Dwight Cannon DBA D.C. Wrecker Service and DBA Uptown Auto Storage v. TJ Burdett & Sons Recycling and TJ Burdett & Sons, Inc

• Court: Court of Appeals of Texas
• Decided: February 5, 2009
• Docket: 01-08-00380-CV
• Status: Published

Opinion

Opinion issued February 5, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00380-CV

__________

DWIGHT CANNON, D/B/A D.C. WRECKER SERVICE AND UPTOWN AUTO STORAGE, Appellant

V.

TJ BURDETT & SONS RECYCLING AND TJ BURDETT & SONS, INC., Appellees

On Appeal from the County Civil Court at Law Number One

Harris County, Texas

Trial Court Cause No. 904186

MEMORANDUM OPINION

Appellant, Dwight Cannon, doing business as D.C. Wrecker Service and Uptown Auto Storage, challenges the county court's order granting appellees, TJ Burdett & Sons Recycling and TJ Burdett & Sons, Inc.'s (collectively, "Burdett"), motion to dismiss Cannon's bill of review. In a single issue, Cannon contends that the county court erred in dismissing his bill of review because he presented "prima facie evidence of each and every element of a bill of review," he had no independent duty to "monitor the entry of orders" after the justice court's oral ruling dismissing the case, any "negligent breach" of a duty to monitor the justice court's "entry of orders" is a triable fact issue, he "had no other appellate remedy" or "was not required to choose between appellate remedies," and he "was entitled to a trial on the merits on his bill of review and the underlying . . . claims."

We reverse and remand.

Factual and Procedural Background

After a roadway accident, Cannon towed a truck and a trailer owned by Burdett to Uptown Auto Storage's yard. After refusing to pay the amounts charged by Cannon, Burdett filed requests for "tow hearings" in the justice court of Harris County in regard to both of his vehicles. ⁽¹⁾ In the requests, Burdett stated that he "was charged or paid a towing charge greater than the amount authorized," and he attached invoices for the towing and storage. On February 20, 2007, the justice court signed "findings of fact, conclusions of law, and order[s]," concluding that there was probable cause to authorize the towing of both vehicles, ⁽²⁾ finding "the reasonable charges in connection" with the towing and storage of both vehicles to be $600 for towing and $965 for storage, concluding that Burdett had paid a combined total of $1,900 for towing and storage, which exceeded the "fees authorized by law" by $335, ⁽³⁾ and ordering Cannon to reimburse Burdett $335 "for the excessive" charges.

On September 20, 2007, Cannon filed his bill of review in the justice court, ⁽⁴⁾ in which Cannon asserted that he "was prevented from presenting his meritorious defense by accident, mistake or fraud, through no fault of his own." Cannon asserted that, after the towing, he had computed the appropriate towing, storage, and cargo salvage fees pursuant to applicable ordinances, an Administrative Code provision, and industry rates, he had presented Burdett with an invoice, and Burdett had refused to pay. Instead, Burdett requested tow hearings, and Cannon appeared at the hearings in justice court, pursuant to a summons, on February 20, 2007. At the hearing, the justice court "determined that the tows were authorized by the Harris County Sheriff's Department" and then "advised the parties that any dispute regarding the amount of the charges was a civil matter [and that] the justice court would not adjudicate the issue." The justice court then adjourned the hearing, and the parties and the Harris County Sheriff's deputy, who also had appeared at the hearing, left the justice court. Cannon supported this version of events with his affidavit testimony as well as the affidavit testimony of two other persons who were present in the justice court during the hearing.

Nevertheless, on February 20, 2007, the justice court entered findings of fact, conclusions of law, and orders, finding that Cannon charged amounts in excess of those authorized by law and ordering Cannon to reimburse a portion of the payment. Cannon did not receive notice of the orders, but instead only received notice of the orders from Burdett's counsel, but after the expiration of the ten-day appellate period. Cannon asserted that, as a result of the justice court's adjournment of the hearing and subsequent entry of findings, conclusions, and orders without providing him notice, he "was not given the opportunity to present evidence and testimony regarding the appropriate towing and storage fees." Cannon further asserted that because he did not receive timely notice of the entry of the orders, he was prevented from filing a new trial motion or requesting an appeal.

