Amer v. Rozicki

HALID AMER, Appellant

v.RICHARD ROZICKI, Appellee

No. 05-09-01244-CV

Court of Appeals Fifth District of Texas at Dallas

DISMISS and Opinion Filed March 16, 2011

File Date: 03/16/2011

On Appeal from the 44th District Court

Dallas County, Texas

Trial Court Cause No. 08-11469-B

MEMORANDUM OPINION

Before Justices Richter, Lang, and Murphy

Opinion By Justice Richter

On September 9, 2009, appellant Halid Amer filed a petition for bill of review, complaining that he did not receive a copy of the judgment in the underlying case in time to contest the judgment by motion for new trial or notice of appeal. Appellee Richard Rozicki filed an answer to Amer's petition. The trial court conducted a preliminary hearing and on July 28, 2009, signed an order dismissing Amer's petition for bill of review. On August 19, 2009, Amer filed an untimely request for findings of fact and conclusions of law. Rozicki objected to Amer's request on the basis that a trial court decides a Baker hearing as a matter of law. See Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979). Therefore, according to Rozicki, findings of fact and conclusions of law would be improper and would not extend the time within which to file a notice of appeal. See Tex. R. App. P. 26.1(a)(4). On September 9, 2009, the trial court signed an order sustaining Rozicki's objection and denying Amer's request for findings of fact and conclusions of law. On September 25, 2009, Amer filed his notice of appeal.

After reviewing the record, this Court questions whether it has jurisdiction over Amer's appeal. A timely request for findings of fact and conclusions of law will extend the time within which to file a notice of appeal “if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court.” Id. Absent a timely and effective request for findings of fact and conclusions of law, Amer's notice of appeal was due by August 27, 2009.

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. See Tex. R. Civ. P. 329b(f); see also Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (citing Baker, 582 S.W.2d at 406). It has long been the rule that a party seeking to invoke a bill of review to set aside a final judgment must prove three elements: (1) a meritorious defense to the cause of action alleged to support the judgment; (2) an excuse justifying the failure to make that defense which is based on the fraud, accident, or wrongful act of the opposing party, or by official mistake; and (3) an excuse unmixed with any fault or negligence of the petitioner. Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex. 1964); Moseley v. Dallas County Child Prot. Servs., 110 S.W.3d 658, 661 (Tex. App.-Dallas 2003, pet. denied). The elements vary somewhat depending on whether the bill-of-review plaintiff actually participated in the underlying litigation. The traditional elements apply when the petitioner did not participate in the trial of the underlying cause or for some reason was prevented from presenting the alleged meritorious claim or defense during the trial. In a case where the parties have participated at trial and the losing party has been prevented from filing a motion for new trial or perfecting an appeal, the petitioner must plead and prove: (1) a failure to file a motion for new trial or a failure to advance an appeal; (2) caused by the fraud, accident, or wrongful act of the opposing party or by an official mistake; (3) unmixed with any fault or negligence on the petitioner's part; and (4) a meritorious ground of appeal. See Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974); see alsoRamsey v. State, 249 S.W.3d 568, 573 (Tex. App.-Waco 2008, no pet.); San Patricio County v. Nueces County, 214 S.W.3d 536, 544 (Tex. App.-Corpus Christi 2006, no pet.). In lieu of establishing a meritorious claim or defense with regard to the underlying claim, a bill-of-review plaintiff in this scenario must establish a meritorious ground for new trial or appeal. Petro-Chemical Transport, 514 S.W.2d at 245 (quoting Overton v. Blum, 50 Tex. 417, 426 (1878)); see also Ramsey, 249 S.W.3d at 573; McDaniel v. Hale, 893 S.W.2d 652, 664 (Tex. App.-Amarillo 1994, writ denied) (“[i]n such a situation, a meritorious defense means 'a meritorious ground of appeal'”).

In Baker v. Goldsmith, the Texas Supreme Court reiterated the elements and outlined the trial procedure to be utilized for bills of review. Baker, 582 S.W.2d at 408. In order to assure that valuable court time is not wasted by conducting a spurious “full-blown” examination of the merits, the petitioner must present prima facie proof of a meritorious ground on appeal as a pre-trial matter. Id.; see also Beck v. Beck, 771 S.W.2d 141, 141-42 (Tex. 1989); Thompson v. Ballard, 149 S.W.3d 161, 165 (Tex. App.-Tyler 2004, no pet.). The trial court may hold a preliminary hearing to determine whether petitioner presented prima facie proof of a meritorious ground of appeal. In re L.N.M., 182 S.W.3d 470, 474 (Tex. App.-Dallas 2006, no pet.); Boateng v. Trailblazer Health Enter., L.L.C., 171 S.W.3d 481, 488 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). If a prima facie meritorious ground of appeal is shown, the trial court then conducts a trial on the merits of the bill of review. See Baker, 582 S.W.2d at 409; In re L.N.M., 182 S.W.3d at 474. If the trial court determines that a prima facie ground of appeal has not been made, the proceeding terminates and the trial court dismisses the case. See Baker, 582 S.W.2d at 409; see also Presley v. McConnell-Presley, 2009 WL 1579185, at *3 (Tex. App.-Dallas June 8, 2009, no pet.); In re L.N.M., 182 S.W.3d at 474-75.

The trial court in this cause conducted the pretrial hearing authorized by Baker. The only relevant inquiry was whether Amer had presented prima facie proof of a meritorious ground of appeal, a question of law for the trial court. See Baker, 582 S.W.2d at 409 ( this is a question of law for the court; factual questions are resolved in favor of the complainant for the purposes of this pretrial, legal determination); see also Ramsey, 249 S.W.3d at 574 (the determination of whether a bill-of-review plaintiff has made a prima facie showing of a meritorious ground for appeal is a question of law).

When judgment must be rendered as...