law-bill of review | challenging a judgment when appeal is too late | no notice of judgment | late notice of judgment &
extension of deadlines for filing of notice of appeal | defective service of citation or no service of citation |
BILL OF REVIEW PROCEEDINGS
A bill of review is an independent equitable action brought by a party to a former action seeking to set
aside a judgment, which is no longer appealable or subject to motion for new trial. Tex.R.Civ.P. 329b(f);
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004)(Caldwell II); King Ranch, Inc. v. Chapman, 118 S.W.
3d 742, 751 (Tex. 2003); Wembley Investment Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex. 1999);
Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998)(Caldwell I); State v. 1985 Chevrolet Pickup Truck,
778 S.W.2d 463, 464 (Tex. 1989); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979).
The bill must state sufficient cause. 1985 Chevrolet, 778 S.W.2d at 464. Ordinarily, to establish sufficient
cause, a defendant-petitioner must demonstrate: (1) a meritorious defense; (2) justification for the failure
to assert that defense; and (3) that the default judgement was not rendered due to the fault or
negligence of the defendant-petitioner. See Caldwell II, 154 S.W.3d at 96. The petitioner must normally
show that he exercised due diligence to assert all adequate legal remedies before filing the bill of review.
Caldwell I, 975 S.W.2d at 537. However, the absence of proper service alters the availability of a bill of
review. Where, as here, a defendant-petitioner claims a due-process violation (e.g., no effective service
of process), the defendant is not required to prove the first two elements of “sufficient cause” set out
above. See Caldwell II, 154 S.W.3d at 96-97; see Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108
S.Ct. 896, 99 L.Ed.2d 75 (1988)(judgment rendered without service violates due process); see also
Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988)(no need to prove meritorious defense where
defendant had no notice of trial setting).
Stated differently, when a defendant claims he was not served with process, he must only prove the third
element (i.e., no fault or negligence). Caldwell II, 154 S.W.3d at 97. The element is conclusively
established if the party proves he was not served. Id.; Caldwell I, 975 S.W.2d at 537; see Ross v.
National Center for the Employment of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006). This is true even
if a party becomes aware of the proceedings and fails to participate. A party who has acquired
knowledge but was not properly served has no duty to participate in the proceedings. Caldwell II, 154 S.
W.3d at 97 n.1; Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990)(“[M]ere knowledge of a pending suit
does not place any duty on a defendant to act.”). However, a meritorious defense must nevertheless be
shown when nonreceipt is uncorroborated or was the movant’s own fault. Fidelity & Guar. Ins. Co. v.
Drewery Construction Co, Inc., 186 S.W.3d 571, 574 (Tex. 2006).
WHAT IS A BILL OF REVIEW PROCEEDING ?
A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is
no longer subject to a challenge by motion for new trial or by appeal. Caldwell v. Barnes, 154 S.W.3d 93,
96 (Tex. 2004). A bill-of-review plaintiff claiming she was not served has the burden to prove that “the
judgment was rendered unmixed with any fault or negligence of [her] own.” Id. at 97. The plaintiff meets
this burden if she can prove she was never served with process. Id. It is a heavy burden: the testimony of
the plaintiff alone is not sufficient to overcome the presumption that she was served. Id. at 97, n.3 (citing
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)). We review the trial court's ruling on a
bill of review for an abuse of discretion, and we indulge every presumption in favor of that ruling.
Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex. App.-Austin 2000, pet. denied).
A bill of review is an equitable proceeding to set aside a judgment that 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). Although
it is an equitable proceeding, the fact that an injustice may have occurred is not sufficient to justify relief
by bill of review. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). A bill of review is
proper only where a party has exercised due diligence to pursue all adequate legal remedies against a
judgment and, at the time the bill is filed, there is no adequate legal remedy available because, through
no fault of the petitioner, extrinsic fraud, accident, or mistake precludes presentation of a meritorious
claim or defense. See King Ranch, 118 S.W.3d at 751-52.
BILL OF REVIEW - STATUTE OF LIMITATIONS & EXCEPTIONS THERETO
In general, a petition for bill of review must be filed within four years of the date of the judgment. See
Layton v. Nationsbanc Mortg. Corp., 141 S.W.3d 760, 763 (Tex. App.-Corpus Christi-Edinburg 2004, no
pet.). The only exception to this limitations period is when the petitioner proves extrinsic fraud. Id.
Accordingly, once the limitations period has passed, a showing of accident or mistake will no longer
Extrinsic fraud is fraud that denied the petitioner the opportunity to litigate fully all the rights or defenses
that could have been asserted at trial. See King Ranch, 118 S.W.3d at 752. Such fraud must be
purposeful in nature. See Layton, 141 S.W.3d at 763. There must be proof of some deception practiced
by the respondent, collateral to the issues in the case. See King Ranch, 118 S.W.3d at 753; Bakali v.
Bakali, 830 S.W.2d 251, 255 (Tex. App.-Dallas 1992, no writ).
To prevail on a collateral attack, [litigant] must show that the judgment is void on its face and extrinsic
evidence may not be used. See Toles v. Toles, 113 S.W.3d 899, 914 (Tex. App.-Dallas 2003, no pet.). A
judgment is void only if the court had no jurisdiction over the parties or property, no jurisdiction of the
subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. Id.
STANDARDS APPLICABLE TO A BILL OF REVIEW PROCEEDING INVOLVING DEFECTIVE SERVICE
Under those standards, [Defendant] was not required to prove any of the traditional elements required
for a bill of review, including: (1) a meritorious defense; (2) that was not asserted due to fraud, accident,
or wrongful act of an opponent or official mistake; or (3) unmixed with any fault or negligence of the
movant. See Ross v. Nat’l Ctr. for the Emp’t of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006).
Moreover, “[w]hile diligence is required from properly served parties or those who have appeared, those
not properly served have no duty to act, diligently or otherwise.” Id. at 798 (citations omitted).
Therefore, even assuming [Defendant] received actual notice of the default judgment in time to file a
motion for new trial or restricted appeal, he had no duty to act. Id. at 797-98. “Proper service is not a
technicality so easily discarded.” Id. at 797.
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