Melvin R. Hassell v. John C. Wilhite ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Melvin R. Hassell

Appellant

Vs.                   No. 11-05-00106-CV -- Appeal from Eastland County

John C. Wilhite

Appellee

Melvin R. Hassell and Morton Valley Oil & Gas, Inc. brought a bill of review against John C. Wilhite challenging the February 20, 2002, judgment entered in favor of Wilhite and against Hassell and Morton Valley.  The trial court granted Wilhite=s second motion for summary judgment and entered a judgment that Hassell and Morton Valley take nothing.  Hassell perfected this appeal.  We affirm.

In his brief, Hassell challenges the trial court=s impartiality and its ability to follow the law in the handling of this suit. Hassell argues that Wilhite and his counsel have acted improperly.  Hassell also argues that the 2002 judgment is void.

A bill of review is a unique equitable remedy attacking a final judgment;  and, as such, Texas law provides that the remedy is available in limited situations.  A bill of review is used as an attempt to set aside a judgment that is not void on the face of the record and is no longer subject to a direct appeal or a motion for new trial.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex.2003).  Therefore, the grounds upon which a bill of review may be obtained are narrow.  King Ranch, Inc. v. Chapman, supra.

The Texas Supreme Court in  Alexander v. Hagedorn, 226 S.W.2d 996 (Tex.1950), announced the general rules for a bill of review and explained why a bill of review is appropriate only in exceptional circumstances:

Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts;  therefore, bills of review seeking relief from judgments Aare always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted@; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done.   Harding v. W.L. Pearson & Co. et al., Tex.Com.App., 48 S.W.2d 964. 

Alexander v. Hagedorn, supra at 998; see also King Ranch, Inc. v. Chapman, supra.

The law in Texas is well‑settled concerning when a bill of review is appropriate.   Tice v. City of Pasadena, 767 S.W.2d 700 (Tex.1989)(orig. proceeding); Transworld Financial Services Corporation v. Briscoe, 722 S.W.2d 407 (Tex.1987); Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984); Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979); Petro‑Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974); Alexander v. Hagedorn, supra.  A bill of review is an independent equitable attack on a judgment which has become final because the time for filing a motion for new trial or for appealing the judgment has passed, and it is brought by a party to the final judgment.  Tice v. City of Pasadena, supra; Transworld Financial Services Corporation v. Briscoe, supra; Montgomery v. Kennedy, supra; Baker v. Goldsmith, supra; Alexander v. Hagedorn, supra.  In order to successfully attack the final judgment, the petitioner must allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment (2) which the petitioner was prevented from making by fraud, accident, or wrongful act of the opposite party (3) unmixed with any fault or negligence of the petitioner.  King Ranch, Inc. v. Chapman, supra; Tice v. City of Pasadena, supra;  Transworld Financial Services Corporation v. Briscoe, supra; Montgomery v. Kennedy, supra; Baker v. Goldsmith, supra; Petro‑Chemical Transport, Inc. v. Carroll, supra;  Alexander v. Hagedorn, supra.

The trial court=s 2002  judgment held that Hassell and Morton Valley recorded in the official public records of Eastland County five ACommon Law Liens,@ that these five Aliens@ indicated that liens were asserted against real property owned by Wilhite, that these five Aliens@ were void as a matter of law and had no basis in law or fact, and that the Aliens@ were recorded with the intent either to cause Wilhite financial injury or to appropriate Wilhite=s property.  The 2002 judgment awarded Wilhite damages against Hassell and Morton Valley. 

In his petition for bill of review, Hassell attacked the 2002 default judgment on the grounds that (1) Hassell had no notice of any trial or hearing, (2) Hassell had timely mailed his answer to Wilhite=s petition, (3) Wilhite=s petition failed to invoke the jurisdiction of the trial court, (4) Hassell=s failure to timely file his answer was due to a mistake or an accident in his reliance on the United State=s Postal Service to deliver his answer, and (5) Hassell had a meritorious defense in that Wilhite had failed to state a claim and in that Wilhite had no standing. In his second motion for summary judgment, Wilhite moved for summary judgment on the basis that Hassell had failed to allege proper grounds to support a bill of review. 

A motion for summary judgment is an appropriate vehicle to challenge whether the proponent of a bill of review has adequately established that he has met the specific and limited requirements to be eligible for the extraordinary equitable remedy of a bill of review.  Ortega v. First RebulicBank Fort Worth, N.A., 792 S.W.2d 452 (Tex.1990); Nelson v. Williams, 135 S.W.3d 202 (Tex.App. - Waco 2004, pet=n den=d); Richardson v. Zurich Insurance Co., Inc., 27 S.W.3d 39 (Tex. App. - San Antonio 2000, pet=n den=d); Palomin v. Zarsky Lumber Co., 26 S.W.3d 690 (Tex.App. - Corpus Christi 2000, pet=n den=d). In order to determine if the trial court erred in granting the motion for summary judgment, we must consider the summary judgment evidence in the light most favorable to the non-movant indulging all reasonable inferences in favor of the non-movant and determine whether the movant proved that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.  Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). If the movant in a traditional motion for summary judgment establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, then the trial court must grant the motion. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).  The trial court must also grant a traditional motion for summary judgment if the defendant conclusively negates at least one element of the plaintiff=s cause of action or prevails on a defense for each of the plaintiff=s claims.  American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997).  Upon review of a traditional motion for summary judgment, we take as true evidence favorable to the non-movant indulging in every reasonable inference and resolving any doubt in the favor of the non-movant.  American Tobacco Company, Inc. v. Grinnell, supra at 425.

The summary judgment evidence reflects that the trial court did not err in granting the motion for summary judgment.  Hassell did not assert a meritorious defense.  The 2002 judgment on its face is not void and it establishes that Wilhite had standing to sue:  Wilhite sued Hassell and Morton Valley attempting to remove the Aliens@ that Hassell and Morton Valley had filed on real property owned by Wilhite. Further, Hassell failed to allege that he was prevented from asserting a meritorious defense by extrinsic fraud, accident, or wrongful act on the part of Wilhite totally unmixed with any fault or negligence on his part as required under Texas law.  King Ranch, Inc. v. Chapman, supra; Tice v. City of Pasadena, supra; Transworld Financial Services Corporation v. Briscoe, supra; Montgomery v. Kennedy, supra; Baker v. Goldsmith, supra; Petro‑Chemical Transport, Inc. v. Carroll, supra; Alexander v. Hagedorn, supra.

All of Hassell=s arguments have been submitted and considered by this court.  Each is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

September 29, 2005

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of:  Wright, J. and McCall, J.^[1]

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^[1]W. G. Arnot, III, Chief Justice, retired effective July 31, 2005.  The chief justice position is vacant.