy of the October 9, 2013 agreed judgment, which was signed by Mother and Father and which terminated their parental rights to Child, was attached to Gladney's motion to dismiss. Based on Mother and Father's arguments at the hearing on Gladney's motion to dismiss, during which they asserted that a motion to dismiss was an improper vehicle and that “[i]ndeed the vehicle[ ] available ... to make this sort of challenge [is] ... a motion for summary judgment,” the trial court recharacterized Gladney's motion to dismiss as an “inartfully named” motion for summary judgment. See Tex. R. Civ. P. 71

. The trial court then gave Mother and Father additional time for discovery and to file a response to Gladney's motion.

In due course, Mother and Father filed a “Response to Motion to Dismiss, Re–Designated as Motion for Summary Judgment,” attaching affidavits and summary-judgment evidence and asserting that Mother and Father did not fail to exhaust the legal remedies available to them before filing their bill of review. Mother and Father's response asserted that because they did not possess actual notice of entry of the judgment terminating their parental rights to Child, they did not negligently fail to pursue a motion for new trial or an appeal concerning the termination judgment and that “Texas law does not permit Respondent to use a Motion to Dismiss or a Motion for Summary Judgment to attack an alleged pleading deficiency.” Following another hearing on Gladney's motion, now recharacterized as a motion for summary judgment, the trial court granted summary judgment for Gladney. Mother and Father raise five issues on appeal.⁴

III. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010)

. We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010), cert. denied, 562 U.S. 1180, 131 S.Ct. 1017, 178 L.Ed.2d 829 (2011) ; see Tex. R. Civ. P. 166a(b), (c).

IV. The Law Concerning Bill–of–Review Proceedings and Notice of a Judgment

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. Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795, 797 (Tex.2006)

; Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). The fundamental policy that finality must be accorded to judgments makes the grounds upon which a bill of review will be granted narrow and restricted. See

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). Bill-of-review plaintiffs must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action; (2) which the plaintiffs were 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. Nussbaum v. Builders Bank, 478 S.W.3d 104, 108 (Tex.App.–Fort Worth 2015, pet. filed) (op. on reh'g).

Generally, a bill of review is available only when a party has exercised due diligence to avail herself of all adequate legal remedies against a former judgment because a party who fails to pursue available legal remedies is at least partially at fault for her inability to raise a meritorious defense under the third required bill-of-review element. See, e.g., Gold v. Gold, 145 S.W.3d 212, 214 (Tex.2004)

(stating that “[i]f a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to imagine any case in which failure to pursue one of them would not be negligence” precluding a party's pursuit of a bill of review); Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926–27 (Tex.1999) (“A party who fails to timely avail itself of available legal remedies is not entitled to relief by bill of review.”); French v. Brown, 424 S.W.2d 893, 895 (Tex.1967) (stating that if a party permits a judgment to become final by failing to invoke his right of appeal, then that party is precluded from proceeding on a bill of review unless the party shows a good excuse for the failure to exhaust adequate legal remedies). If the complainant had legal remedies that were ignored, relief by bill of review is unavailable. Wembley Inv. Co., 11 S.W.3d at 927 ; accord

Ferrice v. Legacy Ins. Agency, Inc., No. 02–05–00363–CV, 2006 WL 1714535, at *3 (Tex.App.–Fort Worth June 22, 2006, pet. denied) (mem.op.).

A bill-of-review plaintiff asserting lack of notice of the judgment entered against her still ultimately bears the burden under the third bill-of-review element of proving that her failure to file a motion for new trial or appeal was not due to any fault or negligence of her own.

Petro–Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex.1974)

. In Petro–Chemical Transport, Inc., the plaintiff and the defendant tried the case to a jury, and the jury returned a verdict for the plaintiff. Id. at 242. The plaintiff submitted a proposed judgment for entry by the trial court, and it was signed without notice to the defendant. Id. Additionally, the trial court clerk failed to mail notice to the defendant that the trial court had signed the judgment. Id. Neither the defendant nor his attorney learned of the entry of judgment until after expiration of the time to file a motion for new trial or a notice of appeal. Id. After the trial court granted the bill of review, the case proceeded to the supreme court; the supreme court specifically addressed whether the bill-of-review plaintiff (the defendant below) was required to show that his failure to file a motion for new trial or an appeal was not due to any fault or negligence of his own. Id. at 243. The supreme court stated:

We agree with the Court of Civil Appeals that defendant had the burden of showing that its failure to file a motion for new trial or appeal was not due to any fault or negligence on the part of defendant or its counsel. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 [ (1961) ]

. As pointed out in Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983 [ (1945) ]:

No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence[,] or mistake either of the party seeking relief or his counsel.

Id. at 246

.

V. Analysis

A. The Substance of Gladney's Motion

Confusion exists in Mother and Father's briefing concerning the trial court's decision to recharacterize Gladney's motion to dismiss as a motion for summary judgment. Gladney's motion to dismiss was based solely on the ground that Mother and Father had signed an agreed judgment terminating their parental rights and were, consequently, aware “that rendition of the judgment was imminent.” Gladney's motion argued that because Mother and Father failed, despite their agreement to the termination judgment and their knowledge of its imminent rendition, to pursue the legal remedies of filing a motion for new trial or a notice of appeal, they could not as a matter of law establish the third bill-of-review element—that they were prevented from asserting a meritorious defense in the termination case due to no negligence on...