Saint v. Bledsoe

• Decision Date: 30 October 2013
• Docket Number: No. 06–12–00091–CV.,06–12–00091–CV.
• Citation: 416 S.W.3d 98
• Parties: Anita SAINT and Jonathan Saint, Appellants v. Samuel B. BLEDSOE and Dale Rose, Administrator of the Estate of Blake M. Bledsoe, Deceased, Appellees.
• Court: Texas Court of Appeals

416 S.W.3d 98

Anita SAINT and Jonathan Saint, Appellants

v.Samuel B. BLEDSOE and Dale Rose, Administrator of the Estate of Blake M. Bledsoe, Deceased, Appellees.

No. 06–12–00091–CV.

Court of Appeals of Texas, Texarkana.

Submitted Sept. 18, 2013.

Decided Oct. 30, 2013.

Rodney R. Elkins, Rodney R. Elkins & Co., Dallas, for Appellants.

Gregory D. Smith, Nolan D. Smith, Ramey & Flock, PC, Dallas, Dennis Black, Black & Skaggs, PC, Tyler, for Appellees.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

When, more than six months after the dismissal of their lawsuit for want of prosecution, Anita and Jonathan Saint ¹ learned of the suit's dismissal, they filed a bill of review proceeding in an attempt to get their suit back on track. At the trial on their bill of review, the jury's answers to three of the jury questions prompted the trial court to dismiss Saint's bill of review with prejudice.² On appeal, Saint seeks a reversal of the trial court's judgment, claiming to have been given no notice of the trial court's intent to dismiss the suit or of the subsequent dismissal order. ³ We affirm the judgment of the trial court because (1) no violation of Saint's due process rights was established, (2) Saint was required to show lack of negligence, (3) the jury's affirmative finding of negligence is supported by sufficient evidence, and (4) no charge error was preserved.

The notice problem arose because, during the course of the personal injury lawsuit, Saint's counsel, Rodney Elkins, changed offices twice.⁴ When the case originated, Elkins' address was 600 North Pearl Street, Suite 2250, Dallas, Texas 75201. We will refer to that as Elkins' first location. In March 2007, Elkins moved his office to 700 North Pearl Street, Suite 2150, Dallas, Texas 75201, a place we will refer to as Elkins' second location. In January 2010, Elkins moved to 12700 Hillcrest Road, Dallas, Texas 75230, his third location.

Elkins notified the Upshur County District Clerk's Office of his change of address to the second location. The court's file did not, however, include a notice of Elkins' move to his third location.⁵ Nonetheless, Elkins submitted a forwarding order to the United States Postal Service, advising of the move to his third location. Even after the latter move, Elkins ordinarily received mail forwarded from his second to his third location. The evidence, however, is that he did not receive the critical notice in this case, the notice of intent to dismiss the case for want of prosecution.

The Upshur County District Clerk's Office routinely places civil cases that are inactive for twelve months on the dismissal docket.⁶ After a pending lawsuit reaches that age, the deputy clerk manually checks the file to look for any indication that the case might be active. Here, after having determined that the Saint case lacked recent activity, the deputy clerk then checked the entire file and concluded that Elkins' second location was the address to which notification should be mailed.⁷ This address—recorded on an information worksheet—was given to the court coordinator, who used it to send the notice. The address written on the referenced worksheet was “700 N. Pearl St., Dallas, TX 75201,” omitting Elkins' suite number.

Even though the postal forwarding order was in place when the notice of intent to dismiss for want of prosecution was mailed to counsel May 12, 2010, Elkins contends it was never received.⁸ The notice indicated that all motions to retain were to be heard August 4, 2010. Because no motion to retain the case on the docket was filed, Saint's lawsuit was dismissed August 4, 2010.

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. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.), overruled on other grounds by Glassman v. Goodfriend, 347 S.W.3d 772 (Tex.App.-Houston [14th Dist.] 2011, pet. denied); Harris v. Elm Oil Co., 183 S.W.2d 216, 218 (Tex.Civ.App.-Texarkana 1944, writ ref'd w.r.m.). 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. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). When an appellate issue concerns a question of law, the appellate court reviews de novo the trial court's decision. Temple v. Archambo, 161 S.W.3d 217, 224 (Tex.App.-Corpus Christi 2005, no pet.). “Because it is fundamentally important that finality be accorded to judgments, bills of review are always watched by courts of equity ‘with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted.’ ” Ponsart v. Citicorp Vendor Fin., Inc., 89 S.W.3d 285, 288 (Tex.App.-Texarkana 2002, no pet.) (citing Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984) (quoting Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950))).

