Nguyen v. Intertex, Inc.

• Decision Date: 08 August 2002
• Docket Number: No. 14-01-00234-CV.,14-01-00234-CV.
• Citation: 93 S.W.3d 288
• Parties: Truong NGUYEN, Appellant, v. INTERTEX, INC. and Vincent J. Bustamante, Individually and as President of Intertex, Inc., Appellees.
• Court: Texas Court of Appeals

93 S.W.3d 288

Truong NGUYEN, Appellant, v. INTERTEX, INC. and Vincent J. Bustamante, Individually and as President of Intertex, Inc., Appellees.

No. 14-01-00234-CV.

Court of Appeals of Texas, Houston (14th Dist.).

August 8, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bill R. Gifford, Houston, for appellants.

Richard Petronella, Houston, for appellees.

Panel consists of Justices HUDSON, FOWLER, and EDELMAN.

OPINION

WANDA McKEE FOWLER, Justice.

This is an appeal from a final judgment denying a bill of review to set aside a default judgment and granting an anti-suit injunction. Although the appeal is brought from a single judgment, five lawsuits are actually in issue, three of which were bills of review and one of which was a suit to set aside a constable sale. The other suit is the original lawsuit from which the first default judgment was entered. For the reasons stated below, we affirm.

PROCEDURAL BACKGROUND

In cause number 718,614, appellant Truong Nguyen filed a petition for a bill of review to set aside a default judgment entered in cause number 681,891. Cause number 681,891 also happened to be a bill of review. Appellees Intertex, Inc. and Vincent Bustamante answered with a general denial, which was later amended to add a counterclaim and an application for a permanent injunction. On March 20-21, 2000, the county court at law tried Nguyen's bill of review, and, at the conclusion of the trial, the court denied the bill of review without prejudice.¹

On March 31, 2000, but before the court's order from the bill of review hearing, Nguyen filed a related petition in the 113th District Court of Harris County against appellees.

The court held a hearing on appellees' counterclaim and application for permanent injunction on September 21, 2000. On November 16, 2000, the county court at law signed a final judgment denying Nguyen's bill of review and granting appellees' counterclaim and application for a permanent injunction. Among other things, the court ordered as follows: (1) that the court's judgments in cause numbers 663,-219 and 681,891 were "good, final and subsisting" judgments; and (2) Nguyen was permanently enjoined from filing or maintaining any other lawsuit involving the subject matter of the prior judgments against appellees, in any state court in the United States, without first (1) filing a motion under cause number 718,614 and giving notice to appellees, and (2) obtaining that court's permission to file a suit. The court also ordered Nguyen to either follow the procedure outlined in the final judgment to obtain permission to continue the lawsuit filed in the 113th District Court or dismiss it.

Nguyen appealed the judgment to this court. In his appeal, he raises three issues: (1) the trial court erred in granting the anti-suit injunction; (2) the trial court erred in holding that the judgments in the earlier causes of action were good, valid, and subsisting judgments; and (3) the suit in the district court should be allowed to move forward. Appellees, in addition to responding to the appeal, object to documents attached to Nguyen's brief and move for damages for a frivolous appeal.

FACTUAL BACKGROUND

As mentioned earlier, five lawsuits and two judgments are either directly or tangentially involved in this appeal. However, as we explain below, because of the nature of Nguyen's claims, we need not delve into the details of all five suits or judgments. We will give only a brief summary of what happened in each lawsuit (and, in some cases, not include every event but only the relevant events).

The First Lawsuit (Cause No. 663,-219): In 1996, Intertex filed suit for title, possession, and rents on property at 2101 Pasadena Blvd. in Pasadena, Texas. Nguyen did not answer. A default judgment was entered awarding title, possession and rents. Nguyen learned of the judgment in time to file a motion for new trial, which was never ruled on by the judge, and was overruled by operation of law. Even though Nguyen filed a motion for new trial, he did not appeal the judgment.

