Yancy McCurdy, Christina McCurdy, and Darlene G. Handley v. Rudy Oeftering, Oeftering, Inc., Nobility Village Mobile Home Park, and Texas Shade Mobile Home Park

Appellants appeal from a summary judgment dismissing their bill of review claim in favor of appellees. In two issues, appellants contend the trial court erred by: (1) granting summary judgment when appellants presented evidence sufficient to raise a genuine issue of material fact; and (2) rejecting appellants’ bill of review when appellants proved they did not receive proper notice pursuant to rule 165a of the Texas Rules of Civil Procedure. We overrule both issues and affirm the trial court’s judgment.

In their first issue, appellants assert the trial court erred in granting appellees’ motion for summary judgment because they established a genuine issue of fact. Specifically, appellants maintain, as to the merits of the bill of review, that they actively pursued their case and that they announced readiness for trial. We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172,

175 (Tex. App.––Dallas 2000, pet. denied).

After a trial court loses plenary power, a 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). A bill of review is an independent, equitable action brought by a party to a former action

seeking to set aside a judgment that is no longer appealable or subject to a motion for a new trial

or appeal. Transworld Fin. Serv. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). Generally,

a party seeking to invoke a bill of review must plead and prove (1) a meritorious claim or

defense to the cause of action that supports the judgment; and (2) that he was prevented from

making the claim or defense by fraud, accident or the wrongful act of the opposing party; (3)

unmixed with any fault or negligence of his own. Ortega v. First RepublicBank Fort Worth,

N.A., 792 S.W.2d 452, 453 (Tex. 1990). “If a motion to reinstate, motion for new trial, or direct

appeal is available, it is hard to imagine any case in which failure to pursue one of them would

not be negligence.” Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004); see also Wembley Inv. Co.

v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). Thus, a litigant who permits the judgment to

become final by failing to invoke the right to appeal is not entitled to bill of review relief. See

French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967); Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex.

1980).

Under certain circumstances, a bill of review petitioner may be excused from proving one

or more of these requirements. When a judgment is rendered without proper notice, the

meritorious claim or defense requirement is excused. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.

1988). To the extent the bill of review petitioner has been injured by reliance on a mistake of or

erroneous information from an official court functionary, he is excused from showing the

wrongful conduct, fraud, or accident of the opposing party. See Transworld Fin. Serv. Corp., 722

S.W.2d at 408. The bill of review petitioner, however, still must show his failure to file a motion

for new trial or appeal was not due to any fault or negligence on his part. See Petro-Chemical

Transp., Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex. 1974).

Here, the trial court dismissed appellants’ case for want of prosecution on September 13,

2013. Appellants filed a motion to reinstate their case on October 16, 2013. Although the record

indicates that the trial court denied their motion to reinstate, appellants do not contend, nor does

the record show, that they filed any motion for new trial or appealed the denial of their motion to

reinstate. The order denying a motion to reinstate is an appealable order. See Welborn v. Ferrell

Enterprises, Inc., 376 S.W.3d 902, 905 (Tex. App.—Dallas 2012, no pet.); Franklin v. Sherman

Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.—Dallas 2001, pet. denied).

Because appellants failed to pursue all adequate legal remedies when they did not appeal

the denial of his motion to reinstate, appellants could not plead and prove the third element of a

bill of review. The trial court properly granted summary judgment when appellants could not

plead and prove each element of their bill of review.

Accordingly, we affirm the trial court’s judgment.