In re S.W.
| Decision Date | 14 October 2021 |
| Docket Number | 02-20-00160-CV |
| Parties | In the Interest of S.W., a Child |
| Court | Texas Court of Appeals |
On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-677800-20.
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Mother and Father, a man Mother alleges and who claims to be the biological father of the child S.W., appeal the denial of their bills of review.[1] In the bills, they challenged a judgment terminating the parental rights of Mother and any biological father. Appellee Little Flower Adoptions contends that the bills of review are inviable because Mother and Father neglected to pursue all available legal remedies.
We agree that Mother neglected to pursue an available remedy: a motion for new trial under Rule 306a. This precludes us from granting her bill of review. However, the same cannot be said of Father. He was never made a party to the termination suit and he had no right to file a motion for new trial. It therefore cannot be said that he was negligent in failing to file such a motion.
Ergo we affirm as to Mother, but we reverse and remand as to Father.
After S.W. was born, Mother executed an affidavit to voluntarily relinquish her parental rights. In it, she waived service of process. Little Flower petitioned to terminate Mother's parental rights based on the affidavit. The petition alleged that S.W.'s unidentified biological father had not registered and would not register with the state's paternity registry and that he should have his parental rights terminated as well.
On November 8, 2019, the trial court rendered a judgment terminating the parental rights of Mother and any biological father. The judgment named Little Flower as managing conservator.
In December 2019, Mother and Father filed a suit affecting the parent-child relationship (SAPCR) in which they asked the trial court to name them as S.W.'s managing conservators. On January 21, 2020, Little Flower filed an answer in which it pleaded the affirmative defense of res judicata. Little Flower made note of the termination judgment and reasoned that it should have a preclusive effect on Mother and Father's SAPCR.
In June 2020, Mother and Father filed a restricted appeal of the termination judgment. We affirmed the judgment as to Mother and dismissed Father's appeal for want of jurisdiction. In re S.W., 614 S.W.3d 311, 312 (Tex. App.-Fort Worth 2020, no pet.).
Meanwhile, in February 2020, Mother filed this bill-of-review proceeding to challenge the termination judgment. She alleged that she executed the relinquishment affidavit as a result of fraud, duress, and coercion, and she asked the trial court to set the judgment aside.
Little Flower moved for summary judgment. It argued that, in the termination proceeding, Mother had the option to challenge the termination judgment with a motion for new trial under Rule 306a but that she neglected to do so. Little Flower reasoned that Mother had not satisfied the requirement that a petitioner must diligently pursue all available legal remedies before there may be relief through a bill of review.
Mother and Father filed an amended bill of review, which marked Father's first participation in this suit. Little Flower then filed a motion for summary judgment as to Father, citing the same grounds concerning failure to pursue all available remedies.
In June 2020, the trial court granted a partial summary judgment that denied Mother's bill of review. Another partial summary judgment ensued in July, rejecting Father's bill of review and finally disposing of the case. Mother and Father appeal.
On appeal, Mother and Father raise three arguments: the first, a due-process challenge concerning alleged lack of service; the second, a contention that their bills of review should have survived summary judgment; and the third, a claim for ineffective assistance of counsel. However, because Mother and Father have substantially different factual footing with respect to these arguments, we discuss them separately.
We begin with Mother's due-process challenge. Mother asserts that the termination judgment is void because she did not receive service of process. However, Mother waived service of process, see id. at 313, and that waiver obviates any constitutional need for service. See Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 61 (Tex. 2008); J.O. v. Tex. Dep't of Fam. & Protective Servs., 604 S.W.3d 182, 189 (Tex. App.- Austin 2020, no pet.). Due process requires that parties "be served, waive service, or voluntarily appear before judgment was rendered." In re J.P.L., 359 S.W.3d 695, 707 (Tex. App.-San Antonio 2011, pet. denied) (emphasis added); see also Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) (citing Tex.R.Civ.P. 124). Mother's due-process rights were not violated.
Next, Mother contends that she sufficiently proved the elements of her bill of review, such that her bill should have survived summary judgment. Little Flower responds that because, as a matter of law, Mother failed to diligently take advantage of all available legal remedies, the trial court properly granted summary judgment. We agree with Little Flower.
When, as here, a bill of review is disposed of through summary judgment, we review the case de novo under the summary-judgment standard. Mandel v. Lewisville Indep. Sch. Dist., 499 S.W.3d 65, 70 (Tex. App.-Fort Worth 2016, pet. denied); see In re Child, 492 S.W.3d 763, 766 (Tex. App.-Fort Worth 2016, pet. denied). 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 that conclusively negates at least one essential element of a plaintiff's 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); see Tex. R. Civ. P. 166a(b), (c).
If the movant does not satisfy its initial burden, the burden does not shift to the nonmovant, and the nonmovant need not respond or present any evidence. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). This is because summary judgments must stand or fall on their own merits, and the nonmovant's failure to answer or respond cannot supply by default the summary-judgment proof necessary to establish the movant's right to judgment. Id. at 511-12. "Thus, a [nonmovant] who fails to raise any issues in response to a summary judgment motion may still challenge, on appeal, the legal sufficiency of the grounds presented by the movant." Id. at 512 (cleaned up).
A direct attack-such as an appeal, a motion for new trial, or a bill of review- attempts to correct, amend, modify, or vacate a judgment and must be brought within a definite time period after the judgment's rendition. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). As compared with other sorts of direct attacks, "[a] bill of review is a different sort of creature." Steward v. Steward, 734 S.W.2d 432, 434 (Tex. App.-Fort Worth 1987, no writ) (op. on reh'g). "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 a new trial or direct appeal." Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). "Courts narrowly construe the grounds on which a plaintiff may obtain a bill of review due to Texas's fundamental public policy favoring the finality of judgments." Id. Ordinarily, a bill-of-review plaintiff must 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 her own part. Id.
Relief on a bill of review is generally available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). "If legal remedies were available but ignored, relief by equitable bill of review is unavailable." Id. This is "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." Child, 492 S.W.3d at 766. "If 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." Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004), abrogated in part on other grounds by Ex parte E.H., 602 S.W.3d 486 (Tex. 2020). This rule applies even if the failure to pursue all legal remedies results from the negligence or mistake of a party's attorney. Moseley v. Omega OB-GYN Assocs. of S. Arlington, No. 2-06-291-CV, 2008 WL 2510638, at *2 (Tex. App.-Fort Worth June 19, 2008, pet. denied) (per curiam) (mem. op.); Garcia v. Tenorio, 69 S.W.3d 309, 312 (Tex. App.-Fort Worth 2002, pet. denied).
The question is whether any legal remedies were available to Mother but ignored. We conclude that at least one remedy fits that description: a motion for new trial under Rule 306a.
A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final judgment. Aero at...
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