Opinion issued March 17, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00271-CV
———————————
BILLY RAY BARNES, Appellant
V.
MARQUITA DEADRICK, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2013-06126
DISSENTING OPINION
I respectfully dissent. I strongly disagree with the majority’s disposition of
this case, which I believe has important consequences (1) for the application of
Texas bill-of-review law, (2) for the construction of Texas Rule of Civil Procedure
165a, which makes mandatory and jurisdictional the failure to file a motion to
reinstate a case dismissed for want of prosecution, and (3) Texas Rule of Civil
Procedure 1, which provides that “[t]he proper objective of rules of civil procedure
is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants
under established principles of substantive law . . . with as great expedition and
dispatch and at the least expense both to the litigants and to the state as may be
practicable.” TEX. R. CIV. P. 1. I think the majority allows an abuse of the bill-of-
review procedures and keeps alive frivolous and unsustainable litigation when the
plaintiff has readily available a legitimate remedy for any substantive wrong he
may have suffered. I would affirm the judgment of the trial court and its award of
sanctions.
The majority reverses the trial court’s dismissal of a second bill of review
filed by appellant, Billy Ray Barnes, seeking a new trial of a 2009 order in a suit
affecting the parent-child relationship (“SAPCR”), filed in 2007, in which the trial
court awarded sole managing conservatorship of a child to appellee, Marquita
Deadrick, and supervised possessory conservatorship to Barnes. Barnes defaulted
in the SAPCR itself. He failed to appeal the 2009 SAPCR order. He failed to
appear for the hearing on his first bill of review proceeding, filed a year and a half
after the 2009 order. He failed to present a shred of proof to corroborate his claim
in his first bill of review that he was entitled to a new trial because he was not
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served with the SAPCR. He failed to present any proof to dispute the recitals in
the 2009 order that he was “duly cited and served.” He failed to move to reinstate
his first bill of review after the trial court dismissed it for want of prosecution. He
failed to appeal the trial court’s order dismissing his first bill of review. He waited
another two years before filing this second bill of review. He failed to make an
offer of proof that he was never served with the original SAPCR when the trial
court held a hearing on the second bill of review. And then he filed this appeal
from the trial court’s order dismissing the second bill of review on res judicata
grounds. The majority allows Barnes yet another bite at the apple. I would not. I
believe the majority’s ruling is contrary to established law, including law
established by this Court, and contrary to the spirit of Rule 1.
It is hard to imagine a case in which a plaintiff has shown more conscious
indifference to his own claim of right, in violation of the cardinal principle
governing entitlement to a bill of review. Yet the majority’s holding and opinion
keeps alive Barnes’s complaint that he was never served with the SAPCR—a
complaint he has never sustained by any proof—and it allows him to use that bill
of review to seek a new trial on the merits of the six-year-old final order in an
eight-year-old child custody dispute.
I can only view the majority’s reversal of the trial court’s denial of Barnes’s
second bill of review as contributing to delays and the waste of litigation and
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judicial resources in violation of Rule 1. Barnes’s claims and issues are identical
to those he filed in his previous bill of review proceeding, which he failed to
prosecute, failed to move to reinstate following dismissal, and failed to appeal. I
would hold that Barnes’s second bill of review is barred under established law—
including the law of this Court—by his own conscious indifference to prosecuting
his first bill-of-review action and by his failure to file a motion to reinstate that first
bill of review. I specifically note that Barnes is entitled to bring his own SAPCR
to seek modification of the orders he has lived under for the last six years if he has
any grounds for showing a change in circumstances that render the order unjust.
Background
This is the second bill of review filed by Barnes concerning a SAPCR filed
by Deadrick with respect to M.B. in 2007. Barnes failed to appear in the SAPCR
to seek conservatorship of his child. On April 9, 2009, the trial court signed an
order in the SAPCR that included a default judgment against Barnes. The order
recited that Deadrick had appeared at trial with her attorney on March 23, 2009.
The order also stated that, although he had been “duly and properly cited, [Barnes]
did not appear [at trial] and wholly made default.” The trial court appointed
Deadrick as M.B.’s sole managing conservator and appointed Barnes as possessory
conservator, granted him supervised visitation with M.B., and required him to pay
$514.55 in monthly child support to Deadrick.
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Barnes did not appeal the 2009 final order in the SAPCR, which granted sole
managing conservatorship to Deadrick and supervised possessory conservatorship
to him. Nor did he timely object in any way to the recitals in the trial court’s final
order that he had been duly and properly cited to appear but had made default.
