Thomason v. Freberg

• Decision Date: 30 August 1979
• Docket Number: No. 1421,1421
• Citation: 588 S.W.2d 821
• Parties: Robert THOMASON, Appellant, v. Doug FREBERG, Appellee.
• Court: Texas Court of Appeals

Page 821

588 S.W.2d 821

Robert THOMASON, Appellant, v. Doug FREBERG, Appellee.

No. 1421.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 30, 1979.

Robert W. Dupuy, Corpus Christi, for appellant.

Guy Leland Watts, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

The trial court denied relief in appellant's action for bill of review and he appeals. Doug Freberg, appellee, sued Dr. Robert H. Thomason, appellant, on July 25, 1975, for labor and materials performed and furnished on Thomason's ranch. Thomason answered, alleging among other things, that Freberg's cause was barred by the statute of limitations. Trial to the court without a jury was begun on October 14, 1976. The trial was recessed then resumed on November 18, 1976, and concluded on March 4, 1977. The court then took the cause under advisement. Thereafter, on October 30, 1977, the court signed and ordered entered its judgment in favor of Freberg for $1,917.36. The judgment was not entered until February 1, 1978.

Prior to the rendition of judgment, the trial judge, on October 28, 1977, called Mr. Robert Dupuy, counsel for Thomason and informed him that the court had decided to grant judgment in favor of Freberg and against Thomason, and that he would probably render judgment sometime the following week. The trial judge informed Dupuy that he would have a copy of the judgment forwarded to him upon entry, thereof.

Dupuy filed a request for findings of fact and conclusions of law on November 4, 1977. When he did not later receive a copy of the judgment, Dupuy telephoned the court coordinator on November 14, 1977, and asked whether the judgment had been entered. The court coordinator informed Dupuy that judgment had not been entered, and that the file of the case was still on the Judge's desk.

On November 28, 1977, Dupuy again queried the court coordinator by phone and again was informed that the judgment had not been entered. Later, on December 13, 1977, Dupuy requested an associate of his law firm to personally ask the court coordinator about the status of the case. The associate was informed that the judgment had not been entered. On the same day, Mr. Guy Watts, Freberg's counsel, sent notice by letter to Dupuy that the trial judge had entered judgment on October 30, 1977.

Dupuy never received notice from the clerk of the court of entry of the judgment as required by Rule 306d, T.R.C.P. That rule reads as follows:

"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 parties stipulated that had Dupuy received proper notice, he would have appealed the judgment, but by the time he did receive notice, the appeal time had expired.

Consequently, Thomason filed this bill of review proceeding seeking to set aside the October 30, 1977, judgment and to have the court render judgment that Freberg take nothing in his original suit. Thomason's asserted grounds for the reversal and rendition contended that Freberg's cause of action was barred by the two year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), and that as a matter of law, Thomason was not liable to pay Freberg because Thomason's deceased wife, Dr. Elizabeth Thomason, had contracted for the services, and not Dr. Robert Thomason. He further asserted that the trial court failed to credit $500.00 against monies owed by Thomason to Freberg, and that attorneys fees should not be allowed because no liability could be shown.

The bill of review hearing was held on May 26, 1978, before the trial judge who decided the previous cause. The judgment in the bill of review proceeding states that evidence other than stipulations was heard, but the record does not reflect any other evidence. Appellant's brief, however, specifies that all of the evidence introduced below consisted of stipulations, together with the statement of facts, exhibits, and transcript from the previous cause. And, since this statement is unchallenged by the appellee, we will accept it as true. Rule 419, T.R.C.P.

On August 4, 1978, the trial judge signed a judgment denying the bill of review. The trial court filed findings of fact and conclusions of law which stated that the previously stipulated facts were true and also that the reason for Dupuy's failure to file a motion for new trial or to perfect an appeal in the previous cause was the "information received by Thomason's counsel from the court coordinator or the court clerk." The court also found as a fact that Dupuy was diligent in trying to determine whether judgment had been entered in the prior suit. The court then concluded: "Robert Thomason would be entitled to the relief prayed for in this cause except that it is the opinion of this court that the judgment entered in (the previous cause) on October 30, 1977, was a correct judgment." The trial court filed no findings of fact or conclusions of law dealing with the merits of the defenses asserted by Dr. Thomason.

