Margaret Ann Chamberlain v. General Motors Acceptance Corporation

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In The



Court of Appeals



Ninth District of Texas at Beaumont



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NO. 09-01-333 CV

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MARGARET ANN CHAMBERLAIN, Appellant



V.



GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee



On Appeal from the County Court of Jefferson County at Law No. 1

Jefferson County, Texas

Trial Cause No. 91948



O P I N I O N

Proceeding pro se, Margaret Ann Chamberlain appeals the trial court's denial of her equitable bill of review. In the trial court, General Motors Acceptance Corporation ("GMAC") sued Chamberlain; then Chamberlain counterclaimed. The trial court dismissed the cause for want of prosecution. Chamberlain appealed the dismissal untimely, (1) but also filed a bill of review with the trial court. She brings seven issues.

In issues one and three, Chamberlain maintains the trial court erred in not granting her a default judgment against GMAC because it had not timely answered her bill of review. However, GMAC filed its answer before the scheduled hearing began. A default judgment may not be rendered after the defendant has filed an answer. Tex. R. Civ. P. 239. See Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989). Thus, Chamberlain was not entitled to a default judgment. Issues one and three are overruled.

In issue two, Chamberlain complains the trial court erred in denying her motion to extend computation of time and her request for findings of fact and conclusions, and again claims the trial court erred in failing to grant her a default judgment. We will assume that Chamberlain intended to file her motion and request in the bill of review proceeding. (2) Even so, her appeal is not aided by our assumption as she failed to comply with Rule 297, which required her to file with the clerk a notice of past due findings of fact. See Tex. R. Civ. P. 297. Thus, Chamberlain waived her request. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex. 1984). We considered Chamberlain's default judgment argument in issues one and three and need not reconsider it. Issue two is overruled.

In issues four, five, and six, Chamberlain complains the trial court erred in denying her petition for a bill of review and signing a final judgment reciting a trial was held on June 4, 2001, when no trial was held on or scheduled for that date. Chamberlain set her bill of review for a hearing on June 4, 2001. During the hearing she sought to obtain a default judgment. Much of the hearing concerned the default judgment question. However, the trial court and Chamberlain agreed that her petition for bill of review was "before the Court." The trial court also stated, and GMAC agreed, that the matter was not scheduled as a trial for that day. The trial court determined it would "take it all under advisement." And, the court stated, "the bottom line that the Court is going to be ruling on - the bottom line is this Equitable Bill of Review. I'll take into consideration everything else you said, but that's what the ruling is going to be." Chamberlain did not object to this decision, nor did she offer any evidence for the trial court's consideration.

A bill of review is an independent equitable action brought by a party to a previous suit who seeks to set aside a judgment that is no longer subject to a motion for new trial or appealable. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). As explained by the Texas Supreme Court in State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464-65 (Tex. 1989)(citations and footnote omitted):

First, in order to invoke the equitable powers of the court, the bill of review petitioner must file a petition alleging factually and with particularity that the prior judgment was rendered as a result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with his own negligence. The petitioner must further allege, with particularity, sworn facts sufficient to constitute a defense and, as a pretrial matter, present prima facie proof to support the contention.



Second, if a prima facie defense has been shown, the court will conduct a trial. At this trial, the petitioner must open and assume the burden of proving by a preponderance of the evidence that the judgment was rendered as the result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with any negligence of his own.



Chamberlain's petition for bill of review is unsworn. Thus, she did not make the required prima facie showing. See id. Here, we cannot say the trial court erred in taking her petition under advisement. Issues four, five, and six are overruled.

In issue seven, Chamberlain alleges the trial court erred in not taking judicial notice of her filing a bankruptcy petition. She does not allege the trial court was ever asked to take judicial note of the bankruptcy proceeding, which was not filed until several weeks after the hearing and judgment that are the subject of her appeal. Chamberlain has preserved nothing for our review in issue seven. See Tex. R. App. P. 33.1. Issue seven is overruled.

Accordingly, the trial court's judgment is AFFIRMED.





DON BURGESS

Justice



Submitted on May 9, 2002

Opinion Delivered May 16, 2002

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Before Walker, C.J., Burgess and Gaultney, JJ.

1.

On March 28, 2002, this court, for want of jurisdiction, dismissed Margaret Ann Chamberlain's appeal of the trial court's dismissal order. We found she had failed to timely perfect appeal of the order dismissing the cause for want of prosecution.

2.

The motion to extend time and request for findings was filed over a month before the final judgment was entered in the bill of review proceeding.