Affirmed and Memorandum Opinion filed February 3, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00457-CV
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MICHAEL GRAY, Appellant
V.
MARK TAPPER, Appellee
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On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 02‑41470
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M EM O R A N D U M O P I N I O N
Appellant, Michael Gray, appeals from the denial of his bill of review. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
Appellant, Michael Gray, filed suit against his homeowners= association, Kirkwood South Committee (the ACommittee@) and several individuals, including Mark Tapper. Tapper failed to file an answer or make an appearance, and the trial court entered a default judgment against him.
Almost two years later, Tapper filed a bill of review, contending that his failure to answer resulted from his mistaken belief that the Committee had filed an answer on his behalf. Tapper also brought to the trial court=s attention the fact that appellant=s attorney was not authorized to practice law at the time he obtained the default judgment in appellant=s favor. On April 17, 2003, the trial court granted a summary judgment on Tapper=s bill of review and vacated the default judgment. Appellant timely filed a notice of appeal from the April 17th judgment, but that appeal was dismissed because appellant failed to pay the filing fee.
On June 26, 2003, the trial court granted Tapper=s motion for summary judgment on the underlying lawsuit and rendered a final judgment that appellant take nothing. Appellant timely filed a motion for new trial which was denied by operation of law. Appellant did not file an appeal from the June 26th final summary judgment. On December 19, 2003, appellant filed a bill of review attacking the validity of the final summary judgment. The trial court denied the bill of review, and appellant now appeals that denial.
II. Bill of Review
In his sole issue, appellant contends the trial court erred in denying his bill of review. A bill of review is an equitable proceeding by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). A bill of review complainant must prove three elements: (1) a meritorious claim or defense; (2) that he was prevented from asserting by the fraud, accident, or wrongful act of his opponent or by official mistake; and (3) the absence of fault or negligence of the complainant. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); Nichols v. Jack Eckerd Corp., 908 S.W.2d 5, 8 (Tex. App.CHouston [1st Dist.] 1995, no writ).
A. Standard of Review
In reviewing the grant or denial of a bill of review, we indulge every presumption in favor of the court=s ruling. Interaction Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex. App.CAustin 2000, pet. denied). We will not disturb that ruling unless the trial court abused its discretion. Id. A trial court abuses its discretion if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Because the trial court did not file findings of fact and conclusions of law, we will affirm the trial court=s judgment on any legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977).
B. Due Diligence
In addition to proving the three bill of review elements, the party seeking a bill of review must also prove that he exercised due diligence in pursuing all adequate legal remedies or show good cause for failing to exhaust those remedies. Barnes, 975 S.W.2d at 537; Mowbray v. Avery, 76 S.W.3d 663, 682B83 n.28 (Tex. App.CCorpus Christi 2002, pet. denied). If legal remedies were available but ignored, relief by bill of review is inappropriate. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999).
In this case, the trial court signed a final summary judgment order in favor of Tapper on June 26, 2003. However, appellant did not file an appeal from the final summary judgment order. Instead, appellant filed a petition for bill of review on December 19, 2003, nearly six months after the summary judgment order was signed. Because appellant failed to appeal from the summary judgment order, he was required to show good cause for his failure to do so in order to be entitled to relief by a bill of review. See Caldwell, 975 S.W.2d at 537.
Appellant contends that his failure to file a timely appeal was caused by misinformation provided to him by the trial court clerk. Appellant=s complaint that the clerk provided him with misinformation falls within the category of an Aofficial mistake.@ A bill of review complainant who establishes Aofficial mistake@ is relieved of proving that his failure to present a meritorious claim or defense was caused by the wrongful conduct of the opposing party, the second element of the bill of review. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987). An official mistake occurs when a court official commits error in the discharge of his official duties, and that error prevents the complainant from presenting his defense in the former action or from challenging the judgment by post-judgment actions or appeal. Baker, 582 S.W.2d at 407; Mowbray, 76 S.W.3d at 683.
The record in this case reflects that appellant filed a timely appeal from the summary judgment signed on April 17, 2003, which granted Tapper=s bill of review and set aside the default judgment. That appeal was dismissed because appellant failed to pay the filing fee. Appellant maintains that he decided not to pay the filing fee, and allowed the appeal to be dismissed, because the trial court clerk mistakenly informed appellant that a final hearing was set on Tapper=s motion for final summary judgment. According to appellant, at the time he received this information, the trial court had already granted Tapper=s motion for summary judgment. Appellant contends that absent this misinformation, he would not have permitted his appeal to be dismissed, and therefore, would have had an adequate remedy by direct appeal.
Even if we were to agree that the clerk committed an official mistake, appellant has failed to show that he is entitled to bill of review relief. The summary judgment of April 17, 2003 from which appellant filed an appeal was not a final, appealable order. See Mills v. Corvettes of Houston, Inc., 144 S.W.3d 197, 199 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (holding that an order which grants a bill of review and voids a judgment in an underlying lawsuit, but which does not dispose of the underlying lawsuit, is not a final, appealable order). Therefore, the court of appeals would have lacked jurisdiction over that appeal even if appellant had properly paid the filing fee.
Moreover, appellant has failed to demonstrate how the dismissal of his appeal from the summary judgment of April 17, 2003 prevented him from perfecting an appeal from the final summary judgment of June 26, 2003. The record plainly reflects that appellant had notice of the June 26th judgment because appellant timely filed a motion for new trial. Despite notice of the final summary judgment, appellant did not appeal, but instead attacked the judgment in a bill of review.
Appellant has not shown that he exercised due diligence in pursuing his legal remedies by direct appeal. One with an available appeal who fails to pursue that remedy is not entitled to seek relief by bill of review. Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980); French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967). Accordingly, the trial court did not abuse its discretion in denying appellant=s bill of review.[1]
III. Motion for Sanctions
Tapper requests this court to sanction appellant for filing a frivolous appeal. See Tex. R. App. P. 45. Under Rule 45, we may award just damages if we objectively determine, after considering Athe record, briefs, and other papers filed in the court of appeals,@ that an appeal is frivolous. Id. In applying Rule 45, we exercise prudence, caution and careful deliberation. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.CHouston [1st Dist.] 2001, pet. denied). We look at the record from the advocate=s viewpoint and determine whether there were reasonable grounds to believe the judgment should be reversed. See Faddoul, Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 213 (Tex. App.CEl Paso 2001, no pet.). After reviewing the record, we exercise our discretion and decline Tapper=s motion for sanctions on appeal.
We affirm the judgment of the trial court and deny Tapper=s motion for sanctions.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed February 3, 2005.
Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.
[1] On appeal, appellant raises the following arguments as to why his bill of review was improperly denied: (1) the trial court lacked jurisdiction to hear Tapper’s earlier bill of review because it was improperly filed under a different cause number than the original default judgment, and therefore, did not reopen the default judgment; and (2) summary judgment was prematurely granted in favor of Tapper because the trial court did not allow adequate time for discovery. These arguments fail to address whether appellant has satisfied the prerequisites to be entitled to bill of review relief. Therefore, we need not address these extraneous arguments. However, we do note that appellant’s suggestion that the trial court lacked jurisdiction to hear Tapper’s bill of review because it was filed under a different cause number is without merit. Texas procedure has long mandated that a petition for bill of review be a new lawsuit filed under a different cause number than the case whose judgment petitioner is attacking. See Am. Gen. Fire and Gas Co. v. Shattman, 761 S.W.2d 582, 585 (Tex. App.CFort Worth 1988, no writ) (citing Baker, 582 S.W.2d at 406).