Petro-Chemical Transport, Inc. v. Carroll

• Citation: 514 S.W.2d 240
• Decision Date: 24 September 1974
• Docket Number: No. B--4433,PETRO-CHEMICAL,B--4433
• Parties: TRANSPORT, INC., Petitioner, v. Lance CARROLL et al., Respondents.
• Court: Supreme Court of Texas

Page 240

514 S.W.2d 240

PETRO-CHEMICAL TRANSPORT, INC., Petitioner, v. Lance CARROLL et al., Respondents.

No. B--4433.

Supreme Court of Texas.

Sept. 24, 1974.

Rehearing Denied Oct. 30, 1974.

Fly, Moeller & Stevenson, W. S. Fly, Victoria, for petitioner.

Earnest L. Sample, Beaumont, for respondents.

WALKER, Justice.

This is a proceeding in the nature of a bill of review. The parties will be referred to as they were designated in the original litigation. Lance Carroll, plaintiff, there sought a money judgment against Petro-Chemical Transport, Inc., defendant, and another corporation that is no longer involved in the case. All parties appeared and participated in the trial before a jury, which returned its verdict on November 22, 1971. Plaintiff then filed a motion for judgment on the verdict, and defendant filed a motion for judgment non obstante veredicto.

Arguments on the opposing motions were heard by the trial judge on March 27, 1972. On May 4, 1972, the judge notified counsel for both parties by letter:

'Plaintiff's motion for judgment in the above named and numbered cause is granted, and Defendant's motion for judgment is denied.'

On the following day, counsel for plaintiff sent the judge a 'form of judgment' for entry, and copies of his letter and the enclosure went to opposing counsel. The judgment was signed by the trial judge on May 9 and awarded plaintiff a recovery of $25,000.00 plus interest and costs. On May 12 counsel for defendant wrote a letter to the judge, sending copies to opposing counsel, objecting to some of the provisions of the 'proposed judgment.' At that time the judge did not recall having signed the judgment and he made no reply to the letter. On May 26 counsel for defendant talked with the judge by telephone, and upon inquiry was advised that his letter of May 12 had been received. The judge further advised that counsel for defendant would have an opportunity to argue his objections when the judgment was presented for signing.

Notice of the signing of the judgment was not mailed by the clerk as required by Rule 306d. ¹ The judgment signed by the judge did not recite notice of appeal, and May 19 was the last day for filing notice of appeal and the last day for filing a motion for new trial. Rules 329b and 353, T.R.C.P. Neither defendant nor its counsel learned that the judgment had been signed until July 20, when the sheriff attempted to levy execution on the judgment. This bill of review proceeding was filed on July 26, and the execution was stayed by temporary injunction pending a disposition of the case on the merits.

After a trial before a jury, which returned an incomplete verdict, the trial court rendered judgment which, after reciting that defendant's petition for a bill of review was granted, set aside the judgment of May 9 and again awarded plaintiff a recovery of $25,000.00 plus interest and costs. Both parties appealed to the Court of Civil Appeals, plaintiff attacking the granting of the bill of review and defendant attacking the judgment in plaintiff's favor on the claim asserted in the original suit. The Court of Civil Appeals concluded that defendant had not established its right to a bill of review. The judgment of the trial court in the bill of review proceeding was accordingly reversed and judgment was rendered that defendant take nothing. Since defendant was precluded from making an appellate attack on the judgment of May 9, its attempted appeal was dismissed. 502 S.W.2d 871.

We are concerned here only with the bill of review proceeding. The case was submitted on special issues, and the jury: (1) found that the entering of the judgment on May 9 was without negligence on the part of defendant, that defendant was prevented from appealing because of accident or mistake, that defendant's failure to file a motion for new trial was not intentional or due to conscious indifference, that defendant's counsel had some excuse, however slight and without necessarily being a good excuse, for not perfecting an appeal from the judgment of May 9, and that defendant's counsel did not intend to waive the filing of a motion for new trial or an appeal; (2) refused to find that the judgment of May 9 was entered as the result of accident or mistake; and (3) was unable to agree on the answers to issues inquiring whether the prevention of defendant from appealing was without negligence on its part and whether its failure to timely file a motion for new trial or notice of appeal was due to negligence of its counsel in various respects. In granting the bill of review on the basis of this verdict, the trial court sustained the defendant's contention, later urged on appeal, that defendant was not required to negate negligence under the facts of the present case.

