claude-hugh-lloyd-jr-and-cassondra-jean-lloyd-v-crosby-independent ( 2006 )

Affirmed and Memorandum Opinion filed March 23, 2006

Affirmed and Memorandum Opinion filed March 23, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-00-01517-CV

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CLAUDE HUGH LLOYD, JR. AND CASSONDRA JEAN LLOYD, Appellants

V.

CROSBY INDEPENDENT SCHOOL DISTRICT, LINDA LLOYD PETERS,

MARY BETH LLOYD, HARRIS COUNTY, HARRIS COUNTY EDUCATION DEPARTMENT, PORT OF HOUSTON OF HARRIS COUNTY AUTHORITY,

HARRIS COUNTY FLOOD CONTROL DISTRICT,

HARRIS COUNTY HOSPITAL DISTRICT, AND

HARRIS COUNTY EMERGENCY SERVICE DISTRICT NO. 5, Appellees

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On Appeal from 157th District Court

Harris County, Texas

Trial Court Cause No. 89‑38700

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M E M O R A N D U M O P I N I O N

Claude Hugh Lloyd, Jr. and Cassondra Jean Lloyd (the ALloyds@) appeal an order denying their motion for a bill of review on numerous grounds.  We affirm.

In 1989, Crosby Independent School District filed this suit for delinquent taxes against Claude Hugh Lloyd, Jr. and Cassondra Jean Lloyd, Linda Lloyd Peters, and Mary Beth Lloyd Angel,^[1] in which Harris County, Harris County Education Department, Port of Houston of Harris County Authority, Harris County Flood Control District, Harris County Hospital District, and Harris County Emergency Service District No. 5 (collectively Aappellees@) intervened.  In 1996, the trial court entered a judgment awarding recovery to appellees.  In October of 2000, almost four years later,^[2] the Lloyds filed a motion for bill of review, seeking to vacate the 1996 judgment.  The trial court held a hearing on the motion and denied the bill of review in November of 2000.^[3]

A bill of review is an equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).  Thus, with exceptions not applicable here,^[4] a bill of review petitioner must ordinarily plead and prove: (1) a meritorious defense^[5] to the cause of action alleged to support the original judgment, (2) that the petitioner was prevented from making by the fraud, accident or wrongful act of his or her opponent, (3) unmixed with any fault or negligence on his or her own part.  Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).  A bill of review petitioner must present prima facie proof of a meritorious defense in order for the trial court to conduct a trial on the remaining elements.  Id. at 97.  A trial court=s denial of a bill of review is reviewed for abuse of discretion.  See Rogers v. Searle, 544 S.W.2d 114, 115 (Tex. 1976).

In this case, because the issues discussed in the Lloyds=s brief do not mention or address any of the elements of a bill of review, let alone demonstrate that any were satisfied, their brief affords no basis to conclude that the trial court erred in denying the bill of review.  Accordingly, the Lloyds=s issues are overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 23, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

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^[1]           Linda Lloyd Peters and Mary Beth Lloyd Angel are not parties in this appeal.

^[2]           A bill of review must be filed within four years of the rendition of judgment.  See Tex. R. Civ. P. 329b(f); Tex. Civ. Prac. & Rem. Code Ann. ' 16.051 (Vernon 1997); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998).

^[3]           This case was abated from 2001 to 2005 because Claude Hugh Lloyd, Jr. petitioned for voluntary bankruptcy in the United States Bankruptcy Court.

^[4]           If the petitioner was not served, constitutional due process relieves him of showing a meritorious defense and that the other party=s fraud, accident or wrongful act prevented him from presenting such a defense, but he must still prove that the judgment was rendered unmixed with any fault or negligence of his own.  Caldwell v. Barnes, 156 S.W.3d 93, 96-7 (Tex. 2004).

^[5]           A party establishes a meritorious defense when it proves that: (1) its defense is not barred as a matter of law, and (2) it will be entitled to judgment on retrial if no evidence to the contrary is offered.  Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979).