However, on or around September 10, 2010—almost a year and half later—he
filed a verified bill of review in the trial court contending that he had never been
properly served with the SAPCR. He did not attach any evidence to disprove the
recitals in the 2009 SAPCR order that he had, in fact, been “duly and properly
cited” with service.
On September 10, 2010, the associate judge held a hearing on Barnes’s bill
of review petition. Barnes again failed to appear—even at the hearing on his own
bill of review—and thus presented no evidence to corroborate his claim that he had
not been served in the SAPCR proceeding and was therefore entitled to a new trial.
Although the associate judge made a docket sheet entry noting that the bill of
review was denied, the associate judge did not sign a written order memorializing
that entry. Instead, on February 15, 2011, the presiding judge of the trial court
dismissed the bill of review for want of prosecution, noting that trial had been duly
noticed to the parties for the previous day but neither had appeared.
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Barnes did not timely file a motion to reinstate his bill of review pursuant to
Texas Rule of Civil Procedure 165a, and he did not appeal the trial court’s order
dismissing his suit.
Barnes initiated his second bill-of-review proceeding—the proceeding
underlying this appeal—on January 31, 2013, again seeking to set aside the 2009
order in the 2007 SAPCR. In his sworn petition, Barnes averred that he had been
“prevented by [Deadrick] from asserting his parental rights to the child” because
he “was served via substitute service at an incorrect address and thus never
received notice of the pending action.” He did not attach any extrinsic proof—not
even his own affidavit—to corroborate his claim that he had not been served with
the SAPCR petition in 2007 or to contradict the recitals in the 2009 final order that
he had been duly cited but had made default. Nor did he attach any proof that he
had not received notice of the hearing on his first bill of review, notice of the trial,
or notice of that suit’s dismissal for want of prosecution.
Deadrick answered the petition and asserted the affirmative defense of res
judicata. Deadrick claimed as follows: (1) there was a “prior final judgment by the
[trial] court” in Barnes’s “previously filed bill of review”; (2) both Barnes and
Deadrick were parties to the earlier filed bill-of-review proceeding; and (3) the
second-filed petition for bill of review “is based on the claims that were raised or
could have been raised in the first action.”
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The trial court conducted a hearing, heard and overruled Deadrick’s special
exceptions to Barnes’s bill-of-review petition, heard the parties’ arguments
regarding Deadrick’s affirmative defense of res judicata, and stated that the bill-of-
review claim had been “ruled on more than three years ago. It was denied at that
time, and res judicata applies.” Barnes did not argue that his case should not be
dismissed because it was not res judicata. He made no attempt to make an offer of
proof that he had never been served in the initial SAPCR proceeding. The trial
court signed an order denying the second bill-of-review petition on January 9,
2014.
Barnes first raised the argument that he makes on appeal—that his second
bill-of-review petition was not barred by res judicata—in a motion for new trial, to
which he attached a copy of the February 15, 2011 order that dismissed the first
bill-of-review action for want of prosecution.
Deadrick responded that the trial court had appropriately denied Barnes’s
second bill-of-review petition on res judicata grounds. She offered the docket
sheet from the first bill-of-review proceeding, pointing out that, according to the
associate judge’s notation, the associate judge had denied Barnes’s first bill-of-
review petition on September 10, 2010. She further asserted that it was
procedurally improper for Barnes to challenge the trial court’s denial of the second
bill-of-review petition with a motion for new trial. She claimed that Barnes’s only
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available post-judgment remedy was to file an appeal. Deadrick also sought
sanctions against Barnes, asserting that his motion for new trial had been filed for
“an improper purpose” and “to harass or to cause unnecessary delay or needless
increase in cost of litigation.” Following a hearing, the trial court denied Barnes’s
motion for new trial, found that “Barnes’s claim is barred by res judicata” and that
his motion for new trial was “procedurally improper,” found that Barnes had filed
the motion for new trial for “an improper purpose,” and sanctioned him $2,700,
representing Deadrick’s “reasonable attorney’s fees.”
On appeal, the majority reverses the trial court’s orders and remands the case
to the trial court to try Barnes’s claim—made in both bills of review—that he was
not served eight years ago in the 2007 SAPCR proceeding, a matter on which he
has never presented any evidence despite repeated opportunities, all of which he
has rejected.
