Office of the Attorney General v. Christopher Brian Scott ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00316-CV
OFFICE OF THE ATTORNEY APPELLANT
GENERAL
V.
CHRISTOPHER BRIAN SCOTT APPELLEE
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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 360-553178-14
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MEMORANDUM OPINION 1
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Appellant Office of the Attorney General appeals the trial court’s judgment
dismissing appellant’s petition for bill of review. In one issue, appellant contends
that the trial court erred by granting appellee Christopher Brian Scott’s no-
1
See Tex. R. App. P. 47.4.
evidence motion for summary judgment. We reverse the judgment and remand
this case to the trial court.
Background Facts 2
In 2006, appellant filed a lawsuit against appellee and another party
concerning child support obligations. In April 2008, the trial court included that
suit on a list of cases that would be dismissed for want of prosecution “unless
there [was] good cause for the case to be maintained on the docket.” The April
2008 notice stated that each case on the list would be dismissed unless a party
filed a motion to retain its suit prior to the dismissal date, which was May 21,
2008.
On May 21, 2008, the trial court, in one order, dismissed several cases,
including appellant’s case. The May 2008 dismissal order stated, “After due
notice as required by the rules of civil procedure as amended, it is the order and
decree of the court that [the] following causes of action be dismissed for want of
prosecution . . . .” Neither the April 2008 notice nor the May 2008 order listed
appellant as a named party to the suit being dismissed; instead, those
documents referred to appellee and the other party who were respondents to
appellant’s original suit.
2
The facts recited in this section include uncontroverted procedural
allegations made by appellant in the trial court and on appeal. We note that
appellee has not filed a brief in this appeal.
2
In March 2014, appellant filed a petition for bill of review. 3 Appellant
alleged that it had never received notice of the trial court’s intent to dismiss the
prior action for want of prosecution, therefore violating its right to due process. 4
Appellant also alleged that it did not receive notice of the trial court’s May 2008
dismissal order until May 2013, which was long after appellant could file a motion
to reinstate or a motion for new trial. In summary, appellant contended that it
“had no notice of the Court’s intent to dismiss for want of prosecution . . . or the
Order of Dismissal within an adequate time to pursue alternative legal remedies,
and . . . the lack of notice was not because of its own fault or negligence.” As
relief, appellant asked the trial court to grant the bill of review and set aside the
May 2008 order. The second respondent to the original suit filed a letter in June
2014 to inform the court that she had no objection to appellant’s petition for bill of
review.
3
A bill of review is an equitable action brought by a party to a prior action
who seeks to set aside a judgment that is no longer appealable or subject to a
motion for new trial. See Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809,
812 (Tex. 2012) (describing the elements that a bill-of-review plaintiff must plead
and prove). We do not intend to opine about whether appellant will ultimately be
entitled to relief on its petition for bill of review; we conclude below only that the
trial court erred by granting appellee’s motion for summary judgment and by
dismissing appellant’s petition on that basis.
4
See Tex. R. Civ. P. 165a (“Notice of the court’s intention to dismiss and
the date and place of the dismissal hearing shall be sent by the clerk to each
attorney of record . . . by posting same in the United States Postal Service.”).
3
Appellee answered appellant’s petition by pleading a general denial,
several specific denials, and affirmative defenses. Appellee also filed a no-
evidence motion for summary judgment. In the motion, appellee solely asserted,
1. There is no evidence of one or more of the following
elements of lack of notice of the dismissal setting . . . on which
[appellant] has the burden of proof at trial.
a. That the [appellant] did not receive notice of
the dismissal setting.
2. [Appellee] claims [appellant] cannot produce evidence of
lack of notice of the dismissal setting.
Appellant responded to appellee’s motion by contending that it could prove
that it did not receive the April 2008 dismissal notice. To its response, appellant
attached affidavits by two of its employees, Cheryl Lewis and Lydia Leal. 5
Lewis’s affidavit stated in part,
I am a Child Support Officer - Financial Specialist with the
Office of the Attorney General of Texas, Child Support Division. I
am a custodian of records for the Child Support Division of the Office
of the Attorney General of Texas . . . .
....
I have reviewed the business records of the Office of the
Attorney General for [the original suit filed by appellant]. They were
kept in the regular course of the business of the Office of the
Attorney General, and it was in the regular course of business of the
Office of the Attorney General for an employee or representative of
the Office of the Attorney General, with knowledge of the act, event,
condition, opinion, or diagnosis, recorded to make the record or to
5
Appellant also attached an affidavit from an assistant attorney general,
who stated that he had asked the district clerk to provide an affidavit about what
occurred in 2008 but that the district clerk had declined to do so.
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transmit information thereof to be included in such record . . . at or
near the time or reasonably soon thereafter.
I am familiar with the Office of the Attorney General’s
procedures and processes regarding notices from courts of intent to
dismiss for want of prosecution in 2008. The process of handling
such notices would have been to record the receipt of the notice on
the computer system, note the date of dismissal, and route the
notice to an Assistant Attorney General.
I can find no indication that the Office of the Attorney General
ever received notice from the clerk of this Court of the intent to
dismiss this case for want of prosecution, on or about April 2, 2008.
I can find no indication that the Office of the Attorney General ever
received notice from the clerk of this Court of the dismissal of this
case for want of prosecution, on or about May 27, 2008.
....
I am familiar with the discovery by the Office of the Attorney
General of the dismissal of this case for want of prosecution. On or
about May 6, 2013, I met with [appellee]. At that time he advised me
that the case had been dismissed for want of prosecution in 2008.
