Fred DuVall v. C.F. Evetts and Pat Evetts D/B/A Windrush Kennels, Raul Rios and Janice Maloney

• Court: Court of Appeals of Texas
• Decided: March 31, 2000
• Docket: 04-99-00309-CV
• Status: Published

Opinion

No. 04-99-00309-CV Fred DUVALL, Appellant v. C.F. EVETTS and Pat Evetts d/b/a Windrush Kennels, Janice Maloney, and Raul Rios, Appellees From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 94-05-32641-CV Honorable Robert F. Barnes, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: March 31, 2000

AFFIRMED

Fred DuVall appeals from a summary judgment granted in favor of C.F. and Pat Evetts, d/b/a Windrush Kennels, and two of their attorneys, Janice Maloney and Raul Rios. We affirm.

Factual and Procedural Background

In 1991, DuVall filed a DTPA suit against Pat Evetts, d/b/a Windrush Kennels, alleging that: he had paid $475 for two puppies; one of the puppies, Casanova, had undescended testicles and an overbite and had not been taught his name or basic commands; and the other puppy, Tuffy, was never delivered. C.F. Evetts was subsequently added as a defendant. In November 1993, the trial court rendered judgment in favor of DuVall.

The Evetts subsequently filed a petition for bill of review, alleging that: they and DuVall entered into a settlement agreement in 1992, pursuant to which the Evetts would pay DuVall $500 and DuVall would release them from liability; DuVall cashed a $500 cashier's check they sent him; months later, a court officer requested that their counsel file a motion for nonsuit since the case had been settled; counsel forwarded the motion for nonsuit, which was granted by the trial court on October 26, 1993; unbeknownst to the Evetts or their counsel, the trial court called the case for trial on October 27, 1993, and subsequently signed a judgment in favor of DuVall, also unbeknownst to them; and they did not learn of the judgment until the time for appealing and filing post-trial motions had expired. DuVall answered and filed a counterclaim against the Evetts' attorneys, Janice Maloney and Raul Rios, asserting that they acted improperly regarding the nonsuit.

The trial court set aside the nonsuit and the judgment in favor of DuVall and later granted summary judgment in favor of the Evetts and their attorneys. DuVall now appeals.

Discussion

Jurisdiction and Venue

In his first and eleventh questions presented, DuVall argues that venue was improper in the 79th Judicial District Court of Jim Wells County. He requested that venue be transferred to Hidalgo County. Only the court that rendered the judgment under attack has jurisdiction over a bill of review proceeding. See Pursley v. Ussery, 937 S.W.2d 566, 568 (Tex. App.-San Antonio 1996, no writ). It is undisputed that the 79th Judicial District Court of Jim Wells County rendered the judgment in the DTPA action. Therefore, it would have been improper to transfer venue to Hidalgo County because no court in that county would have had jurisdiction.

In his sixth question presented, DuVall argues that the trial court erred in refusing to consider his argument that the court lacked venue, and thus jurisdiction, at the summary judgment hearing. As we just noted, the 79th Judicial District Court was the only court with jurisdiction over this bill of review proceeding. Therefore, we find no reversible error in the court's refusal to consider the venue and jurisdiction issues at the summary judgment hearing.

Recusal

In his second and third questions presented, DuVall argues that a judge who had recused himself continued to preside over the case. The motion for recusal in the record seeks the recusal of the presiding judge. The presiding judge of the 79th Judicial District Court is Terry A. Canales. There is nothing in the record to reflect that Judge Canales continued to preside over this case after the motion for recusal was filed. We therefore overrule DuVall's arguments regarding recusal.

Consolidation

In his second, third, and fourth questions presented, DuVall argues that the trial court erred by consolidating the bill of review proceeding with the DTPA action. It is proper to consider a bill of review and the merits of the underlying case in a single proceeding. See McEwen v. Harrison, 162 Tex. 125, 131, 345 S.W.2d 706, 710 (1961). In this case, the record reflects that the trial court first considered the bill of review and set aside the prior judgment, then, several years later, considered the merits of the DTPA action on summary judgment. We find no error.

Common-Law Defenses

In his second and fourth questions presented, DuVall argues that the trial court erred in granting the bill of review because the DTPA did away with common-law defenses. A bill of review is not a defense; rather, it is an independent equitable action that seeks to set aside a judgment in a former action. See Pursley, 937 S.W.2d at 567.

DuVall also argues that the DTPA abrogated the common-law defenses of estoppel, ratification, and waiver. In their motion for summary judgment, the appellees argued that because DuVall retained the settlement funds, DuVall was estopped from denying the validity of the settlement agreement, ratified the settlement agreement, and waived his right to continue the DTPA action. DuVall's apparent point is that the appellees were not entitled to summary judgment on these grounds. The DTPA does not preclude parties from settling a DTPA action. Indeed, the DTPA encourages settlements. See Tex. Bus. & Com. Code Ann. § 17.5052 (Vernon Supp. 1999); Hines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992). The appellees' estoppel, ratification, and waiver theories all related to the settlement agreement. Therefore, the trial court did not err in granting summary judgment on these grounds.

