Barnes v. Deadrick

464 S.W.3d 48

Billy Ray Barnes, Appellant

v.Marquita Deadrick, Appellee

NO. 01–14–00271–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 17, 2015

Rehearing En Banc Overruled April 28, 2015

Susie Chmielowiec, Houston, TX, for Appellant.

Tristan H. Longino, Skillern Law PLLC, Houston, TX, for Appellee.

Panel consists of Justices Keyes, Higley, and Brown.

OPINION

Laura Carter Higley, Justice

Billy Ray Barnes appeals the trial court's denial of his petition for bill of review to set aside a default judgment rendered in a suit affecting the parent-child relationship. In one issue, Barnes asserts that the trial court abused its discretion by denying his petition based on appellee Marquita Deadrick's affirmative defense of res judicata.

We reverse and remand.

Background

Billy Ray Barnes is the father of M.B., a minor child born on February 8, 1997. Marquita Deadrick is M.B.'s half-sister. In 2007, Deadrick filed a suit affecting the parent-child relationship (SAPCR) with respect to M.B., following the death of M.B.'s mother.

On April 9, 2009, the trial court signed an order in the SAPCR proceeding. The order recited that Deadrick had appeared at trial with her attorney on March 23, 2009. The order stated that, although he had been “duly and properly cited, [Barnes] did not appear [at trial] and wholly made default.”

The trial court appointed Deadrick as M.B.'s sole managing conservator and appointed Barnes as the child's possessory conservator. The order gave Deadrick “a superior right to the child at all times” and provided that Barnes would have supervised visitation with M.B. It also required Barnes to pay $514.55 in monthly child support to Deadrick.

Although not part of the appellate record, it is not in dispute that Barnes filed a bill of review with regard to the SAPCR order. In the bill of review proceeding, the trial court's associate judge made a docket sheet entry on September 10, 2010. The associate judge noted that, although Deadrick had appeared with counsel on that date, neither Barnes nor his counsel had appeared. Following that notation, the associate judge wrote on the docket sheet, “Bill of Review denied.” No written order was signed memorializing the docket sheet entry. Instead, on February 15, 2011, the presiding judge of the trial court signed an “Order for Dismissal for Want of Prosecution.” The order stated, “All counsel of record in the above mentioned case were notified by this court that this matter was set for final trial on the merits on 2–14–11.” The order indicated that “[n]either counsel appeared.” The order concluded, “Accordingly, it is ordered that the above styled cause is dismissed for want of prosecution.”

Barnes initiated a second bill-of-review proceeding on January 31, 2013, seeking to set aside the April 9, 2009 default order in the SAPCR proceeding. It is this second-filed bill-of-review action that is the subject of the instant appeal.

In his sworn bill-of-review petition, Barnes averred that he had been “prevented by [Deadrick] from asserting his parental rights to the child” in the 2009 SAPCR proceeding because he “was served via substitute service at an incorrect address and thus never received notice of the pending action.” He claimed that his “failure to assert the claim was not a result of any negligence or fault of [his].” Barnes asserted that there was “no legal remedy now available to avoid the effect of the order.” Barnes stated, “Despite the exercise of due diligence, [he] did not discover [Deadrick's] fraud until more than thirty days after rendition of the judgment.”

Deadrick answered the petition, asserting the affirmative defense of res judicata. Deadrick claimed as follows: (1) there was a “prior final judgment by the [trial] court” in Barnes's “previously filed bill of review”; (2) both Barnes and Deadrick were parties to the earlier filed bill-of-review proceeding; and (3) the second-filed petition for bill of review “is based on the claims that were raised or could have been raised in the first action.”

The trial court conducted a hearing on December 2, 2013. At the hearing, the trial court first heard, and overruled, Deadrick's special exceptions to Barnes's bill-of-review petition. The trial court then immediately stated, without prompting from Deadrick's counsel, that it believed Deadrick's affirmative defense of res judicata “may have some merit.” The court then initiated a dialogue with counsel regarding the defense.