Similarly, Leal’s affidavit explained,
I am a Child Support Officer with the Office of the Attorney
General of Texas, Child Support Division. I am a custodian of
records for the Child Support Division of the Office of the Attorney
General of Texas . . . .
....
I have reviewed the business records of the Office of the
Attorney General for [the original suit]. . . . I can find no record of the
Office of the Attorney General ever [receiving] notice from the clerk
of this Court of the intent to dismiss this case for want of
prosecution, either before or after April 2, 2008. I can find no record
of the Office of the Attorney General ever [receiving] notice from the
clerk of this Court of the dismissal of this case for want of
prosecution, either before or after May 27, 2008.
In April and May of 2008, I was assigned to the Legal Support
function of the Northeast Tarrant County office (Office 906) of the
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Office of the Attorney General’s Child Support Division. As such, I
was responsible for processing notices from courts of intent to
dismiss for want of prosecution at that time, and notices of dismissal
for want of prosecution. The process of handling such notices would
have been to record the receipt of the notice on the computer
system under the case, note the date of dismissal, and route the
notice to an Assistant Attorney General.
I do not recall ever seeing any notice from the clerk of this
Court of the intent to dismiss this case for want of prosecution . . . on
or about April 2, 2008. I do not recall ever seeing any notice from
the clerk of this Court of the dismissal of this case for want of
prosecution . . . on or about May 27, 2008.
Appellee did not file a reply in the trial court to address whether the
affidavits that appellant filed were sufficient to survive the motion for summary
judgment. The trial court granted appellee’s motion for summary judgment and
dismissed appellant’s petition for bill of review. Appellant brought this appeal.
Propriety of Summary Judgment
Appellant contends that the trial court erred by granting appellee’s no-
evidence motion for summary judgment. After an adequate time for discovery,
the party without the burden of proof may, without presenting evidence, move for
summary judgment on the ground that there is no evidence to support an
essential element of the nonmovant’s claim. Tex. R. Civ. P. 166a(i). The motion
must specifically state the elements for which there is no evidence. Id.; Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant
the motion unless the nonmovant produces summary judgment evidence that
raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
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When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that raises
a genuine issue of material fact, then a no-evidence summary judgment is not
proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
Appellant contends that its employees’ affidavits raise at least a genuine
issue of material fact on the sole issue raised by appellee’s motion for summary
judgment: whether in April 2008, appellant received notice of the trial court’s
intent to dismiss the original suit. Examining the affidavits in the light most
favorable to appellant’s position, we agree. See Sudan, 199 S.W.3d at 292.
The affidavits, taken together, produce more than a scintilla of evidence
that appellant did not receive the April 2008 notice because they state that
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appellant keeps records related to such notices in the regular course of business,
that appellant has a process of documenting and archiving receipt of such
notices, that the receipt of a notice in April 2008 related to the prior case was not
archived, and that the employee responsible for receiving and processing such
notices does not remember receiving and processing the notice related to this
case. We conclude that under the circumstances of this case, the negative
evidence about what appellant does not have archived and about what its
employee does not remember produces a positive inference, sufficient to survive
a no-evidence motion for summary judgment, that appellant did not receive the
notice. Cf. Hampton v. State, 109 S.W.3d 437, 441 n.3 (Tex. Crim. App. 2003)
(stating that the absence of a record may be evidence when someone would
expect to find the record within a repository if it existed); Sudduth v.
Commonwealth Cnty. Mut. Ins. Co., 454 S.W.2d 196, 197–98 (Tex. 1970)
(holding that a plaintiff’s testimony that she did not receive a letter created a
genuine issue of material fact, sufficient to defeat a motion for summary
judgment, that the defendant did not send the letter); Guerra v. Wal-Mart Stores,
Inc., 943 S.W.2d 56, 60 (Tex. App.—San Antonio 1997, writ denied) (concluding
that a jury could infer that no accident occurred in a store from evidence that the
store maintained records concerning accidents and that the store could not
locate a record of the plaintiff’s alleged accident); Gross v. State, 624 S.W.2d
287, 289 (Tex. App.—Fort Worth 1981, pet. ref’d) (holding that in a criminal case
in which a defendant was charged with unlawfully practicing dentistry, a list of
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licensed dentists that did not contain the defendant’s name was sufficient
evidence to show that the defendant was not licensed).
Considering the entire record in the light most favorable to appellant and
indulging every reasonable inference against appellee’s no-evidence motion for
summary judgment, we hold that the evidence is sufficient to raise a genuine
issue of material fact concerning whether appellant received notice in 2008 of the
trial court’s intent to dismiss the prior case for want of prosecution. See Sudan,
199 S.W.3d at 292. Thus, we conclude that the trial court erred by granting
appellee’s no-evidence motion for summary judgment, and we sustain
appellant’s only issue. See Smith, 288 S.W.3d at 424; Sudan, 199 S.W.3d at
292; see also Hall v. RDSL Enters. LLC, 426 S.W.3d 294, 304 (Tex. App.—Fort
Worth 2014, pet. denied) (reversing a summary judgment when the nonmovant
presented “more than a scintilla of probative evidence that raised a genuine issue
of material fact”).
Conclusion
Having sustained appellant’s only issue, we reverse the trial court’s
judgment and remand this case to the trial court for further proceedings.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DELIVERED: July 2, 2015
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