In support of his contention that he had a meritorious defense, Cannon testified, in his attached affidavit, that "Harris County Wrecker Ordinances for Law Enforcement Nonconsent Towing and Storage Services" provided for heavy duty wrecker's towing charges of $300 for the first hour and $150 for each additional hour, and Cannon attached portions of these ordinances. Cannon further testified that the Harris County Sheriff's Deputy had determined that five hours of towing was authorized for the operation, which involved two heavy duty wreckers, and, thus, at a minimum, the towing charges for those five hours totaled $1,800, which exceeded the combined total amounts determined by the justice court to be reasonable for both the towing and the storage of both vehicles. Cannon then testified that a section of the Texas Administrative Code, which Cannon also attached, and the aforementioned ordinances set forth specific amounts for impound, notification, and per-day storage fees and that Burdett owed Cannon $1,260 for storage, $20 for impound, and $50 for notification with respect to each vehicle. Cannon complained that the justice court did not have the authority to deviate from the relevant code provisions and ordinances and that the justice court incorrectly determined, in violation of the codes and ordinances, that a single charge for towing and storage should apply to both vehicles. In sum, Cannon stated that the justice court erred in concluding that Cannon charged fees in excess of those authorized by law and in ordering Cannon to reimburse Burdett $335.

The justice court denied Cannon's bill of review, and Cannon appealed the justice court's denial of his bill of review to the county court for a trial de novo. See Tex. R. Civ. P. 574b. Burdett then filed, in the county court, a motion to dismiss Cannon's bill of review. Burdett asserted that before Cannon was entitled to a trial on his bill of review, he was required to present prima facie proof of a meritorious defense, and Burdett requested that the county court dismiss the bill of review on this ground. Burdett also asserted that, as a matter of law, Cannon would not be able to establish that he was prevented from asserting his alleged meritorious defense unmixed by any fault or negligence on his part. Finally, Burdett contended that Cannon had failed to exhaust all other remedies.

Cannon filed a response and an amended bill of review. In the amended bill of review, Cannon reiterated his contention that the justice court's determination of the appropriate towing and storage charges was incorrect, "incomprehensible," and in violation of the ordinances and code. Cannon stated that the correct amounts for the combined totals for both vehicles were $1,800 in towing charges and $2,660 in storage and associated charges. Cannon also reiterated his contention that, after the justice court had dismissed the proceeding, the justice court, without notice to him, subsequently entered findings of fact, conclusions of law, and orders, ordering Cannon to reimburse $355 to Burdet. Cannon stated that the justice court had mailed these orders to Burdett but not to him and that he did not receive a copy of the orders until after the expiration of the period to file an appeal or new trial motion. Cannon attached affidavit testimony to support these assertions, and he asserted that the justice court's findings and conclusions were arbitrary and without reference to any facts or evidence. Cannon also cited both his and Burdett's testimony to show that it was undisputed that the justice court did not rule from the bench at the tow hearing.

The county court conducted a hearing on Cannon's bill of review and Burdett's motion to dismiss. The county court granted Burdett's motion to dismiss, finding that Cannon was not "prevented from asserting or making a meritorious defense due to fraud, accident, the wrongful act of the opposite party or to official mistakes unmixed with fault or negligence [on] his part."

Standard of Review

When the inquiry on the bill of review concerns questions of law, such as whether an appellant presented prima facie proof of a meritorious ground of appeal, we review the trial court's decision de novo. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

When a trial court grants summary judgment on a bill of review, the summary judgment standard of review applies. ⁽⁵⁾ See Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (reviewing no evidence summary judgment on bill of review); Brown v. Vann, No. 05-06-01424-CV, 2008 WL 484125, at *4 (Tex. App.--Dallas Feb. 25, 2008, no pet.) (mem. op.) (reviewing summary judgment on bill of review). To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey, 900 S.W.2d at 341. When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in its favor. Id. at 549.

