Opinion issued October 30, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00116-CV
ROXANNE GIBSON, Appellant
V.
HEB GROCERY COMPANY, LP, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 07-56932
This is a premises-liability case filed by appellant, Roxanne Gibson, against Appellee, HEB Grocery Company, L.P. (HEB). After the trial court dismissed the case for discovery abuses, Gibson filed a bill of review. HEB responded by filing a motion for traditional and no-evidence summary judgment. The trial court granted HEB's motion without stating the basis of the ruling. Gibson challenges this order in two points of error. We affirm.
Facts and Procedural Background
Gibson's pleadings in the underlying lawsuit allege that she sustained serious injuries when she stepped in a pool of water in one of HEB's stores. Bartholomew Okonkwo represented Gibson in that lawsuit. In her pleadings in support of her petition for bill of review in this cause, Gibson states that Okonkwo committed gross malpractice in prosecuting her claim, resulting in his failures to properly represent Gibson, to respond to discovery, and to appear at important hearings.
Specifically, Gibson alleged that, on June 21, 2006, HEB attempted to serve Requests for Disclosures at Okonkwo's stated address; the discovery was returned unclaimed to HEB with the notation that Okonkwo had moved and had left no forwarding address; then, on two subsequent occasions, HEB faxed disclosure requests to Okonkwo and requested a corrected address. Okonkwo failed to answer either of these disclosures. On August 28, 2006, HEB filed a motion to compel the discovery and for sanctions and noticed a hearing. Okonkwo failed to appear for the hearing, at which time the trial court issued an order compelling the disclosures and ordered Okonkwo and Gibson, jointly and severally, to pay $500.00 in attorney fees as a sanction. On October 6, 2006, Okonkwo filed Gibson's disclosures, listing his address as 3555 Timmons Lane, Suite 770, Houston, Texas 77027. Okonkwo also served discovery requests on HEB, but listed a different address from the Timmons Lane address.
On November 13, 2006, HEB filed a second motion for sanctions on the ground that Okonkwo failed to file a corrected address. The trial court granted the motion and ordered both Okonkwo and Gibson to pay $300.00, jointly and severally, as a sanction. Gibson claims that neither the trial court nor HEB informed her of this action.
On December 7, 2006, HEB filed another motion to compel the discovery and for sanctions based on Okonkwo's failure to respond to the interrogatories and the requests for production that HEB had served on October 6. The trial court granted HEB's motion and ordered $450.000 in attorneys fees against Okonkwo and Gibson, jointly and severally, as a sanction. Gibson claims that no inquiries were made regarding her knowledge of or participation in the sanctionable conduct and that she received no notice of the trial court's action.
On January 11, 2007, Okonkwo filed a motion in which he attempted to explain his absence from the case and asked that the trial court set aside "all adverse orders" of sanctions previously entered and abate the proceedings. Okonkwo focused exclusively, however, on his and his wife's illnesses and complications of those illnesses. Nothing in the motion indicated in any way that the sanctions resulted from any lack of cooperation on Gibson's part. Likewise, HEB never suggested in subsequent filings that Gibson personally participated in any sanctionable conduct.
In its fourth motion for sanctions filed on February 16, 2007, HEB asked that the trial court dismiss Gibson's case as a death-penalty sanction. The trial court granted HEB's motion on February 27, 2007. Upon inquiring with the clerk of the trial court, Gibson eventually learned that her case against HEB had been dismissed, and that the deadline to perfect an ordinary appeal had passed. Gibson filed her petition for bill of review on September 7, 2007. In response, HEB sought summary judgment on both traditional and no-evidence grounds. The trial court's January 28, 2008 order granted HEB's motion without stating any grounds, denied Gibson's bill of review, and dismissed her case.
Standard of Review
We review the trial court's ruling on a summary judgment motion de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we view the evidence in the light most favorable to the nonmovant and make all reasonable inferences and resolve all doubts in the nonmovant's favor. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
The movant for a traditional summary judgment must establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant who moves for summary judgment must either disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of any affirmative defense, thereby rebutting the plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). If the movant can show that it is entitled to judgment as a matter of law, the burden shifts to the nonmovant to present evidence raising a fact issue to defeat the motion for summary judgment. Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.--Houston [1st Dist.] 1991, writ denied).
In a no-evidence motion for summary judgment, the movant represents that no evidence exists as to one or more essential elements of the nonmovant's claims on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); see Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.). On appeal, we ascertain whether the nonmovant produced more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Jackson, 979 S.W.2d at 70-71. More than a scintilla of evidence exists if the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Evidence that does no more than create a mere surmise or suspicion of fact amounts to less than a scintilla of evidence. Id.
HEB sought both a traditional and a no-evidence summary judgment. Because the summary judgment order does not specify the grounds on which the trial court relied for its ruling, we may affirm the summary judgment "if any of the summary judgment grounds are meritorious." FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
Analysis
In her first point of error, Gibson argues that the trial court erred by "determining that a bill of review [was] not the proper avenue of relief for [Gibson]." Yet, nothing in the summary judgment record or the order rendering summary judgment demonstrates that the trial court made that determination or was asked to make that determination. Gibson's first point of error thus presents nothing for review. See Tex. R. App. P. 33.1(a)(1) (governing preservation of error).
We overrule Gibson's first point of error.
In her second point of error, Gibson contends the trial court erred by rendering summary judgment in favor of HEB because genuine fact issues on the bill-of-review elements precluded that ruling. A bill of review is an equitable action brought to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. King Ranch, 118 S.W.3d at 751. Although the bill-of-review proceeding is equitable in nature, "that an injustice has occurred is not sufficient to justify relief." Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (citing Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)). The grounds on 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, 118 S.W.3d at 751 (citing Alexander, 226 S.W.2d at 998).
