Levit v. Adams, 01-91-00475-CV
| Decision Date | 22 October 1992 |
| Docket Number | No. 01-91-00475-CV,01-91-00475-CV |
| Parties | George LEVIT, Appellant, v. Kaylon ADAMS, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Following Overruling of Motion
for Hearing En Banc
Oct. 22, 1992.
Rehearing Denied Nov. 5, 1992.
David R. Richards, Austin, for appellant.
Guy N. Hohmann, Austin, Lori A. Hood, Houston, for appellee.
Before DUGGAN, COHEN and PRICE *, JJ.
George Levit sued his accountant, Kaylon Adams, seeking more than $500,000 in damages arising from Adams' alleged negligence, breach of fiduciary duty, and breach of the duty of good faith and fair dealing. On May 4, 1990, the trial judge dismissed that case for want of prosecution. Levit did not discover the dismissal until August 3, 1990. On September 10, 1990, Levit filed this suit, challenging the dismissal by equitable bill of review. The trial judge granted summary judgment for Adams in the bill of review proceeding. Levit appeals, contending that the trial court erred in granting the summary judgment. We affirm.
The facts surrounding Levit's discovery of the May 4 dismissal are not in dispute. Levit's attorney, Gary MacInnis, sued Adams in 1986. On January 27, 1989, the trial judge granted MacInnis' motion to withdraw from the case. On February 27, 1989, Levit filed his designation of Frank T. Ivy of Austin as new counsel. Ivy filed amended petitions on March 29 and October 2, 1989, and July 2, 1990. Throughout this time, discovery was ongoing.
On July 2, 1990, Levit also moved for a protective order and set the motion for hearing on August 3, 1990. At the hearing, Ivy first discovered that the case had been dismissed for want of prosecution 91 days earlier, on May 4. Before August 3, 1990, Levit had no notice of either the judge's intent to dismiss or of the dismissal.
In their summary judgment affidavits, the parties disagree about what occurred at the August 3 hearing. No statement of facts from that hearing is before us.
Ivy swore that on August 3, he showed the judge the filemarked designation of counsel and notice of appearance, dated February 27, 1990. Also on August 3, he examined the court's file, but found no documents showing why the court failed to notify him of the dismissal. Without that evidence, Ivy believed he could not meet the burden of proof established by rule 165a(3). 1 He and his agents searched without success for the next several weeks, attempting to locate proof of the reason for the court's failure to notify him of its intent to dismiss and of the dismissal. In support of his version of these events, Ivy filed the affidavits of two employees who searched for documentation, as well as the district clerk's affidavit. The clerk confirmed that on August 23, she searched for dismissal notices. They were not in the case file, but she finally located them during the first week of September 1990. 2 The notices had been sent to Levit's former counsel, Gary MacInnis, on March 7 and May 7, 1990, even though MacInnis had withdrawn by court order of January 27, 1989. 3 Ivy obtained this information on September 7, after the time for filing a motion to reinstate had passed. He filed the bill of review on September 10, 1990.
On November 7, 1990, Adams moved for summary judgment in the bill of review proceeding, asserting that Levit was not entitled to equitable relief because he had failed to pursue adequate legal remedies for challenging the dismissal. Specifically, Adams argued that Levit's failure to timely file a motion to reinstate under rule 306a of the Texas Rules of Civil Procedure within 29 days of August 3, 1990, the date he learned of the dismissal, precluded the bill of review proceeding. In response, Levit claimed that he had attempted to argue reinstatement to the judge on August 3, but counsel for Adams convinced the court that it no longer had jurisdiction to reinstate. Adams responded that the issue of jurisdiction arose only regarding Levit's motion for a protective order, not regarding reinstatement. According to Adams, the judge simply ruled that she had no jurisdiction to consider the motion for protection because the case had been dismissed. 4
The trial court granted summary judgment in Adams' favor. Levit brings four points of error contending that the trial court erred in granting summary judgment on his bill of review, in denying his cross-motion for summary judgment, in dismissing his suit against Adams without notice, and in denying him the right to a jury trial of disputed fact issues.
We take as true appellant's unchallenged assertions that his suit was dismissed without proper notice. TEX.R.APP.P. 74(f). We further agree that a party suffering a judgment without notice may not, consistent with due process, be hampered with undue burdens in attacking the judgment. General Elec. v. Falcon Ridge Apartments, 811 S.W.2d 942, 944 (Tex.1991). We also acknowledge our earlier holding that the law should encourage, not frustrate, reasonable steps to correct routine administrative errors that inevitably occur even in the most well-managed courts. Hardtke, Inc. v. Katz, 813 S.W.2d 548, 550 (Tex.App.--Houston [1st Dist.] 1991, no writ).
However, unlike in Hardtke, Inc. v. Katz, the propriety of the dismissal for want of prosecution is not the issue before us. The only issue before us is whether the trial court erred in granting summary judgment on the bill of review. We cannot consider the trial court's dismissal of the underlying suit for want of prosecution unless Levit was entitled to challenge that dismissal by way of bill of review. See Blum v. Mott, 664 S.W.2d 741, 743 (Tex.App.--Houston [1st Dist.] 1983, no writ). In reviewing the summary judgment, we consider the record in a light most favorable to the nonmovant. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). We indulge every reasonable inference and resolve any doubt in the nonmovant's favor.
A bill of review is an independent action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to motion for new trial. Ortega v. First RepublicBank Fort Worth, N.A., 792 S.W.2d 452, 453 (Tex.1990); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). It is an equitable proceeding designed to prevent manifest injustice. French v. Brown, 424 S.W.2d 893, 895 (Tex.1967). The bill of review plaintiff must show "sufficient cause" for relief under rule 329b(f) of the Texas Rules of Civil Procedure. 5 Id. The fact that an injustice occurred is not sufficient to justify relief by bill of review. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). Relief by equitable bill of review is available only if a party has exercised due diligence to pursue all adequate legal remedies against a former judgment, and through no fault of his own no adequate legal remedy was available. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989).
The primary issue then is whether Levit had an adequate legal remedy that he failed to pursue, specifically, a motion for reinstatement. See Blum, 664 S.W.2d at 743. The summary judgment was granted because the trial court ruled that Levit had such a remedy, but failed to pursue it. "Adequate remedy at law" means a remedy that is plain and complete and as practical and efficient to the ends of justice and its prompt administration as a remedy in equity. Id. at 743-44. For this determination, we must examine certain provisions of rule 165a and rule 306a.
1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record.... Notice of the signing of the order of dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule 306a except as provided in that rule.
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a ....
The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained....
If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.
4. Cumulative Remedies. This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any other procedures available to the parties in such cases.
1. Beginning of Periods. The date of [sic] judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file within such periods including, but not limited to ... motions to reinstate a case dismissed for want of prosecution....
3. Notice of Judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of...
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