I would hold that the trial court did not err in dismissing the case for want of
prosecution in 2011 after Barnes missed both the hearing on his own bill-of-review
petition and the scheduled and noticed trial on his petition and made no proof
whatsoever that he had never been served with citation in the 2007 SAPCR,
displaying conscious indifference to the proceedings. I would further hold that,
because Barnes failed to avail himself of either a motion to reinstate his first bill of
review within the time frame provided by Texas Rule of Civil Procedure 165a or a
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timely appeal of the trial court’s dismissal of that proceeding, his first bill of
review became final and bars this subsequent attempt to resurrect his claim of lack
of service in 2007.
I note that Family Code section 156.002 specifically authorizes a party
affected by an order in a SAPCR to file a suit for modification in the court with
continuing exclusive jurisdiction. TEX. FAM. CODE ANN. § 156.002 (Vernon
2014). And Family Code section 156.101 expressly permits the trial court to
“modify an order that provides for the appointment of a conservator of a child, that
provides the terms and conditions of conservatorship, or that provides for the
possession of or access to a child if modification would be in the best interest of
the child and . . . the circumstances of the child, a conservator, or other party
affected by the order have materially and substantially changed since . . . the date
of the rendition of the order.” Id. § 156.101(a)(1)(A) (Vernon 2014). Barnes has
never availed himself of this opportunity. Instead, he seeks to retry the 2007 case
leading to the trial court’s 2009 order awarding managing conservatorship of the
child to Deadrick six years ago and awarding him possessory conservatorship
despite his repeated acts of conscious indifference to his rights.
I would affirm the judgment of the trial court dismissing Barnes’s second
bill of review. I also agree with the finding of that court that this entire proceeding
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is improper, and I would therefore likewise affirm the award of sanctions against
Barnes.
Bill of Review
A. Standard of Review
In reviewing a trial court’s ruling on a bill of review, we indulge every
presumption in favor of the trial court’s ruling, and we will not disturb it unless an
abuse of discretion is affirmatively shown. Nguyen v. Intertex, Inc., 93 S.W.3d
288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We may reverse the
trial court for abusing its discretion in denying the bill of review only if it has acted
in an unreasonable or arbitrary manner, or without reference to any guiding rules
and principles. Id. In my view, this standard has not been followed by the
majority in this case.
B. Dismissal of First Bill of Review for Want of Prosecution and
Barnes’s Failure to Appeal or Move to Reinstate
The majority holds that the trial court’s dismissal of Barnes’s first bill of
review proceeding for want of prosecution does not bar this second bill of review
regarding the exact same subject matter as the first—Barnes’s claim that he was
never served with the 2007 SAPCR, in which he defaulted. I would hold that it
does.
“[A] party who fails to timely avail itself of available legal remedies is not
entitled to relief by bill of review.” Davis v. Smith, 227 S.W.3d 299, 304 (Tex.
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App.—Houston [1st Dist.] 2007, no pet.) (citing Wembley Inv. Co. v. Herrera, 11
S.W.3d 924, 927 (Tex. 1999) (per curiam)); see also Wembley Inv. Co., 11 S.W.3d
at 927 (“Generally, bill of review relief is available only if a party has exercised
due diligence in pursuing all adequate legal remedies against a former judgment
and, through no fault of its own, has been prevented from making a meritorious
claim or defense by the fraud, accident, or wrongful act of the opposing party.”).
Thus, a bill of review is unavailable when a petitioner does not file a motion to
reinstate a proceeding dismissed for want of prosecution. See Davis, 227 S.W.3d
at 304; see also Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980) (“[O]ne with an
available appeal who fails to pursue that remedy is not entitled to seek relief by
way of a bill of review.”). “[T]he Supreme Court of Texas has explained that ‘[i]f
a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to
imagine any case in which failure to pursue one of them would not be
negligence.’” Davis, 227 S.W.3d at 304 (quoting Gold v. Gold, 145 S.W.3d 212,
214 (Tex. 2004) (per curiam)); see also Rizk, 603 S.W.2d at 776 (stating that “a bill
of review may not be used when one neglects to urge a motion for new trial or
appeal when he has time to do so”).
Two sources grant a trial court the authority to dismiss a suit for want of
prosecution, as the trial court here dismissed Barnes’s first bill of review: (1) Texas
Rule of Civil Procedure 165a and (2) the trial court’s inherent authority. See TEX.
