In re Spiller

• Citation: 303 S.W.3d 426
• Decision Date: 13 January 2010
• Docket Number: No. 10-09-00375-CV.,10-09-00375-CV.
• Parties: In re Jason SPILLER.
• Court: Texas Court of Appeals

303 S.W.3d 426

In re Jason SPILLER.

No. 10-09-00375-CV.

Court of Appeals of Texas, Waco.

January 13, 2010.

Kenneth S. Harter, Attorney at Law, Carrollton, TX, for Appellant/Relator.

W. Burton Baker, Jr., Lummus, Hallman, Pritchard & Baker PC, Cleburne, TX, Matthew D. Stayton, Kelly Hart & Happman LLP, Ft. Worth, TX, for Real Party In Interest.

Before Chief Justice GRAY Justice REYNA, and Justice DAVIS.

OPINION

FELIPE REYNA, Justice.

Jason Spiller sued Gloria Jean Boon¹, Jerry Miller, and Glenda Miller. Spiller sought and obtained a no-answer default judgment. A motion for new trial, purportedly filed by both the Millers and Boon, was denied by operation of law. Boon filed a petition for bill of review, which was granted after a hearing.² Spiller now seeks a writ of mandamus directing Respondent, the Honorable John Neill, judge of the 18th Judicial District Court of Johnson County, to vacate the order granting Boon's bill of review and vacating the default judgment. We deny the relief requested.

TIMELINESS OF PETITION

Boon contends that Spiller waived his right to mandamus relief by filing his petition several months after Respondent's order granting the bill of review.

Although mandamus is not an equitable remedy, its issuance is controlled largely by equitable principles. In re Int'l Profit Assocs., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding). "One such principle is that `equity aids the diligent and not those who slumber on their rights.'" Id. Thus, a petition for mandamus may be denied under the equitable doctrine of laches if the relator has failed to diligently pursue the relief sought. In re Wise, 20 S.W.3d 894, 895 (Tex.App.-Waco 2000, orig. proceeding). A party asserting the defense of laches must show both an unreasonable delay by the mandamus petitioner and harm resulting from the delay. In re Border Steel, Inc., 229 S.W.3d 825, 836 (Tex.App.-El Paso 2007, orig. proceeding).

Respondent signed the bill of review final order on May 21, 2009.³ Spiller filed his petition on November 13. In a letter to this Court, Spiller explained that this delay results from the length of time taken by the court reporter to prepare the record. Spiller sent three letters to the court reporter: an initial inquiry on April 21 request and payment on May 13, and an inquiry about the record's status on July 31. The record was completed on September 8 and, according to Spiller, received on September 21.

Boon argues that we cannot consider Spiller's letters to the court reporter because they are not contained in the appendix, in violation of Rules of Appellate Procedure 52.3(k) and 52.7. Because such a defect may be corrected, and given the exigency of a petition for writ of mandamus, we will disregard Spiller's failure to comply with Rules 52.3(k) and 52.7(a). See TEX.R.APP. P. 2; see also In re Cahill, 267 S.W.3d 104, 106 (Tex.App.-Corpus Christi 2008, orig. proceeding); Cronen v. Smith, 812 S.W.2d 69, 70 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding).

Boon also argues that Spiller failed to justify the delay because: (1) the court reporter's responses are not provided; and (2) Spiller waited weeks to check the record's status and did not inform the court reporter that "a mandamus is being filed, that time is of the essence, or even that a record is needed promptly."

Absent any response from the court reporter, the transcript of the hearing itself is dated September 8. Perhaps Spiller could have been more diligent, but this is not a case where there is no explanation for the delay. See Int'l Profit Assocs., 274 S.W.3d at 676-77 (Although IPA could have been more diligent, its actions did "not indicate the type of delay that forfeits a party's right to mandamus relief."); see also Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993) (Rivercenter waited over four months to seek mandamus relief, offered no justification for the delay, and showed no "diligent pursuit of any right"). Nor has Boon attempted to show that she suffered any harm as a result of the delay. See Border Steel, 229 S.W.3d at 836.

Because Spiller has offered a reasonable justification for the delay in filing his petition, he has not waived his right to mandamus relief. See Int'l Profit Assocs., 274 S.W.3d at 676; see also Wise, 20 S.W.3d at 895; In re Hinterlong, 109 S.W.3d 611, 620-21 (Tex.App.-Fort Worth 2003, orig. proceeding).

ADEQUATE REMEDY

To be entitled to mandamus relief, Spiller must show that he has no adequate remedy by appeal. See In re Bexar County Criminal Dist. Attorney's Office, 224 S.W.3d 182, 185 (Tex.2007) (orig. proceeding); see also In re Stearman, 252 S.W.3d 113, 115 (Tex.App.-Waco 2008, orig. proceeding).