Bill of Review

In a single issue, Cannon argues that the county court erred in dismissing his bill of review because he presented "prima facie evidence of each and every element of a bill of review," he had no independent duty to "monitor the entry of orders" after the justice court's oral ruling dismissing the case, any "negligent breach" of a duty to monitor the justice court's "entry of orders" is a triable fact issue, he "had no other appellate remedy" or he "was not required to choose between appellate remedies," and he "was entitled to a trial on the merits on his bill of review and the underlying . . . claims."

Upon the expiration of a trial court's 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 equitable action brought by a party to a prior action who seeks to set aside a judgment that is no longer subject to challenge by a motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Boaz, 221 S.W.3d at 131. A party seeking a bill of review who has participated in the trial court proceedings must plead and prove that (1) a meritorious ground of appeal exists; (2) which the party was prevented from presenting in a motion for new trial or ordinary appeal by the fraud, accident, or wrongful act of the opposing party, or official mistake or misinformation; (3) unmixed with the fault or negligence of the petitioner. Thompson v. Ballard, 149 S.W.3d 161, 164 (Tex. App.--Tyler 2004, no pet.); McDaniel v. Hale, 893 S.W.2d 652, 660, 662-63 (Tex. App.--Amarillo 1994, writ denied); see also Gold v. Gold, 145 S.W.3d 212, 213-14 (Tex. 2004); Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex. 1974). A meritorious ground of appeal is one that, had it been presented to the appellate court as designed, might, and probably would, have caused the judgment to be reversed. ⁽⁶⁾ Petro-Chem., 514 S.W.2d at 245; Thompson, 149 S.W.3d at 164.

As a pretrial matter, the bill of review plaintiff must present prima facie proof to support the alleged meritorious claim or defense. Caldwell, 154 S.W.3d at 97; Baker, 582 S.W.2d at 408. If the trial court concludes that a prima facie meritorious ground of appeal has not been shown, it may dismiss the case without conducting a trial. ⁽⁷⁾ Baker, 582 S.W.2d at 409. Prima facie proof may consist of documents, admissions, and affidavits, along with other evidence that the trial court may receive. Id.; Thompson, 149 S.W.3d at 164.

In regard to the meritorious defense element, Cannon presented affidavit testimony that he was precluded from offering any evidence at the justice court hearing on the amounts authorized by law for the towing and storage of Burdett's vehicles. Cannon averred that, at the hearing, the justice court stated that it could not hear the matter, adjourned the hearing without giving the parties the opportunity to present evidence on the appropriate charges, and dismissed the cases. Cannon testified that the justice court, in contradiction to its earlier oral rulings, had subsequently entered findings of fact, conclusions of law, and orders compelling Cannon to reimburse Burdett a portion of the monies paid for the towing and storage of the vehicles. Cannon further testified that the justice court did not afford him the opportunity to present evidence showing that the Harris County Sheriff had authorized five hours of towing for the operation and that Harris County ordinances compelled a finding by the justice court that Cannon was owed, at a minimum, $1,800 for the towing--an amount that exceeded the amounts found by the justice court to be reasonable charges for both the towing and the storage of both vehicles. Cannon also stated that the justice court did not afford him the opportunity to present evidence on the appropriate storage and associated fees. We conclude that Cannon presented prima facie evidence of a meritorious defense at the county court's pretrial hearing. ⁽⁸⁾

In regard to the official mistake element, Cannon testified that, despite the justice court's statements at the hearing that it would not consider Burdett's requests, it subsequently entered findings of fact, conclusions of law, and orders, determining the amounts authorized by law for towing and storage and ordering Cannon to reimburse Burdett for some of the amounts paid. Cannon further testified that he did not receive notice of the justice court's orders until after the time period to appeal the order or file a new trial motion.

Texas Rule of Civil Procedure 306a(3) provides, in part, that "[w]hen the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed." See Tex. R. Civ. P. 306a(3). The Texas Supreme Court has explained,

The obvious purpose of this rule is to insure that, insofar as practicable, parties adversely affected by a final judgment or other appealable order have an opportunity to attack the same by motion for new trial or appeal. That purpose will be defeated in some instance by incorrect addresses, errors of the postal service, and failure of the addressee for any reason to receive a notice delivered to the proper address. It will be unnecessarily thwarted if there can be no relief when the clerk, either intentionally or through oversight, fails to send the notice promptly as required by the rule.