In this discussion, Deadrick asserted that Barnes's first bill-of-review petition had been denied on September 10, 2010 by the trial court's associate judge. Deadrick's attorney stated that he and Deadrick had appeared at that September 10, 2010 hearing, but Barnes had not appeared at that hearing. Deadrick's counsel stated that the associate judge had denied Barnes's first bill-of-review petition “for failure to appear” at hearing. Deadrick's attorney informed the trial court that the associate judge had noted her denial of the first bill-of-review petition on the docket sheet in that proceeding.

Deadrick's attorney offered a copy of the docket sheet from the first bill-of-review proceeding. The docket sheet contained a notation, initialed by the associate judge, stating that neither Barnes nor his counsel had appeared at the September 10, 2010 hearing and indicating that the first bill-of-review petition had been denied.

Barnes's attorney responded that she did not know what had happened at the September 10, 2010 hearing because she was not involved with the case at that time. She stated that, although she “did not know what to make of the bench notes [that is, the docket sheet],” she had learned that the first bill-of-review action had been dismissed for want of prosecution in a signed order by the presiding judge of the trial court in 2011.

At the end of the December 2, 2013 hearing in the instant action, the trial court agreed with Deadrick that the associate judge's 2010 denial of the first bill of review, as noted in the docket sheet, was res judicata of the second bill of review action. The court stated that the bill-of-review claim had been “ruled on more than three years ago. It was denied at that time, and res judicata applies.” The trial court signed an order denying the second bill-of-review petition on January 9, 2014.

Barnes filed a motion for new trial, challenging the trial court's denial of his second bill-of-review petition. He pointed out that the associate judge's 2010 denial of first bill-of-review petition, as indicated in the docket sheet, had “never [been] reduced to a written” order. Rather, the only signed, final order from the first proceeding had been the February 2011 order signed by the presiding judge, dismissing the first proceeding for want of prosecution. In support of his motion for new trial, Barnes offered a copy of the February 15, 2011 order, which dismissed the first bill-of-review action for want of prosecution.

Deadrick responded to the motion. Among her assertions, Deadrick averred that Barnes's second bill-of-review petition had been appropriately denied based on the doctrine of res judicata. She offered the docket sheet from first bill-of-review proceeding, pointing out that, according to the associate judge's notation, Barnes's first bill-of-review petition had been denied on September 10, 2010.

Deadrick further asserted that it was procedurally improper for Barnes to challenge the trial court's denial with a motion for new trial. She claimed that Barnes's only post-judgment remedy was to file an appeal.

Deadrick also sought sanctions against Barnes. She asserted that Barnes's motion for new trial had been filed for “an improper purpose,” including “to harass or to cause unnecessary delay or needless increase in cost of litigation.”

Following a hearing, the trial court denied Barnes's motion for new trial. In its order, the trial court found “Barnes's claim is barred by res judicata” and his motion for new trial was “procedurally improper.” The trial court also found that Barnes had filed the motion for new trial for “an improper purpose” and sanctioned him $2,700, representing Deadrick's “reasonable attorney's fees.”

This appeal followed. In one issue, Barnes asserts that the trial court abused its discretion when it denied his second petition for bill of review based on Deadrick's affirmative defense of res judicata. Specifically, Barnes claims that the associate judge's notation on the docket sheet, indicating that she had denied Barnes' first bill-of-review petition on September 10, 2010, could not serve as a basis for res judicata when the presiding judge later signed an order dismissing the action for want of prosecution.

Bill of Review

A. Standard of Review

In reviewing the granting or denial of a bill of review, every presumption is indulged in favor of the court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of discretion. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.–Houston [14th Dist.] 2002, no pet.). The trial court may be reversed for abusing its discretion only if it has acted in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. Id. at 293.

B. Res Judicata

The doctrine of res judicata applies to bill-of-review proceedings. See Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex.1980) ; Holloway v. Starnes, 840 S.W.2d 14, 19 (Tex.App.–Dallas 1992, writ denied) ; see also Alexander v. Alexander, No. 03–12–00688–CV, 2014 WL 2211355, at *2 (Tex.App.–Austin May 23, 2014, no pet.) (mem.op.) (applying res judicata to second bill of review in divorce proceeding). To establish res judicata, the defendant must demonstrate “(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d...