Accordingly, bill-of-review practice has traditionally required proof of the following three elements: (1) a meritorious defense, (2) that was not asserted due to fraud, accident, or wrongful act of an opponent or official mistake, (3) unmixed with any fault or negligence by the party seeking the bill of review. Ross v. Nat'l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006); see Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex. 1979); Sedgwick v. Kirby Lumber Co., 107 S.W.2d 358, 359 (Tex. 1937). (1)
HEB's no-evidence motion for summary judgment challenged only prong two and three as grounds warranting summary judgment. (2) As plaintiff in the bill-of-review action, Gibson would have the burden of proof on these elements at trial of the bill of review and therefore had the burden to raise a fact issue on each of these elements. Tex. R. Civ. P. 166a(i).
Fraud, Accident or Wrongful Act by Bill-of-Review Opponent
Gibson contends that existing fact issues preclude the summary judgment rendered in favor of HEB. Specifically, Gibson contends that she was prevented from raising her meritorious defense "due to HEB's wrongful acts in filing a motion that requested the dismissal of Gibson's case without first providing the requisite foundation for such a request." We construe Gibson's contention to mean that HEB acted wrongfully by requesting that death-penalty sanctions were appropriate against Gibson as punishment for her lawyer's discovery abuses.
To address Gibson's arguments, we must define what constitutes fraud, accident, or a wrongful act by a bill-of-review opponent. Fraud in relation to attacks on final judgments is either extrinsic or intrinsic. Tice v City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989). A bill of review requires a showing of extrinsic fraud, specifically, conduct that denies a party the opportunity to fully litigate at trial all rights or defenses that the party could have asserted. See id. The fraud must be by the opposing party. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987) (citing Alexander, 266 S.W.2d at 1001). (3) In moving for no-evidence summary judgment on Gibson's bill of review, HEB argued that Gibson had no evidence of any fraudulent act by HEB. We agree.
Gibson appears to support her argument that HEB's acts were wrongful because HEB requested that the trial court impose death-penalty sanctions for discovery abuse by her lawyer. Gibson further contends that HEB committed wrongful acts because it failed to make what Gibson contends was a mandatory inquiry of her, required by due process, which resulted in her ignorance of the events transpiring and her failure to respond to the requested discovery. Specifically, Gibson contends that HEB never "inquired into Gibson's participation in the discovery abuses even though her knowledge or participation was necessary for HEB to be entitled to the death penalty sanctions it sought." Gibson cites no law to support these arguments and we know of no law that required HEB to contact Gibson to inform her of the discovery abuses committed by her attorney. (4)
Gibson also emphasized that her attorney's negligence caused her to suffer the adverse judgment of dismissal in the underlying case. Even after taking these allegations as true, they fail to raise a genuine fact issue to preclude summary judgment on the bill of review. Allegations of fraud or negligence on the part of a party's attorney are insufficient to support a bill of review in favor of that party and do not relieve the bill-of-review plaintiff of her burden to prove extrinsic fraud by her opponent. See Briscoe, 722 S.W.2d at 408; see also Nichols v. Jack Eckerd Corp., 905 S.W.2d 5, 8 (Tex. App.--Houston [1st Dist.] 1995, no pet.) (citing Briscoe, 722 S.W.2d at 408 and holding same). (5)
We overrule Gibson's second point of error.
Conclusion
We hold that the trial court properly rendered no-evidence summary judgment in favor of HEB, and we affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Higley.
1. 1An exception to this requisite showing occurs when a plaintiff seeking a bill of review is a defendant who establishes that it has never been served with process; that showing alone warrants the bill of review "because the Constitution discharges the first element, and lack of service establishes the second and third." Ross v. Nat'l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006) (citing Caldwell v. Barnes, 154 S.W.3d 93, 96-97 (Tex.2004)). This exception does not apply to this case, in which Gibson was the plaintiff in the underlying case.
2. 2HEB stated in its motion for summary judgment that, "although not a basis for this motion, HEB believes that Gibson cannot meet her burden of establishing a meritorious cause of action for premises liability filed in the underlying suit." Because HEB did not move for summary judgment on that ground, we do not consider it on appeal.
3. 3Accordingly, Gibson's reliance on Wembley Inv. Co. v. Herrera, 11 S.W.3d 924 (Tex. 1999), is misplaced. Gibson contends that her lack of knowledge of status of her case and her missed discovery obligations is analogous to the lack of knowledge of the default judgment rendered against the defendant building owner in Wembley. In that case, however, as required by settled bill-of-review principles, the defendant sufficiently demonstrated that lack of knowledge that the default judgment had become final resulted from the failure of the opponent to serve notice of nonsuit and judgment. Id., 11 S.W.3d at 927-28. Wembley's reasoning does not apply because HEB had no duty to provide Gibson with notice of its intent to seek death-penalty sanctions, as addressed above. Similarly, Gibson's lack of knowledge of the status of her case and impending deadlines resulted from her own attorney's conduct, rather than any wrongful acts by HEB.
4. 4Gibson's reliance on TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) is misplaced. That case provides that a trial court imposing sanctions on a misbehaving attorney must directly relate the sanctions to the abuse found. Nothing in that case imposed a duty on HEB to inform Gibson of any of the proceedings before seeking death-penalty sanctions against her.
5. 5Because Gibson failed to raise a fact issue on element two of her bill-of-review requirement, we need not address whether she raised a fact issue on element three.