TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00828-CV
Luis Alberto Vences, Appellant
v.
Marissa Garcia Robledo, Evangelina Robledo, Andrew Emerito Costilla,
James Stephen Sustaita, and Mary Prado, Appellees
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-001566, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
MEMORANDUM OPINION
Luis Alberto Vences appeals from the denial of the petition for bill of review he
filed to challenge a 2009 order awarding child support to Marissa Garcia Robledo. We will
affirm the denial.
BACKGROUND
In 2008, Robledo filed an original petition in a suit affecting the parent-child
relationship. Her petition sought, inter alia, an award of child support from Vences. Robledo
appeared at the hearing on the matter in 2009. Vences did not. The court appointed an attorney
ad litem to represent Vences’s interests and ultimately ordered Vences to pay $595.53 per month
in child support and $16.105.01 in retroactive child support. Vences did not comply with the
terms of the order, and the Attorney General filed a motion to enforce in 2016. In response,
Vences filed a petition for bill of review alleging that he was never served with the petition in the
suit affecting the parent-child relationship and that the 2009 child-support order is therefore
“void or voidable.” After holding a hearing, the district court denied the petition for bill of
review and, on Vences’s request, issued findings of fact and conclusions of law in support.
Vences then perfected this appeal.
DISCUSSION
A bill of review is an equitable proceeding brought by a party seeking to set aside
a prior judgment or order that is no longer subject to challenge by a motion for new trial or
appeal. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per
curiam); Wiegrefe v. Wiegrefe, No. 03-16-00665-CV, 2017 WL 3908645, at *2 (Tex. App.—
Austin Aug. 29, 2017, no pet.) (mem. op.). “[T]o be successful upon a bill of review, the
complainant 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.”
Arndt v. Arndt, 714 S.W.2d 86, 87–88 (Tex. App.—Houston [14th Dist.] 1986, no writ). That
said, a plaintiff demonstrating deficient service is relieved of the obligation to prove the first two
elements because a judgment rendered without service is constitutionally infirm. Peralta v.
Heights Med. Ctr., Inc., 485 U.S. 80, 84–85 (1988); Katy Venture, 469 S.W.3d at 164. “We
review the trial court’s ruling on a bill of review for an abuse of discretion,” indulging “every
presumption in favor of that ruling.” Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.—
Austin 2000, pet. denied). “A trial court abuses its discretion when it acts in an unreasonable and
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arbitrary manner, or without reference to any guiding rules or principles.” Id. (citing Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
In this case, the district court did not abuse its discretion in denying the petition
for bill of review because Vences did not timely file his petition. A petition for bill of review
must generally be filed within four years of the rendition of the disputed judgment unless the
challenger can show that extrinsic fraud prevented him from participating in the proceedings that
led to that judgment. See Tex. Civ. Prac. & Rem. Code § 16.051; Valdez v. Hollenbeck,
465 S.W.3d 217, 226 (Tex. 2015); PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012).
Extrinsic fraud “occurs when a litigant has been misled by his adversary by fraud or deception.”
PNS Stores, 379 S.W.3d at 275 (citing Alexander v. Hagedorn, 226 S.W.2d 996, 1001 (Tex.
1950)). The trial court found that no fraud had occurred and therefore acted in accordance with
governing principles in denying the petition for bill of review.
Vences disagrees, insisting that “failure of the actual service was the result of
extrinsic fraud on the behalf of the mother and her family system” and part of a “conspiracy to
deprive Plaintiff Father Luis Vences of his parental rights.” We will construe this argument as a
challenge to the sufficiency of the evidence supporting the district court’s finding that no fraud
occurred. When reviewing a trial court’s decision for abuse of discretion, legal and factual
sufficiency are not independent grounds of error but are relevant in determining whether the trial
court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006,
pet. denied). We look first to whether the record includes sufficient evidence upon which the
trial court could exercise its discretion. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—
Austin 2014, no pet.). If it does, we then consider whether that exercise constituted abuse. Id.
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There is no abuse of discretion if some substantive, probative evidence supports the district
court’s conclusion. Zeifman, 212 S.W.3d at 587.
The record here includes sufficient evidence for the district court to exercise its
discretion and conclude that Vences had not met his burden to show extrinsic fraud. Robledo
testified that at the time of the proceedings in 2008 and 2009, she did not know where Vences
lived notwithstanding her “due diligence” to find him. She testified that she asked the trial court
to effect service of process on Vences’s sister, whom Robledo was able to locate, and that she
provided an affidavit in support of that request. See Tex. R. Civ. P. 109 (governing service by
publication), 109a (allowing substitute service where service by publication is authorized and
requesting party executes affidavit in support of substitute service). Vences’s sister testified and
acknowledged that in 2008 she often received her brother’s mail but said she was not certain
whether she had ever received the petition in question. The record, however, reflects that she
accepted service on February 27, 2008. Vences testified and conceded that he essentially lived
“in the streets” at the time but disputed Robledo’s characterization of her awareness of his
whereabouts, testifying that Robledo knew how to contact him and could have done so if she had
tried. Yet the district court—as the “sole arbiter” of the evidence, see In re A.B., 437 S.W.3d 498,
503 (Tex. 2014)—could have discredited his testimony in favor of Robledo’s testimony that she
had made reasonable efforts to locate Vences. On this record, we cannot say that no substantive,
probative evidence supports the district court’s conclusion that Vences failed to establish
extrinsic fraud. See Okon v. Boldon, No. 02-14-00334-CV, 2015 WL 4652775, at *5 (Tex.
App.—Fort Worth Aug. 6, 2015, no pet.) (mem. op.) (affirming denial of untimely petition for
bill of review after explaining “the trial court could have reasonably resolved conflicting
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evidence presented by the parties to find that no person intended to deceive appellant or prevent
him from knowing about the suit”). As a consequence, there was no abuse of discretion.
CONCLUSION
Because Vences has not shown that the district court abused its discretion in
denying his petition for bill of review, we affirm its denial order. We dismiss as moot his motion
to consolidate this appeal with another cause.
__________________________________________
Edward Smith, Justice
Before Justices Goodwin, Triana, and Smith
Affirmed
Filed: August 27, 2020
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