Two lines of cases address whether mandamus relief is available when the trial court grants a bill of review vacating a prior judgment. Some courts hold that "[a]n erroneously granted bill of review is effectively a void order granting a new trial and is an abuse of discretion that affords no adequate remedy at law." In re Nat'l Unity Ins. Co., 963 S.W.2d 876, 877 (Tex.App.-San Antonio 1998, orig. proceeding); see Schnitzius v. Koons, 813 S.W.2d 213, 218 (Tex.App.-Dallas 1991, orig. proceeding). Other courts hold that the proper remedy is "appeal from the entire reinstated cause, when that judgment becomes appealable." Tex. Mexican Ry., Co. v. Hunter, 726 S.W.2d 616, 618 (Tex.App.-Corpus Christi 1987, orig. proceeding); see In re Moreno, 4 S.W.3d 278, 280-81 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding); see also Stettner v. Apollo Paint & Body Shop, Inc., No. 01-02-00204-CV, 2002 WL 1586282, at *1, 2002 Tex.App. LEXIS 5102, at *2-3 (Tex.App.-Houston [1st Dist.] July 18, 2002, orig. proceeding) (not designated for publication); Ott v. Files, No. 03-00-00612-CV, 2000 WL 1675737, at *1, 2000 Tex.App. LEXIS 7559, at *1-2 (Tex.App.-Austin Nov. 9, 2000, no pet.) (not designated for publication).

We agree with the Fourteenth Court's conclusion in Moreno that "an order erroneously granting a bill of review is merely voidable, not void:"

[B]ecause the trial court's ruling on a bill of review is appealable after the court denies the bill, or after the court grants the bill and rules on the merits, the court's ruling is `binding until disaffirmed' and thus, merely voidable.

Moreno, 4 S.W.3d at 280-81; Tex.R. Civ. P. 329b(f). However, we disagree with the Fourteenth Court's finding that Moreno had an "adequate remedy by appeal of the eventual final judgment in the underlying case." Moreno, 4 S.W.3d at 281.

Since Moreno, the Texas Supreme Court has relaxed the standards for establishing an adequate remedy. Today, "[t]he adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments." In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008) (orig. proceeding); see In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig. proceeding). In evaluating benefits and detriments, we consider whether mandamus will: (1) "preserve important substantive and procedural rights from impairment or loss;" (2) "`allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments;'" and (3) "spare litigants and the public `the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.'" Team Rocket, 256 S.W.3d at 262. "`[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ'... but extraordinary relief can be warranted when a trial court subjects taxpayers, defendants, and all of the state's district courts to meaningless proceedings and trials." Id. at 262 (citing Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992) and Prudential, 148 S.W.3d at 137).

[I]nsisting on a wasted trial simply so that it can be reversed and tried all over again creates the appearance not that the courts are doing justice, but that they don't know what they are doing. Sitting on our hands while unnecessary costs mount up contributes to public complaints that the civil justice system is expensive and outmoded.

In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 466 (Tex.2008) (orig. proceeding).

If Respondent erroneously granted the bill of review, then Spiller is entitled to a default judgment against Boon without the necessity of a meaningless trial. Absent mandamus relief, he loses his right to a default judgment. See TEX.R.CIV. P. 239. Thus, a conclusion that Spiller has an adequate remedy by appeal after final judgment would impair Spiller's procedural rights and require the parties to participate in a "wasted trial simply so that it can be reversed and tried all over again." McAllen Med. Ctr., 275 S.W.3d at 466. After balancing the benefits and the detriments, we conclude that Spiller does not have an adequate remedy by appeal. See Team Rocket, 256 S.W.3d at 262; see also Prudential, 148 S.W.3d at 136. Mandamus relief is the proper remedy in this case.

ABUSE OF DISCRETION

In two issues, Spiller argues that Respondent abused its discretion by finding that Boon: (1) "conclusively prove[d] non-service of process upon the named GLORIA BOONE;" and (2) did not participate in the motion for new trial. See Bexar County, 224 S.W.3d at 185 (abuse of discretion standard); see also Stearman, 252 S.W.3d at 115 (same).

Non-Service of Process

In issue one, Spiller argues that Boon failed to establish non-service of process because her testimony denying service is uncorroborated.

"[S]trict compliance with the rules for service of citation [must] affirmatively appear on the record in order for a default judgment to withstand direct attack." Primate Constr. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). "There are no presumptions in favor of valid issuance, service, and return of citation." Id. "The return of service is not a trivial, formulaic document," but is "prima facie evidence of the facts recited...