Petro-Chem., 514 S.W.2d at 244 (citing former Tex. R. Civ. P. 306d); see also Brown, 2008 WL 484125, at *2 ("When all other requirements are met, a bill of review may be predicated upon the trial court clerk's failure to send notice of entry of judgment.").

Here, Cannon presented undisputed evidence that he was not provided with notice of the justice court's orders until after the deadlines to file both a new trial motion and an appeal of the justice court's orders to the county court. See Tex. R. Civ. P. 567 (stating that "[t]he justice, within ten days after the rendition of a judgment in any suit tried before him, may grant a new trial therein on motion in writing showing that justice has not been done in the trial of the cause"); Tex. R. Civ. P. 569 (stating that "[a]ll motions to set aside a judgment or to grant a new trial, under the two preceding rules, shall be made within five days after the rendition of judgment and one day's notice thereof shall be given the opposite party or his attorney"); Tex. R. Civ. P. 571 (stating that "[t]he party appealing, his agent or attorney, shall within ten days from the date a judgment or order overruling motion for new trial is signed, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice . . . ."); Tex. Occ. Code Ann. § 2308.459 (Vernon Supp. 2008) (stating that "[a]n appeal from a hearing under this chapter is governed by the rules of procedure applicable to civil cases in justice court, except that no appeal bond may be required by the court").

We conclude that Cannon presented undisputed evidence that the justice court clerk failed to provide him any notice of its orders within the time period in which Cannon could have pursued a new trial motion or appeal. See Thompson, 149 S.W.3d at 165-66 (concluding that bill of review petition thoroughly documented small claims court's failure to send notice of judgment, but affirming trial court's denial of bill of review on meritorious defense issue); Nitzche v. Teams of Tex., No. 14-05-00876-CV, 2007 WL 925803, at *2-3 (Tex. App.--Houston [14th Dist.] Mar. 29, 2007, no pet.) (mem. op.) (noting that neither party disputed that "the only evidence at trial indicated that the clerk of the court failed to mail any notice of the trial court's judgment" and that "the only evidence presented at trial indicated that the first opportunity for the [the bill of review plaintiffs] to have received actual notice of the judgment was too late to timely file notice of appeal" and, thus, "the only evidence adduced showed official mistake," but affirming trial court's denial of bill of review on meritorious defense issue).

Finally, we consider the issue of whether Cannon's failure to file a new trial motion or appeal was unmixed with any negligence or fault of his own. Petro-Chem., 514 S.W.2d at 244; Brown, 2008 WL 484125, at *2. Here, Cannon presented affidavit testimony that, at the tow hearing, which Burdett requested and at which Burdett was the party seeking relief, the justice court had announced that it did not have jurisdiction over the amounts in dispute and had dismissed the parties. Cannon further testified that, without his knowledge, the justice court subsequently entered orders in favor of Burdett, wholly depriving Cannon of the right to appear at the hearing and present evidence on the appropriate amount of the towing and storage fees authorized by law. It is undisputed, on the record before us, that Cannon did not receive notice of these orders until the times to file an appeal and new trial motion had expired. Moreover, there is nothing in the record before us to show that Cannon was in any way negligent in regard to being notified or learning of the justice court's orders after the expiration of the appellate period or time to file a new trial motion. Petro-Chem., 514 S.W.2d at 244 (citing former Tex. R. Civ. P. 306d); see also Brown, 2008 WL 484125, at *2.