Plenary Power

In his fifth and fourteenth questions presented, DuVall argues that the trial court lacked plenary power to grant the petition for bill of review and to subsequently render summary judgment. A petition for bill of review is the proper method for attacking a judgment after the trial court's plenary power has expired. See Tex. R. Civ. P. 329b(f); Pursley, 937 S.W.2d at 567. The purpose of a bill of review is to correct a former judgment. See Pursley, 937 S.W.2d at 567. Therefore, in a bill of review proceeding, it is proper to litigate the merits of the judgment being attacked, and it was within the trial court's power to render a summary judgment in favor of the appellees.

Requirements for a Bill of Review

In his fifth question presented, DuVall argues that the trial court erred at the summary judgment hearing by refusing to consider his argument that the appellees had not satisfied the requirements for a bill of review. The bill of review was granted and the prior judgment was set aside on June 8, 1995. The summary judgment hearing was held on April 14, 1999. We find no error in the trial court's refusal to reconsider issues related to the bill of review at that late date.

Attorneys' Authority

In his seventh and eighth questions presented, DuVall argues that the trial court erred by refusing to rule on his motion to require the Evetts' attorneys to show authority. The only motion to show authority in the record is not sworn and is not directed at the authority of the attorney who represented the appellees at the motion for summary judgment. See Tex. R. Civ. P. 12. Therefore, we find no reversible error.

Rule 11

In his ninth question presented, DuVall argues that the settlement agreement relied upon by the Evetts does not satisfy Tex. R. Civ. P. 11. The agreement is set out in letters, signed by DuVall, which state the agreement's essential terms and which were attached to the summary judgment motion. This satisfies Rule 11. See Padilla v. LaFrance, 907 S.W.2d 454, 460-61 (Tex. 1995).

Right to Jury Trial

In his tenth question presented, DuVall argues that the trial court erred by denying him a jury trial even though he had paid the jury fee. In the absence of controverted material issues, the granting of summary judgment does not violate the right to trial by jury. See Carrabba v. Employer's Cas. Co., 742 S.W.2d 709, 716-17 (Tex. App.-Houston [14th Dist.] 1987, no writ).

Existence of Settlement Agreement

In his tenth question presented, DuVall argues that there is a fact question regarding the existence of a settlement agreement. The appellees attached to their motion for summary judgment letters signed by DuVall, stating the material terms of the settlement agreement; an affidavit by Pat Evetts, stating the terms of the settlement agreement; and a copy of a $500 cashier's check that was negotiated by DuVall. DuVall did not present any controverting evidence, nor did he make any written objections to the appellees' summary judgment proof. See Tex. R. Civ. P. 166a(c),(f); El Paso Assocs. v. J.R. Thurman & Co., 786 S.W.2d 17, 19 (Tex. App.-El Paso 1990, no writ). The trial court did not err in concluding that a settlement agreement existed.

Summary Judgment for the Evetts' Attorneys

In his tenth and twelfth questions presented, DuVall argues the trial court erred in granting summary judgment for the Evetts' attorneys because his claim against them was properly brought as a DTPA action. The attorneys moved for summary judgment on the ground that DuVall's cause of action against them was predicated on his claim that he did not settle his suit with the Evetts. They asserted that if DuVall and the Evetts entered into a settlement agreement, their actions were proper. DuVall's argument on appeal does not address the grounds in the attorneys' motion. Accordingly, we find no reversible error. See Malooly Bros. Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). We also note that DuVall was not in a consumer relationship with the Evetts' attorneys. See Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon 1999) (defining "consumer").

Settlement Negotiations

In his thirteenth question presented, DuVall argues that the trial court erred by requiring the parties to attempt to negotiate a settlement and by "moderating" the settlement discussions. There is nothing in the record to reflect that this occurred. DuVall also argues that the trial court violated Tex. R. Evid. 408 by considering the settlement negotiations in granting the summary judgment. We believe DuVall misunderstands the trial court's ruling on the motion for summary judgment. The summary judgment was based on the settlement entered into in 1992, before the judgment in the underlying case was entered. It was not based on settlement negotiations that occurred during the bill of review proceedings. Rule 408 prohibits considering settlement negotiations in determining liability; it does not forbid a court from enforcing a settlement agreement. We find no error.

Conclusion

Finding no reversible error, we affirm the judgment of the trial court.

Tom Rickhoff, Justice

DO NOT PUBLISH