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R. CIV. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999). The trial court may dismiss a case pursuant to Rule 165a based on the
“failure of any party seeking affirmative relief to appear for any hearing or trial of
which the party had notice” or when the case is not disposed of within the time
standards promulgated by the Texas Supreme Court. See Villarreal, 994 S.W.2d at
630 (citing TEX. R. CIV. P. 165a(1), (2)). The common law also grants the trial
court “the inherent power to dismiss independently of the rules of procedure when
a plaintiff fails to prosecute his or her case with due diligence.” Id.; Dueitt v.
Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco
2005, pet. denied).
Rule 165a provides for dismissal for want of prosecution “on failure of any
party seeking affirmative relief to appear for any hearing or trial of which the party
had notice.” TEX. R. CIV. P. 165a(1) It then provides that the parties must be
notified of the dismissal hearing and that “[a]t the dismissal hearing, the court shall
dismiss for want of prosecution unless there is good cause for the case to be
maintained on the docket. . . . The case may be continued thereafter only for valid
and compelling reasons specifically determined by court order.” Id. (emphasis
added). Notably, the trial court is not required to hold a dismissal hearing before
dismissing an action for want of prosecution after the plaintiff has failed to appear
for a hearing and the order setting the hearing clearly warned the parties that they
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could expect dismissal for want of prosecution if the plaintiff failed to attend. See
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 851–52 (Tex. 2004).
Rule 165a further provides that, following dismissal, a party may move to
reinstate the case by verified motion setting forth the grounds for reinstatement.
TEX. R. CIV. P. 165a(3). The motion must be filed with the clerk within thirty days
after the order of dismissal is signed or within the period prescribed by Rule of
Civil Procedure 306a for periods running from the date of judgment or notice of
judgment. See id.; TEX. R. CIV. P. 306a. If a motion to reinstate an action
dismissed for want of prosecution is timely filed, the trial court has plenary power
to reinstate the case until thirty days after all such timely filed motions are
overruled, either by written order or by operation of law. Davis, 227 S.W.3d at
303. If a motion to reinstate is not decided by signed, written order within seventy-
five days after the judgment is signed, or within a time allowed by Rule 306a, the
motion is deemed overruled by operation of law and the judgment of dismissal
becomes final. Id.; see TEX. R. CIV. P. 165a(3). The time limits governing a
motion to reinstate a cause of action dismissed for want of prosecution are
mandatory and jurisdictional. Davis, 227 S.W.3d at 303.
When the trial court dismisses a case for want of prosecution and the
plaintiff files a motion to reinstate, the court “shall reinstate the case upon finding
after a hearing that the failure of the party or his attorney was not intentional or the
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result of conscious indifference but was due to an accident or mistake or that the
failure has been otherwise reasonably explained.” TEX. R. CIV. P. 165a(3); Smith
v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam).
A failure of the party or his attorney is not intentional or due to conscious
indifference “within the meaning of the rule merely because it is deliberate; it must
also be without adequate justification.” Smith, 913 S.W.2d at 468. “Proof of such
justification—accident, mistake or other reasonable explanation—negates the
intent or conscious indifference for which reinstatement can be denied.” Id.
Conscious indifference “means more than mere negligence.” Id. To obtain
reinstatement, the plaintiff bears the burden of demonstrating that he has diligently
prosecuted his case. See Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 130
(Tex. App.—Houston [14th Dist.] 1999, no pet.); Tex. Mut. Ins. Co. v. Olivas, 323
S.W.3d 266, 274 (Tex. App.—El Paso 2010, no pet.) (“The complaining party has
the burden to bring forth a record to support its contention.”).
Rule 165a(3)’s reinstatement provision applies to all dismissals for want of
prosecution, including those made under the trial court’s inherent power. See
Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (citing Cappetta v. Hermes, 222 S.W.3d
160, 166 (Tex. App.—San Antonio 2006, no pet.), and Brown v. Howeth Invs.,
Inc., 820 S.W.2d 900, 903 (Tex. App.—Houston [1st Dist.] 1991, writ denied));
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see also TEX. R. CIV. P. 165a(4) (“The same reinstatement procedures and
timetable are applicable to all dismissals for want of prosecution including cases
which are dismissed pursuant to the court’s inherent power . . . .”). By its plain
language, Rule 165a provides the exclusive mechanism for reinstating a case
following dismissal for want of prosecution. See TEX. R. CIV. P. 165a(3).