At the outset, we note that this is not the usual type of bill of review proceeding. Most bill of review proceedings follow the rendition of a default judgment. In this case, however, the original suit had been tried on its merits. We are, therefore, placed in the similar situation presented by the appeal in Petro-Chemical Transport Co., Inc. v. Carroll, 514 S.W.2d 240 (Tex.Sup.1974).

In Petro-Chemical, the Court reviewed the general rule that the party moving for a bill of review 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. Accord, Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex.Sup.1979). The Court then stated on page 244 that the above three-part test "does not govern the disposition of all bill of review cases." In this connection, according to Petro-Chemical, one seeking a bill of review need not prove the second element above when the clerk fails to send the Rule 306d notice.

The parties to this case stipulated that no Rule 306d notice was "received." Petro-Chemical stated that a bill of review may be predicated upon the clerk's failure to "send" the notice required by Rule 306d. As can be seen, the parties did not utilize the failure to "send" language used in Petro-Chemical. Where the parties agree that a certain form of notice has not been received, there is a presumption that the notice was not mailed, and where there is no evidence to the contrary, the fact finder must find the absence of the mailing. See Sudduth v. Commonwealth County Mutual Ins. Co., 454 S.W.2d 196 (Tex.Sup.1970). Because there is no evidence to the contrary in the record here, it can be properly inferred that the clerk did not "send" the proper notice to appellant and that the second requirement of Petro-Chemical is thereby met.

Having established the second part of the three-part test above, Thomason was only required to show elements 1 and 3 above. As to element number 3, asking whether Dupuy was diligent, the trial court found the Dupuy was, in fact, diligent in trying to discover the entry of the judgment.

At this juncture, appellee Freberg contends that appellant's points of error need not be considered and the judgment denying the bill of review should be affirmed because, as we interpret his argument, Thomason showed no evidence to support the trial court's finding of diligence on element 3 above. In other words, he argues that the evidence shows that Dupuy was negligent as a matter of law. To support this argument, Freberg submits that, taken together, the following acts show negligence as a matter of law: 1) the judge's oral notice to Dupuy that the judgment would be entered the following week; 2) Dupuy's failure to call for 17 days after his notification by the trial judge (outside the time for filing a motion for new trial under Rule 329b(1), T.R.C.P.); 3) Dupuy's failure to call the clerk or the judge at any time; and 4) Dupuy's reliance on the court coordinator whose official duty was not to apprise litigants of the status of pending litigation but only to administer the court's docket. We do not agree with Freberg's argument.

In Petro-Chemical, counsel for the party moving for a bill of review was similarly apprised by the trial judge, before actually signing the judgment, that he would be rendering judgment for the plaintiff. Plaintiff's counsel then sent a copy of a proposed judgment to defendant's counsel, who responded by sending the judge and opposing counsel objections to the form of judgment after the date the judgment was signed and entered. Neither the trial judge nor opposing counsel responded to the belated objections to the form of the previously rendered judgment. Defendant's counsel, furthermore, never contacted the court clerk whose official duty was to apprise litigants of the status of pending litigation. Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex.Sup.1964); Kelly Moore Paint Co. v. Northeast National Bank, 426 S.W.2d 591 (Tex.Civ.App. Fort Worth 1968, no writ). Seventeen days after the judgment was signed, defendant's counsel called the trial judge, who, because of a busy schedule, had only a hazy recollection of defendant's case. The judge told defendant's counsel he had received the defendant's objections to the form of judgment and would give the defendant a chance to present them. Defendant's counsel later discovered the earlier entry of judgment and filed a bill of review.

The trial court in Petro-Chemical granted the defendant's bill of review after a jury trial. The Court of Civil Appeals reversed, holding that defendant's failure, among other things, to contact the clerk, who had the official duty to apprise him of...