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).
Defendant Entitled to Notice of Nonsuit Order Where Nonsuit Made Interlocutory Default Judgment a Final Judgment and started time period for filing motion for new trial
Clarendon Nat. Ins. Co. v. Thompson, 199 S.W.3d 482 (Tex.App.- Houston [1st Dist.] 2006, no pet) [bill of review case, defendant was entitled to separate notice of nonsuit order b/c that order made the judgment final; defendant did not have opportunity to file motion for new trial]
Challenge to Termination of Parental Rights by Bill of Review
In re MYW (Tex.App.- Houston [14th Dist.] Nov. 21, 2006)(Anderson) [bill of review, CPS, termination of parental rights] AFFIRMED: Justice Anderson Before Justices Anderson, Hudson and Guzman 14-06-00185-CV In the Interest of M.Y.W and C.C.W., Minor Children Appeal from 300th District Court of Brazoria County
Hatton v. Grigar (Tex.App.- Houston [14th Dist.] Nov. 21, 2006)(Mirabal)(by assignment) [bill of review, sanctions, NE-MSJ] AFFIRMED: Justice Mirabal Before Chief Justice Hedges, Justices Seymore and Mirabal 14-05-01053-CV John Hatton v. Daniel D. Grigar Appeal from 268th District Court of Fort Bend County
Parentage: Man adjudicated to be father by default judgment while in jail not entitled to challenge paternity issue by Bill of Review
Nelson v. Chaney (Tex.App--Houston 2006)(Keyes) [Bill of review to set aside paternity default judgment, summary judgment affirmed) AFFIRM TC JUDGMENT: Opinion by Justice Keyes (Before Justices Nuchia, Keyes and Hanks) 01-04-01058-CV Donald Nelson v. Evangeline Chaney Appeal from 312th District Court of Harris County (Judge Jim Squier) Petitioner’s attorney: Ronald G. Ray Respondent’s attorneys: Kathryn Marie Diaz, Rhonda Pressley, John B. Worley
Texas Supreme Court Dismisses Appeal of Order Setting Aside a False Prior Paternity Adjudication in a Divorce Decree Because Bill-of-Review Summary Judgment Did Not Adjudicate Biological Paternity and Was Thus Not a Final Appealable Judgment
Kiefer v. Touris (Tex. May 26, 2006) [Bill of review, set aside prior determination of paternity, nonpaternity; wife had child with another man while married, subsequent divorce decree adjudicated child as child of the marriage, trial court granted biological father’ s bill of review by summary judgment, set aside the parentage adjudication in the divorce decree, but did not enter a new adjudication of child’s parentage] 05-0651 TERRY KIEFER AND KELLY JO WOOD v. IOANNIS JOHN TOURIS AND DENNIS G. BREWER, JR. EX REL. A.K., A MINOR; from Dallas County; 10th district (10 03 00331 CV, ___ SW3d ___, 06 29 05) 2 petitions Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the Court reverses the court of appeals' judgment and dismisses the appeal for want of jurisdiction. Per Curiam Opinion (“In this case we consider whether a judgment in a bill of review proceeding that sets aside a parentage adjudication, but does not make a new parentage adjudication, is an appealable judgment. We conclude that it is not. “)(Mother had affair resulting in birth of child while married, then divorced; bio dad filed suit to establish his paternity)
Nabelek v. Bradford (Tex.App.–Houston 2006)(Guzman) [Bill of review, elements, requisites, BoR properly denied because of prior appeal, bill of review not a means to bring second appeal] AFFIRMED: Opinion by Justice Eva Guzman Before Chief Justice Hedges, Justices Brock Yates and Guzman 14-04-01177-CV Ivo Nabelek v. C.O. Bradford, et al Appeal from 129th District Court of Harris County
Lloyd v. Crosby ISD (Tex.App.- Houston [14th Dist.] March 23, 2006)(Edelman) [school law, civil procedure, bill of review, elements, prima facie, meritorious defense, not barred by law] AFFIRMED: Opinion by Justice Edelman Before Justices Anderson, Edelman and Frost 14-00-01517-CV Claude Hugh Lloyd, Jr. and Cassondra Jean Lloyd 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 Et Al Appeal from 157th District Court of Harris County (Hon. Medina)