We review a trial court’s ruling dismissing a case for want of prosecution
and a court’s ruling on a motion to reinstate for an abuse of discretion. See Smith,
913 S.W.2d at 468; Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401
(Tex. App.—Dallas 2001, pet. denied) (per curiam). In reviewing a dismissal for
want of prosecution, the court of appeals is required to affirm the dismissal if it
finds that either the trial court’s inherent authority or Rule 165a would have
authorized the trial court to dismiss the action. See Polk v. Sw. Crossing
Homeowners Ass’n, 165 S.W.3d 89, 96 (Tex. App.—Houston [14th Dist.] 2005,
pet. denied). A trial court does not, however, abuse its discretion when “its
decision is based on conflicting evidence or when some evidence of a substantive
and probative character exists to support the trial court’s decision.” Olivas, 323
S.W.3d at 275 (citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)).
Here, Barnes failed to appear for the hearing on his own first bill of review,
justifying dismissal of that bill of review under the plain language of Rule 165a.
See TEX. R. CIV. P. 165a(1). Moreover, the record affirmatively demonstrates that
15
Deadrick did appear and that Barnes had notice but did not. The trial court’s order
of dismissal likewise affirmatively states that “[a]ll counsel of record in the above
mentioned case were notified by this court that this matter was set for final trial on
the merits on 2-14-11” and that “[n]either counsel appeared.” Dismissal of that
first bill of review for failure to appear at both the hearing and the trial on the
merits of the bill of review was therefore justified under Rule 165a. See id.;
Alexander, 134 S.W.3d at 851–52.
Barnes filed no motion to reinstate his first bill of review. Barnes likewise
failed to file an appeal of the trial court’s order dismissing his first bill of review,
just as he failed to file a motion to reinstate that proceeding. Since Barnes did not
move to reinstate his first bill of review or file an appeal of the dismissal order, the
order became a final and unappealable judgment thirty days after the trial court
entered the order. See Davis, 227 S.W.3d at 303 (stating that time limits governing
motion to reinstate cause of action dismissed for want of prosecution are
mandatory and jurisdictional); see also In re Valliance Bank, 422 S.W.3d 729, 730
(Tex. App.—Fort Worth, 2013, orig. proceeding) (stating that Rule 165a requires
timely-filed, sworn verification by movant or his attorney as jurisdictional
prerequisite to extend plenary power of trial court beyond thirty days after order of
dismissal is signed).
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Because Barnes failed to file a motion to reinstate and failed to appeal the
dismissal of his first bill of review, he failed to timely avail himself of available
legal remedies, and the judgment on his first bill of review became final and
unappealable. See Rizk, 603 S.W.2d at 775; Davis, 227 S.W.3d at 304. Notably,
however, if he had filed an appeal, the reviewing court would have been obliged
by law to conclude that the trial court did not abuse its discretion in dismissing his
bill of review for want of prosecution and was not required to reinstate the claims
that Barnes had failed to litigate despite repeated opportunities. See Polk, 165
S.W.3d at 96 (in reviewing dismissal for want of prosecution, court of appeals is
required to affirm dismissal if it finds that either trial court’s inherent authority or
Rule 165a would have authorized trial court to dismiss action).
The majority’s holding in this second bill of review, however, permits
Barnes to bring exactly the same bill of review on exactly the same grounds as
before—namely, that he was not served in 2007—despite established law holding
that he has no such right. Like the supreme court in Gold, and this Court in Davis,
I find it hard to imagine, under these circumstances, that Barnes was not negligent
in failing to pursue his remedies for the alleged failure of Deadrick to serve him
with notice of her petition in the SAPCR proceeding. See Gold, 145 S.W.3d at
214; Davis, 227 S.W.3d at 304. Indeed, I would hold that the record affirmatively
demonstrates his conscious indifference to all of the proceedings from the filing of
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the SAPCR in 2007 to the filing of his second bill of review and its dismissal.
Therefore, in my view, it cannot be said that the trial court abused its discretion in
dismissing the first bill of review.
Conclusion
Because of Barnes’s conscious indifference to his rights and his failure to
move to reinstate his first—identical—bill of review under Rule 165a within the
mandatory time limits, which resulted in a final and unappealable judgment against
him on his first bill of review, I would hold that the trial court did not err in
dismissing Barnes’s second bill of review. See Wembley Inv. Co., 11 S.W.3d at
927; Davis, 227 S.W.3d at 304. Accordingly, I would affirm the judgment of the
trial court. I also agree with the trial court’s award of sanctions and would affirm
it.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Justice Keyes, dissenting.
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