Affirmed and Memorandum Opinion filed April 6, 2006.

 

 

In The

 

Fourteenth Court of Appeals

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NO. 14-04-01177-CV

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IVO NABELEK, Appellant

 

V.

 

C.O. BRADFORD, Appellee

 

 

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 04-14922

 

 

M E M O R A N D U M   O P I N I O N

Appellant, Ivo Nabelek (ANabelek@), appeals the denial of his petition for bill of review.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Factual and Procedural History

In 1999, Nabelek filed suit against C. O. Bradford (ABradford@) and the City of Houston, seeking, inter alia, recovery of personal property seized by the police in connection with Nabelek=s arrest for aggravated sexual assault of a child and possession of child pornography.  The trial court granted summary judgment in favor of Bradford and the City on January 16, 2001.  Nabelek appealed, and the judgment was affirmed.  Nabelek v. Bradford, No. 14-01-00240-CV, 2002 WL 1438662 (Tex. App.CHouston [14th Dist.] August 22, 2002, pet. denied) (memo op.), cert. denied, 540 U.S. 802 (2003).

On March 24, 2004, Nabelek filed a petition for bill of review, seeking review of the same summary judgment that was the subject of his prior appeal.^[1]  The trial court denied and dismissed Nabelek=s petition with prejudice on October 18, 2004, and this appeal ensued.

II.  Issues

The trial court denied Nabelek=s petition for bill of review on the grounds that the claims he presented had already been timely appealed.  Nabelek contends the trial court abused its discretion in denying his petition for bill of review because (1) the express terms of Texas Rule of Civil Procedure 329b do not prohibit a bill of review after the petitioner has timely appealed the case, and (2) a bill of review remains available after all appeals have been exhausted if the appellate courts failed to address an issue raised by the petitioner in his timely appeal.  Because the position urged by Nabelek is contrary to existing law, we affirm.

III.  Standard of Review

In reviewing the grant or denial of a bill of review, we will not disturb the trial court=s ruling absent an abuse of discretion.  Interaction Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.CAustin 2000, pet. denied).  A trial court abuses its discretion if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991).

IV.  Analysis

A bill of review is an equitable proceeding by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial.  Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979).  A bill of review complainant must prove three elements: (1) a meritorious claim or defense; (2) that he was prevented from asserting by the fraud, accident, or wrongful act of his opponent or by official mistake; and (3) the absence of fault or negligence of the complainant.  Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); Nichols v. Jack Eckerd Corp., 908 S.W.2d 5, 8 (Tex. App.CHouston [1st Dist.] 1995, no writ).  Though these elements are not recited in Rule  329b, Nabelek acknowledged in his petition for bill of review that he was required to prove each of these elements in order for his petition to be granted.  Nevertheless, Nabelek argues on appeal that the trial court=s denial of his petition was an abuse of discretion because Rule 329b does not expressly prohibit a bill of review after the petitioner has timely appealed the case.

This argument is without merit.  Rule 329b, addressing the time for filing motions, states that after the trial court loses its plenary power, Aa judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law . . . .@  Tex. R. Civ. P. 329b(f).  In other words, the rule explains that a judgment can be set aside by a bill of review under certain conditions constituting Asufficient cause,@ but it does not identify those conditions.   To learn what constitutes Asufficient cause,@ we must turn to case law.  It is in the case law, as Nabelek implicitly acknowledges, that we find the three elements that a petitioner must prove in order to succeed.  Nabelek has not established the three required elements.  We therefore overrule Nabelek=s first issue.

The trial court correctly concluded that Nabelek would be unable to prove the second of the three required elements.  Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party.  Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam).  Although Nabelek diligently pursued all adequate legal remedies, he has not been prevented from asserting his claims or defenses.  To the contrary, he has in fact asserted them before the trial court and the appellate court.   In his appellate brief, Nabelek concedes that he is complaining of the same errors with the same arguments that he addressed to this court during the prior appeal.  A bill of review may not be used as an additional remedy by a litigant who has made a timely but unsuccessful appeal.  See Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980); McIntyre v. Wilson, 50 S.W.3d 674, 679 (Tex. App.CDallas 2001, pet. denied).  We therefore overrule Nabelek=s second issue.

V.  Conclusion

Because Nabelek=s petition for bill of review attempts to re-litigate a timely but unsuccessful appeal in contravention of settled law, we affirm the judgment of the trial court.

 

 

 

 

 

 

/s/      Eva M. Guzman

Justice

 

 

 

 

Judgment rendered and Memorandum Opinion filed April 6, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.