A bill of review is an equitable proceeding to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. Caldwell v. Barnes (II), 154 S.W.3d 93, 96 (Tex.2004) (per curiam); see alsoTex.R. Civ. P. 329b(f) (on expiration of time within which trial court has plenary power, “a judgment cannot be set aside by the trial court except by bill of review for sufficient cause”). A bill-of-review plaintiff must ordinarily prove “(1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on [its] own part.” Caldwell (II), 154 S.W.3d at 96. Here, the jury found official mistake, mixed with negligence on the part of Saint's attorney and Saint. “[W]hen a bill-of-review plaintiff claims a due process violation for no service or notice, it is relieved of proving the first two elements set out above.” Mabon Ltd. v. Afri–Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex.2012); Caldwell (II), 154 S.W.3d at 96 (“Bill of review plaintiffs claiming non-service ... are relieved of two elements ordinarily required to be proved in a bill of review proceeding.”). The third bill-of-review element is lack of fault or negligence. This element must nevertheless be proved-namely that the judgment was rendered unmixed with any fault or negligence by the bill-of-review plaintiff. However, lack of negligence is conclusively established if the bill-of-review plaintiff proves that it was never served with process. Caldwell (II), 154 S.W.3d at 96–97.

Here, Saint claims to have never been served with a dispositive notice-the notice of intent to dismiss for want of prosecution. Saint further claims to never having received a copy of the order of dismissal from the trial court. Saint therefore alleges that lack of negligence was conclusively established and that the dismissal therefore denied Saint due process.

(1) No Violation of Saint's Due Process Rights Was Established

It is well established that once a bill-of-review plaintiff proves the absence of service or the lack of notice of the dispositive trial setting, the plaintiff is then relieved of proving the traditional bill-of-review elements and the court should grant the plaintiff's bill of review. ⁹Mabon Ltd., 369 S.W.3d at 810 (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)). First, if there was no service to a plaintiff, constitutional due process relieves the plaintiff from the necessity of showing a meritorious defense. Caldwell (II), 154 S.W.3d at 96. Second, the plaintiff is relieved from showing that fraud, accident, wrongful act, or official mistake prevented him from presenting a meritorious defense. Id. at 96–97. Even so, the bill-of-review plaintiff alleging nonservice must still establish the third and final element required in a bill-of-review proceeding, namely, that the judgment was rendered due to causes unmixed with any fault or negligence on plaintiff's part. Id. Lack of negligence is conclusively established if the bill-of-review plaintiff can prove there was no service. Id. at 97;see also Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 87, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). One who was not served with process cannot be at fault or negligent in allowing a judgment to be entered. Caldwell (II), 154 S.W.3d at 96–97.

Because failure to send any service conclusively negates the intended recipient's fault or negligence, the question of service—when disputed—is properly resolved at trial. Garza v. Attorney Gen., 166 S.W.3d 799, 810 (Tex.App.-Corpus Christi 2005, no pet.). This issue traditionally occurs in a default judgment setting. The Texas Supreme Court has outlined the procedure to be followed when a plaintiff seeks a bill of review based solely on a claim regarding lack of service:

When a plaintiff claims lack of service, the trial court should: (1) dispense with any pretrial inquiry into a meritorious defense, (2) hold a trial, at which the bill of review plaintiff assumes the burden of proving that the plaintiff was not served with process, thereby conclusively establishing a lack of fault or negligence in allowing a default judgment to be rendered, and (3) conditioned on an affirmative finding that the plaintiff was not served, allow the parties to revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case.

Caldwell (II), 154 S.W.3d at 97–98. Situations, however, in which a party has not been subjected to the jurisdiction of the court because there was no service are distinguished from a situation in which, as here, a party knew the case was pending and inadequately protected his or her rights.

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