Defendant bases its right to a bill of review on the failure of opposing counsel to notify it of the entry of judgment and the clerk's failure to send the notice required by Rule 306d. The Court of Civil Appeals recognized that a party who is deprived of his right of appeal from a judgment rendered after a trial on the merits may be entitled to a bill of review under certain circumstances. It nevertheless reversed the judgment of the trial court and rendered judgment that defendant take nothing because it concluded:

(1) That defendant, to show itself entitled to a bill of review, had the burden of establishing: (a) that defendant was prevented from appealing from the judgment because of Either: (i) fraud, accident or wrongful act of the opposite party, Or (ii) erroneous information given by an officer of the court acting in his official capacity in discharge of a duty imposed by law; and (b) that the failure to appeal was unmixed with any fault or negligence on defendant's part;

(2) That opposing counsel was under no duty to notify defendant of the entry of judgment;

(3) That the failure of the clerk to send the notice required by Rule 306d was an error of omission rather than commission and hence could not be the predicate for a bill of review; and

(4) That the trial court should have sustained plaintiff's motion for judgment in the bill of review proceeding since defendant failed to establish, by affirmative findings of the jury, that the failure to timely file a motion for new trial or perfect an appeal was not due to neglect of its counsel.

In the usual bill of review case, the applicant seeks to set aside a default judgment rendered against him in order that he may have an opportunity to show that he has a meritorious defense to the cause of action alleged by the successful plaintiff. As a general and almost invariable rule in such cases, the moving party must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Gracey v. West, Tex.Sup., 422 S.W.2d 913; Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996; Garcia v. Ramos, Tex.Civ.App., 208 S.W.2d 111 (wr. ref.). This rule is entirely sound as applied to a defendant who suffered a default judgment after proper personal service of citation, but it does not govern the disposition of all bill of review cases.

In another case where a party was deprived of an opportunity to appeal, we said that the signing and approving of the judgment at the private residence of the judge without the knowledge of the applicant or his counsel, was irregular and constituted such error as to warrant equitable relief in a bill of review proceeding. Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705. A defendant who is deprived of an opportunity to file a timely motion for new trial after default judgment by erroneous information furnished by an officer of the court in the performance of his official duties may be entitled to a bill of review when his failure to answer was not intentional or the result of conscious indifference even though such failure was negligent. Hanks v. Rosser, Tex.Sup., 378 S.W.2d 31. A ministerial judgment rendered by the county judge on an award of the commissioners in a condemnation proceeding may, in a direct action in the nature of a bill of review, be reformed for mutual mistake. Rose v. State, Tex.Sup., 497 S.W.2d 444.

As pointed out by the Court of Civil Appeals, the bill of review in Hanks was based on the affirmative act of the clerk in giving erroneous information in the performance of his official duties. Here the clerk simply failed to send the postcard notice required by Rule 306d, but in our opinion the difference is not material. In Perez v. Perez, Tex.Civ.App., 427 S.W.2d 703 (no writ), the defendant in a divorce case sought a bill of review following judgment rendered after a trial on the merits. He contended that his right to file a motion for new trial or appeal was lost because of the trial court's failure to inform his attorneys that the judgment had been signed. It was held that relief could not be granted on that ground since:

There is no rule or statute in Texas requiring notice to be given of rendition of judgment when a case is taken under advisement. Enactment of such a requirement may be considered salutary, and this case may well be thought to illustrate its need, but it is not our province to engraft the requirement.

Rule 306d was adopted shortly after Perez was decided. It provides:

Immediately upon the signing of any final judgment or other appealable order, the clerk of the court shall mail a postcard notice thereof to each party to the suit as provided in Rule 21a. Failure to comply with the provisions of this rule shall not affect the finality of the judgment or order.

The obvious purpose of this rule is to insure that, insofar as...