Burdett contends that Cannon's failure to exhaust his legal remedies precludes him from obtaining a bill of review. Specifically, Burdett contends that "in cases like this one, where the bill of review plaintiff received notice in time to have filed a writ of certoriari, a subsequent bill of review has been denied." ⁽⁹⁾

The Texas Rules of Civil Procedure provide that a party may seek relief from the judgment of a justice court by filing an application for writ of certiorari with the county court. See Tex. R. Civ. P. 575. "The writ shall command the justice to immediately make and certify a copy of the entries in the cause on his docket, and immediately transmit the same, with the papers in his possession and a certified copy of the bill of costs to the proper court." Tex. R. Civ. P. 576. "The writ shall not be granted unless the applicant or some person for him having knowledge of the facts, shall make affidavit setting forth sufficient cause to entitle him thereto," and, "[t]o constitute a sufficient cause, the facts stated must show that either the justice of the peace had no jurisdiction, or that injustice was done to the applicant by the final determination of the suit or proceeding, and that such injustice was not caused by his own inexcusable neglect." Tex. R. Civ. P. 577, 578. Finally, "[s]uch writ shall not be granted after ninety days from the time the final judgment is signed." Tex. R. Civ. P. 579.

The Texas Supreme Court has recently held that the failure to file a restricted appeal does not constitute fault or negligence in regard to the third element of a bill of review. Gold, 145 S.W.3d at 213-14. Although a restricted appeal and a writ of certiorari authorized under rule 575 are distinct procedural tools to attack a judgment, the supreme court's reasoning in Gold compels our holding that the failure to pursue a writ of certiorari under rule 575 on the instant facts also does not constitute negligence that precludes Cannon's filing of a bill of review. In Gold, the supreme court stated that "[i]f 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." Id. at 214. But, the supreme court continued, "the same cannot be said about choosing to appeal by bill of review rather than a restricted appeal, for several reasons." Id. The supreme court explained one of those reasons was that a "bill of review allows trial courts to rectify their own errors, eliminating the need for lengthy appellate review." Id. The Court stated,

It is true we have sometimes stated that relief by bill of review is available only if a party has exercised due diligence in pursuing all adequate legal remedies . . . and not if legal remedies were available but ignored. But a party is not "ignoring" its remedies when it chooses one appellate avenue rather than another. We have never included a restricted appeal among the "adequate legal remedies" a bill of review claimant must pursue; we have only applied this rule to motions that could have been filed in the trial court's first proceeding.

Id. (emphasis added) (citations omitted).

Burdett has cited no authority to support its contention that Canon's failure to apply for a writ of certiorari from the county court precludes his bill of review. ⁽¹⁰⁾ Although it is undisputed that Cannon received notice of the justice court's orders within the time to file an application for a writ of certiorari in the county court, following the supreme court's reasoning in Gold, we conclude that Cannon's failure to apply for a writ of certiorari in the county court does not constitute fault or negligence that precluded Cannon from filing his bill of review in the justice court. See id.

In sum, we hold that Cannon presented prima facie proof of a meritorious defense and that, at a minimum, Cannon raised fact issues as to the remaining elements of his bill of review. Accordingly, we further hold that the trial court erred in concluding that Cannon was not prevented from asserting or making a meritorious defense due to fraud, accident, the wrongful act of the opposite party or to official mistakes unmixed with fault or negligence on his part and in dismissing Cannon's bill of review.

Conclusion

We reverse the judgment of the county court and remand for further proceedings consistent with this opinion.

Terry Jennings

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

1.

Burdett originally filed his requests pursuant to Chapter 685 of the Texas Transportation Code, but the relevant provisions have since been renumbered as sections 2308.451-.460 in the Texas Occupations Code. See Tex. Occ. Code Ann. §§ 2308.451-.460 (Vernon Supp. 2008) (renumbering effective September 1, 2007). Accordingly, we will refer to the relevant sections of the Occupations Code throughout this opinion. Section 2308.452 of the Occupations Code provides that "[t]he owner or operator of a vehicle that has been removed and placed in a vehicle storage facility without the consent of the owner or operator of the vehicle is entitled to a hearing on whether probable cause existed for the removal and placement." Id. § 2308.452. Section 2308.453 of the Occupations Code provides that "[a] hearing under this chapter shall be in the justice court having jurisdiction in the precinct in which the vehicle storage facility is located." Id. § 2308.453.

2. See id. § 2308.451-.452.

3.

See id. § 2308.453.

4.

Cannon titled this document a "Motion to Review/Correct Court Orders," but all parties treat it as a bill of review.

