Mayad v. Rizk, B2105
| Decision Date | 03 October 1979 |
| Docket Number | No. B2105,B2105 |
| Citation | 588 S.W.2d 661 |
| Court | Texas Court of Appeals |
| Parties | Wallace MAYAD, Appellant, v. Fred RIZK et al., Appellees. (14th Dist.) |
Gary D. Aguren; Gary D. Aguren & Associates, Houston, for appellant.
L. Chris Butler; Reynolds, Allen & Cook, Houston, for appellees.
Before J. CURTISS BROWN, C. J., and JUNELL and SALAZAR, JJ.
Appellant Wallace Mayad appeals from a summary judgment granted to appellees Fred Rizk, et al., on appellant's equitable bill of review proceeding to set aside the dismissal of an initial suit for want of prosecution.
The initial suit was filed in February, 1971. As noted in our prior opinion, Mayad v. Rizk et al., 554 S.W.2d 835 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n. r. e.), on direct appeal from the dismissal by the trial court, it is significant that for the two previous years before the events giving rise to this controversy, the cause had been placed on the dismissal docket pursuant to local rule 12(t) and it had been retained on the docket on motion of appellant.
In February, 1976, the cause was again placed on the dismissal docket. No motion to retain the cause was filed, and on April 5, 1976, it was dismissed for want of prosecution. Appellant did subsequently file a Motion to Retain on June 16, 1976, which was overruled on July 12, 1976, and a second Motion to Retain which was also overruled on July 13, 1976.
On direct appeal, this court affirmed the dismissal at 554 S.W.2d 835, 837 on the ground that some evidence existed that the clerk complied with the provisions of Tex.R.Civ.P. 165a which provides that notice of intention to dismiss shall be sent by the clerk to each attorney of record. The supreme court refused the application for writ of error for no reversible error. Appellant Mayad then filed this bill of review proceeding.
The trial court granted appellee's motion for summary judgment on the ground that no genuine issue of material fact exists as to any question raised in the bill of review, all such questions having been decided against appellant in the direct appeal.
In order to successfully seek relief by bill of review to set aside a final judgment, a party must allege and prove:
1. A meritorious claim or defense;
2. which one was prevented from asserting or making by fraud, accident or mistake of the opposite party;
3. unmixed with any fault or negligence of his own.
Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). The second requirement has been expanded by case law to include an excuse based on error made by a clerk of the court acting in his official capacity in discharge of a duty imposed by law. Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974); Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964).
The question on appeal as to the matter of rendering or affirming a summary judgment is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970).
Appellant's sole point of error urges that the trial court erred in granting summary judgment as genuine issues of fact existed as to each of the three requirements of the bill of review. As to the first and third requirements, i. e., a meritorious claim and absence of fault or negligence on the part of appellant's counsel, the record reflects and appellees admit in their brief that they offered no summary judgment proof to establish the...
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Rizk v. Mayad
...of review suit. 554 S.W.2d 835 (Tex.Civ.App.). The court of civil appeals reversed the summary judgment and remanded the cause for trial. 588 S.W.2d 661. It is our conclusion that the controlling issues in this case either were or could have been finally determined in the prior action. We r......