The Second Lawsuit (Cause No. 681,-891): In 1997, about eight months after the first judgment was entered, Nguyen filed a petition for bill of review attacking the first judgment. Intertex filed a counterclaim asking that the first judgment be declared valid, and for additional accrued rents on the property and attorneys fees. Nguyen non-suited his claim, but the counterclaim was tried. Notice of the trial was sent to Nguyen's two lawyers, but neither Nguyen or his lawyers attended the trial. As a result of this trial, a second judgment was entered against Nguyen. Like the first judgment, no appeal was taken from this judgment.

The Third Lawsuit (Cause No. 712,-585): More than a year after the second judgment was entered, Nguyen filed a second bill of review attacking the first judgment. Ultimately, this suit was dismissed for want of prosecution.

The Fourth Lawsuit (Cause No. 718,-614): The same year (1999) as the third lawsuit, Nguyen filed yet another bill of review, this time attacking the second judgment entered two years earlier. In response, Intertex filed a counterclaim seeking a declaration that the first and second judgments were valid, and requesting an injunction against additional lawsuits. The court held a trial on Nguyen's bill of review, and ultimately denied it. Later, the court held a hearing on Intertex's counterclaim and request for injunctive relief. The court entered a final judgment denying Nguyen's bill of review and granting Intertex's injunctive relief. The court did not file, and Nguyen did not request it to file, findings of fact and conclusions of law.

The Fifth Lawsuit (Cause No. 2000-16456): In early 2000, shortly after the bill of review in the fourth lawsuit was tried, but before the trial court entered its final judgment, Nguyen filed one more lawsuit attempting to set aside the constable sale of the same property involved in the first lawsuit. This suit apparently was abated pending this appeal.

ANALYSIS

1. Preliminary Matter; Documents Attached to Appellate Brief

As an initial matter, we begin by addressing appellees' objection to the documents appended to Nguyen's appellate brief, which appellees contend are not part of the appellate record in the present case. With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record. Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex.App.El Paso 1995, no writ). The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and, therefore, the documents cannot be considered. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex.App.Dallas 1987, no writ). Because the documents contained in the appendix to appellant's brief were not included in the appellate record, we sustain appellees' objection.

2. The Attack on the Prior Judgments

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. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). To set aside a judgment by bill of review, the petitioner must ordinarily plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own. Id. If the petitioner was not served, constitutional due process relieves him of showing a meritorious defense, he is not required to show that the other party's fraud, accident or wrongful act prevented him from presenting such a defense, and his own want of fault or negligence is established. Id. The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Transworld Fin. Serv. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex.1987) (citing Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950)).

Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief by bill of review. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.1999) (per curiam). Before filing a bill of review, a person must exercise due diligence to avail himself of all adequate legal remedies against a former judgment. Caldwell, 975 S.W.2d at 537. If legal remedies were available but ignored, relief by equitable bill of review is unavailable. Wembley, 11 S.W.3d at 927. This applies even if the failure results from the negligence or mistake of a party's attorney. Gracey v. West, 422 S.W.2d 913, 916 (Tex.1968); Thompson v. Henderson, 45 S.W.3d 283, 288 (Tex.App.-Dallas 2001, pet. denied).

In reviewing the grant or denial of a bill of review, every presumption is indulged in favor of the court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of judicial discretion. Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex.App.-Austin 2000, pet. denied). The trial court may be reversed for abusing its discretion only if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). We may not reverse for abuse of discretion merely because we disagree with a decision by the trial court, if that decision was within the trial court's discretionary authority. See id. Additionally, because Nguyen did not request, and the trial court did not make, findings of fact and conclusions of law, the judgment of the trial court must be affirmed on any legal theory that finds support in the evidence. See EZ Pawn Corp. v. Gonzalez, 921 S.W.2d 320, 322 (Tex.App.-Corpus Christi 1996, writ denied). In the absence of findings of fact and conclusions of law, the trial court...