peggy-blakely-v-mortgage-electronic-registration-systems-chase-manhattan ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00341-CV
PEGGY BLAKELY,
Appellant
v.
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, CHASE MANHATTAN MORTGAGE
CORPORATION, STEPHEN J. ROTELLA,
BARRETT BURKE WILSON CASTLE DAFFIN &
FRAPPIER, LLP AND JACK O'BOYLE,
Appellees
From the 40th District Court
Ellis County, Texas
Trial Court No. 78427
MEMORANDUM OPINION
Peggy Blakely appeals from two orders granting summary judgments in favor of
Mortgage Electronic Registration Systems and Chase Home Finance LLC (formerly
Chase Manhattan Mortgage Corporation), (MERS), and Barrett Daffin Frappier Turner
& Engle, LLP (formerly Barrett Burke Wilson Castle Daffin & Frappier, LLP), (Barrett).
Because Blakely is not entitled to the remedy of a bill of review, the trial court’s orders
are affirmed.
BACKGROUND
Blakely brought an action in 2007 for wrongful foreclosure. Summary judgment
was granted in favor of the defendants to that suit and an order was signed on March
27, 2008. Blakely did not appear at the summary judgment hearing. A document,
which includes a cover letter and an affidavit and appears on its face to be from Blakely,
was filed with the Ellis County District Clerk on April 15, 2008. In the affidavit, Blakely,
acting as her own attorney, requested and demanded the district clerk to “rescind, null,
and void” the March 27 judgment. No action was taken on the demand. No other
documents were filed challenging the summary judgment until April of 2009 when
Blakely filed a separate petition for a bill of review, the subject of this appeal. MERS
and Barrett filed separate motions for summary judgment. In those motions, both
argued that Blakely was not entitled to a bill of review because Blakely previously had a
remedy by appeal from the 2008 judgment. MERS’s and Barrett’s motions for summary
judgment were granted. Blakely timely filed a notice of appeal.
BILL OF REVIEW
We begin by addressing Blakely’s third issue. In that issue, Blakely queries
whether the trial court abused its discretion by granting summary judgment when
Blakely had filed a document which should have been considered as a motion for new
trial or a notice of appeal. MERS and Barrett respond that summary judgment was
proper because Blakely was not entitled to relief by a bill of review.
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A bill of review is an equitable action brought by a party to a previous suit
seeking to set aside a judgment which is no longer appealable or subject to a motion for
new trial. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A bill of
review is proper where a party has exercised due diligence to prosecute all adequate
legal remedies against a former judgment and, at the time the bill of review is filed,
there remains no adequate legal remedy available through no fault of the proponent.
Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979). One with an available appeal who
fails to pursue that remedy is not entitled to seek relief by way of a bill of review. Rizk
v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980); French v. Brown, 424 S.W.2d 893 (Tex. 1967).
Blakely had a remedy by appeal and failed to pursue it. The order granting the
motion for summary judgment was signed on March 27, 2008. The record shows that
Blakely knew about the order by at least April 11, 2008 because a document signed by
Blakely and dated the same date was filed by the district clerk on April 15, 2008. The
document was filed well within the timeframe to file a motion for new trial or a notice
of appeal. TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 26.1. In response to MERS’s and
Barrett’s motions for summary judgment, Blakely contended that the April 11
document was a motion for new trial. If that document was intended to be a motion for
new trial, a determination we do not make, it was overruled by operation of law on
June 10, 2008. Had Blakely believed that she filed a motion for new trial, she could have
then filed a notice of appeal by June 25, 2008. TEX. R. APP. P. 26.1(a). She did not.
This set of facts is very similar to the facts of French v. Brown, 424 S.W.2d 893
(Tex. 1967). In French, a summary judgment was granted against Brown. Although
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neither Brown nor his attorney were present at the hearing, Brown received notice of
the order and timely filed a motion for new trial. The motion was overruled by
operation of law, but Brown did not pursue an appeal. Brown then filed a bill of review
which was denied. On review, the Texas Supreme Court determined that because
Brown did not appeal within the proper timeframe after he filed a motion for new trial,
a bill of review of the order granting summary judgment was not an available remedy.
Id. at 895.
On appeal, Blakely also argues that the April 11 document was a notice of
appeal. This argument was not made to the trial court in response to MERS’s and
Barrett’s motions for summary judgment. Therefore, it is not preserved for our review.
TEX. R. APP. P. 33.1; TEX. R. CIV. P. 166a(c); State Bd. of Ins. v. Westland Film Industries, 705
S.W.2d 695, 696 (Tex. 1986).
Because Blakely did not timely pursue an appeal, she is not entitled to relief
through a bill of review. Accordingly, the trial court did not abuse its discretion in
granting both motions for summary judgment. Blakely’s third issue is overruled.
CONCLUSION
Having determined that Blakely is not entitled to relief through a bill of review,
we need not discuss Blakely’s remaining issues. See French v. Brown, 424 S.W.2d 893,
895 (Tex. 1967). The trial court’s orders are affirmed.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed June 23, 2010
[CV06]
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