Thomas v. 462 Thomas Family Props., LP

• Decision Date: 02 August 2018
• Docket Number: No. 05-16-01161-CV,05-16-01161-CV
• Parties: Robert THOMAS, a Trustee of the Robert K. Thomas Trust, the Tabatha D. Thomas Exempt Trust, the Tabatha D. Thomas GST-Exempt Trust A, the Robert T. Thomas Exempt Trust, the Robert T. Thomas GST-Exempt Trust A, the Tierney G. Thomas Exempt Trust, the Tierney G. Thomas GST-Exempt Trust A, the Tyler J. Thomas Exempt Trust, and the Tyler J. Thomas GST-Exempt Trust A, Appellant v. 462 THOMAS FAMILY PROPERTIES, LP, 462 Thomas Family Properties Management, LLC, Donald T. Conlon, Robyn Thomas Conlon, Individually, as Executor of the Estate of Howard Gillis Thomas, Deceased, and as Trustee of the Robyn Thomas Conlon Trust, the Kevin T. Conlon Exempt Trust, Kevin T. Conlon GST-Exempt Trust A, the Patrick C. Conlon Exempt Trust, the Patrick C. Conlon GST-Exempt Trust A, the William K. Conlon Exempt Trust, and the William K. Conlon GST-Exempt Trust A, Appellees
• Court: Texas Court of Appeals

559 S.W.3d 634

Robert THOMAS, a Trustee of the Robert K. Thomas Trust, the Tabatha D. Thomas Exempt Trust, the Tabatha D. Thomas GST-Exempt Trust A, the Robert T. Thomas Exempt Trust, the Robert T. Thomas GST-Exempt Trust A, the Tierney G. Thomas Exempt Trust, the Tierney G. Thomas GST-Exempt Trust A, the Tyler J. Thomas Exempt Trust, and the Tyler J. Thomas GST-Exempt Trust A, Appellant

v.462 THOMAS FAMILY PROPERTIES, LP, 462 Thomas Family Properties Management, LLC, Donald T. Conlon, Robyn Thomas Conlon, Individually, as Executor of the Estate of Howard Gillis Thomas, Deceased, and as Trustee of the Robyn Thomas Conlon Trust, the Kevin T. Conlon Exempt Trust, Kevin T. Conlon GST-Exempt Trust A, the Patrick C. Conlon Exempt Trust, the Patrick C. Conlon GST-Exempt Trust A, the William K. Conlon Exempt Trust, and the William K. Conlon GST-Exempt Trust A, Appellees

No. 05-16-01161-CV

Court of Appeals of Texas, Dallas.

Opinion Filed August 2, 2018.

Robert B. Gilbreath, Hawkins, Parnell, Thackston & Young, LLP, 4514 Cole Avenue, Suite 500, Dallas, TX, Susan C. Shelton, Shelton General Counsel, 4409 Riverview Dr, Carrollton, TX, T. Wesley Holmes, Sullivan & Cook, LLC, 600 E. Las Colinas, Boulevard, Ste. 1300, Irving, TX, for Appellant.

Alan S. Loewinsohn, Kerry Schonwald, Loewinsohn Flegle Deary, Simon, LLP, 12377 Merit Drive, Suite 900, Mary C. Burdette, Calloway, Norris, Burdette, Weber & Baxter-Thompson, PLLC, 3811 Turtle Creek Blvd., Ste. 400, Mary Elizabeth Conlon, The Conlon Law Firm P.C., 8333 Douglas Avenue, Suite 1414, Dallas, TX, Douglas W. Alexander, Alexander Dubose, Jefferson & Townsend LLP, 515 Congress Ave., Suite 2350, Austin TX 78701, Robert B. Dubose, Alexander Dubose, Jefferson & Townsend LLP, 1844 Harvard Street, Houston, TX, for Appellees.

Before Justices Lang -Miers, Fillmore, and Stoddart

OPINION

Opinion by Justice StoddartAppellant Robert Thomas, a Trustee of the Robert K. Thomas Trust, the Tabatha D. Thomas Exempt Trust, the Tabatha D. Thomas GST-Exempt Trust A, the Robert T. Thomas Exempt Trust, the Robert T. Thomas GST-Exempt Trust A, the Tierney G. Thomas Exempt Trust, the Tierney G. Thomas GST-Exempt Trust A, the Tyler J. Thomas Exempt Trust, and the Tyler J. Thomas GST-Exempt Trust A, appeals the trial court’s judgment dismissing his petition for a bill of review. Appellees, 462 Thomas Family Properties, LP, 462 Thomas Family Properties Management, LLC, Donald T. Conlon, Robyn Thomas Conlon, Individually, as Executor of the Estate of Howard Gillis Thomas, Deceased, and as Trustee of the Robyn Thomas Conlon Trust, the Kevin T. Conlon Exempt Trust, Kevin T. Conlon GST-Exempt Trust A, the Patrick C. Conlon Exempt Trust, the Patrick C. Conlon GST-Exempt Trust A, the William K. Conlon Exempt Trust, and the William K. Conlon GST-Exempt Trust A, filed a motion to dismiss the petition for bill of review pursuant to rule of civil procedure 91a, which the trial court granted. In two issues, appellant argues the trial court erred by dismissing his bill of review and by awarding attorney’s fees to appellees. In a single cross-issue, appellees assert the trial court erred by failing to award appellate attorney’s fees to them. We reverse the trial court’s judgment in part and we affirm in part. We remand the cause to the trial court for further proceedings.