5.

In his brief, Cannon agrees that Burdett's motion to dismiss "constituted a summary judgment proceeding" and Burdett also contends that his motion to dismiss constituted a summary judgment motion.

6. We note that

bills of review seeking relief from otherwise final judgments are scrutinized by courts of equity with extreme jealousy, and grounds on which interference will be allowed are narrow and restricted. Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex. 1984). The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Although a bill of review is an equitable proceeding, the fact that an injustice may have occurred is not sufficient to justify relief by bill of review. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999); Jones v. Corcoran, 95 S.W.3d 673, 675 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

7.

Texas courts have stated that, at an initial pretrial hearing on a bill of review, "the only relevant inquiry is whether the petitioner has made a prima facie showing of a meritorious ground of appeal." Thompson v. Ballard, 149 S.W.3d 161, 165 (Tex. App.--Tyler 2004, no pet.) (citing Beck v. Beck, 771 S.W.2d 141, 142 (Tex. 1989)). Here, at the time the county court conducted its pre-trial hearing to consider the issue of meritorious defense, the county court also considered Burdett's motion to dismiss. We conclude that it was appropriate for the county court to consider the matter of law points raised in the motion as if those points had been raised in a summary judgment motion. See Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (affirming trial court's granting of no-evidence summary judgment motion on bill of review); see also Brown v. Vann, No. 05-06-01424-CV, 2008 WL 484125, at *4 (Tex. App.--Dallas Feb. 25, 2008, no pet.) (mem. op.) (reviewing, and reversing, trial court's granting of summary judgment in favor of bill of review plaintiff and concluding that petitioner had "failed to conclusively establish each required element of his bill of review").

8.

Burdett argues in its briefing that the county court's order dismissing Cannon's bill of review should be affirmed on the "meritorious defense" element because Cannon should not be entitled to "relitigate" the issues presented to the justice court. See Thompson, 149 S.W.3d at 165. In Thompson, although the bill of review plaintiff alleged that he had a meritorious defense, the court noted that this allegation "was entirely unsupported by affidavits, admissions, or other evidence under oath constituting prima facie proof that he had a meritorious ground of appeal whose presentation on appeal was frustrated by the small claims court's failure to give him notice of the judgment's entry." Id. The court concluded that the plaintiff merely sought "the opportunity to relitigate the issues presented and passed on by the small claims court at the trial." Id. The court stated that "[a] bill of review does not lie where the facts and issues urged as a defense to the original suit existed and were within the knowledge of the petitioner at the time of trial" and that "[e]quity cannot be invoked to obtain a retrial of issues that were or could have been presented to the trial court." Id. at 165-66. The instant case is distinguishable from Thompson. Here, Cannon's bill of review is founded upon his testimony that he was precluded from participating at the hearing in the justice court. Unlike the plaintiff in Thompson, Cannon is not seeking to relitigate the issues presented to and passed on by the justice court. Rather, Cannon is asserting that he was deprived of the opportunity to present the issues and evidence to the justice court.

9. Burdett cites two cases in support of this contention, Hesser v. Hesser, 842 S.W.2d 759 (Tex. App.--Houston [1st Dist.] 1992, writ denied) and National Bank of Texas v. First National Bank, 682 S.W.2d 366 (Tex. App.--Tyler 1984, no writ). Although these cases reference a writ of error, also referred to as a restricted appeal, neither case refers to a writ of certiorari.

10.

We note that this argument has been presented in at least one case. See Tarrant Restoration v. TX Arlington Oaks Apts., Ltd., 225 S.W.3d 721, 728 (Tex. App.--Dallas 2007, pet. dism'd w.o.j.). However, the court disposed of the case on other grounds and did not consider this argument. See id.; see also Winrock Houston Assocs. Ltd. P'ship v. Bergstrom, 879 S.W.2d 144, 150 (Tex. App.--Houston [14th Dist.] 1994, no writ) (in determining if party had diligently pursued all available legal remedies, noting that "[g]enerally, there are two methods of obtaining relief from the judgment of a justice court: (1) by appeal; and (2) by writ of certiorari").