BACKGROUND

On July 29, 2015, a probate court in Dallas County signed a final judgment in cause number PR-10-00877-2 ("Estate Case"). The Estate Case judgment, which was favorable to the defendants (appellees in this appeal), has been appealed to this Court and bears a separate cause number. The appeal of the Estate Case has been abated pending resolution of this appeal.

After the appeal of the Estate Case was filed, appellant filed a petition for an equitable and a statutory bill of review in the trial court. Appellant alleges: "[u]pon information and belief, during the proceedings and [sic] the trial that led to the [Estate Case] Judgment, one of the attorneys of record for the Defendants had a personal relationship with the judge presiding over those proceedings." Appellant asserts the existence of the relationship during the pendency of the Estate Case, the judge’s and attorney’s failures to disclose the relationship, and the judge’s failure to recuse himself constituted judicial and attorney misconduct that destroyed the integrity of the proceedings and violated appellant’s due process rights. Specifically as to his request for an equitable bill of review, appellant alleges: "The misconduct of the presiding judge and opposing counsel constitutes extrinsic fraud which denied [appellant] the right to fully and fairly present his claims, deprived [appellant] of due process, and fundamentally distorted the judicial process." The petition states appellant could not have discovered the relationship prior to the entry of judgment through the exercise of reasonable diligence. Appellant seeks to set aside the judgment as well as all orders signed by the judge in the Estate Case.

Appellees answered and generally denied the allegations. Appellees moved to dismiss pursuant to rule of civil procedure 91a, arguing appellant’s bill of review has no basis in law because, even if the allegations are true, appellant’s petition does not meet the requirements for a bill of review and dismissal is appropriate. Appellees did not contend they lacked understanding of the allegations and they did not file special exceptions. Following a hearing, the trial court granted the motion to dismiss, issued a memorandum opinion in support of its order, and dismissed appellant’s petition for a bill of review with prejudice.¹ This appeal followed.

LAW & ANALYSIS

In his first issue, appellant argues the trial court erred by granting appellees' motion to dismiss his petition for a bill of review.²

A. Texas Rule of Civil Procedure 91a

Under Texas Rule of Civil Procedure 91a, "a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact." See TEX. R. CIV. P . 91a.1. Dismissal is appropriate under rule 91a if the allegations made in the petition, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought or no reasonable person could believe the facts pleaded. See id. When considering a motion to dismiss, the court "must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59" of the rules of civil procedure. TEX. R . CIV. P . 91a.6. We review the merits of a motion to dismiss pursuant to rule 91a de novo because the availability of a remedy under the facts alleged is a question of law. City of Dallas v. Sanchez , 494 S.W.3d 722, 724 (Tex. 2016).

To determine whether dismissal under rule 91a is required in this case, we apply the fair-notice pleading standard applicable in Texas to determine whether the allegations of the petition are sufficient to allege a cause of action. See Reaves v. City of Corpus Christi , 518 S.W.3d 594, 599 (Tex. App.—Corpus Christi 2017, no pet.) (applying notice pleading standard to rule 91a motion to dismiss); Koenig v. Blaylock , 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet. denied) ("We apply the fair-notice pleading standard to determine whether the allegations of the petition are sufficient to allege a cause of action."). Our procedural rules merely require that the pleadings provide fair notice of the claim and the relief sought such that the opposing party can prepare a defense. Reaves , 518 S.W.3d at 599-600 (citing In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding) (citing TEX. R. CIV. P . 45 & 47 ) ). A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. Id. at 600 (citing Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W.3d 323, 346 (Tex. 2011) ). "Even the omission of an element is not fatal if the cause of action may be reasonably inferred from what is specifically stated." Lipsky , 460 S.W.3d at 590 (internal quotations omitted). Under this standard, courts assess whether an opposing party can ascertain from the pleading the nature of the controversy, its basic issues, and the type of evidence that might be relevant. Low v. Henry , 221 S.W.3d 609, 612 (Tex. 2007) ; Reaves , 518 S.W.3d at 600.

B. Petition for Bill of Review

"A bill of review is brought as a direct attack on a judgment that is no longer appealable or subject to a motion for new trial." Valdez v. Hollenbeck , 465 S.W.3d 217, 226 (Tex. 2015). "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." King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). Courts do not readily grant bills of review "[b]ecause it is fundamentally important in the administration of justice that some finality be accorded to judgments." Valdez , 465 S.W.3d at 226 (quoting Alexander v. Hagedorn , 148 Tex. 565, 226 S.W.2d 996, 998 (1950) ).

In general, there are two types of bills of review: equitable and statutory. See id. To obtain an equitable bill of review, a petitioner generally must plead and prove (1) a meritorious claim or defense to the judgment, (2) which the petitioner was prevented from making by official mistake or by the opposing party’s fraud, accident, or wrongful act, (3) unmixed with any fault or negligence on the petitioner’s own part. Id. However the Texas Supreme Court has recognized some instances when a party is not required to satisfy each element. See Mabon Ltd. v. Afri–Carib Enters., Inc. , 369 S.W.3d 809, 810 (Tex. 2012) (per curiam) ("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...