in the Interest of E.E v. and D.D.F., Children

• Court: Court of Appeals of Texas
• Decided: September 11, 2013
• Docket: 04-13-00402-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00402-CV

IN THE INTEREST OF E.E.V. and D.D.F., Children

From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2012-PA-02923 Honorable Peter A. Sakai, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: September 11, 2013

AFFIRMED

Pamela V. appeals the trial court’s order denying her bill of review seeking to set aside an

order terminating her parental rights. The only issue raised on appeal is the assertion that the trial

court applied an erroneous standard in ruling on the bill of review. We overrule this issue and

affirm the trial court’s order.

BACKGROUND

Pamela V. was represented by a retained attorney and fully participated in the hearing on

the petition seeking to terminate her parental rights. The order terminating her parental rights was

signed on July 13, 2012, approximately ten days after the final hearing. In her petition for bill of

review, Pamela V. asserted that she had no knowledge that the order had been signed until two

weeks later due to a lack of communication between her attorney and her. Pamela V. 04-13-00402-CV

acknowledges that she filed a timely pro se motion for new trial; however, she contends she did

not know the requirements for perfecting an appeal and was unable to retain an attorney in time to

file a notice of appeal before the appellate deadline.

The trial court conducted a hearing on Pamela V.’s bill of review petition. At the

conclusion of the hearing, the trial court took the matter under advisement. Approximately one

month after the hearing, the trial court signed an order denying the petition without stating any

basis for the denial. No findings of fact and conclusions of law were requested or entered.

DISCUSSION

“A bill of review is an equitable proceeding to set aside a judgment that is not void on the

face of the record but is no longer appealable or subject to a motion for new trial.” King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “Generally, a petitioner seeking to set aside

a prior judgment by bill of review must plead and prove: (1) a meritorious claim or defense; (2)

that was not asserted due to fraud, accident, or wrongful act of an opponent or official mistake; (3)

unmixed with any fault or negligence by the petitioner.” In re Douglas, 333 S.W.3d 273, 294

(Tex. App.—Houston [1st Dist.] 2010, pet. denied); see also King Ranch, Inc., 118 S.W.3d at 751-

52 (listing same elements). In situations like the instant case, however, where the petitioner has

participated in the underlying suit, the “petitioner must establish a ‘meritorious ground on appeal’

in lieu of a meritorious claim or defense.” In re Douglas, 333 S.W.3d at 294; see also Thompson

v. Ballard, 149, 164 (Tex. App.—Tyler 2004, no pet.).

Pamela V. contends that the trial court erroneously applied the “meritorious claim or

defense” element, as opposed to the “meritorious ground on appeal” element in ruling on her

petition. As support for this contention, Pamela V. cites argument from counsel at the hearing

referring to the erroneous element. As previously noted, however, the trial court took the matter

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under advisement at the conclusion of the hearing, and the trial court’s order makes no reference

to a “meritorious claim or defense.”

“Public policy favors the validity of judgments.” Vickery v. Commission for Lawyer

Discipline, 5 S.W.3d 241, 251 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). A general

presumption of validity extends to a trial court’s judgment, and “the presumption of validity is

perhaps even stronger in a bench trial where an experienced judge … is charged with the

responsibility … of correctly applying the law to the facts.” Id. “The presumption of validity is

applied on appeal in inverse relation to the amount of knowledge available to the appellate court.”

Id. “Where the record is ambiguous or silent, the presumption of validity will supply by

implication every … proper application of the law needed to support the judgment.” Id.; see also

In re D.E.W., 654 S.W.2d 33, 36 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.) (noting trial court

presumed to have used the correct standard absent a showing to the contrary and burden is on

appellant to show that proper standard was not applied). In this case, nothing in the record

demonstrates that the trial court failed to apply the correct bill of review elements in reaching his

decision. Accordingly, Pamela V.’s issue is overruled.

Even if we could be persuaded by Pamela V.’s argument, we note a bill of review petitioner

has the burden to plead and prove three elements, not one. As previously noted, the trial court’s

order does not state the basis upon which he denied Pamela V.’s petition; therefore, the trial court

could have determined that Pamela V. failed to establish one of the other two elements she was

required to prove. See Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th

Dist.] 2002, no pet.) (denial of bill of review must be affirmed on any legal theory that finds support

in the evidence). For example, one of the other elements required Pamela V. to establish that her

meritorious ground on appeal “was not asserted due to fraud, accident, or wrongful act of an

opponent or official mistake.” In re Douglas, 333 S.W.3d at 294. In her petition, Pamela V. -3- 04-13-00402-CV

asserted that her retained attorney failed to timely notify her that the termination order had been

signed. “[A]llegations of fraud or negligence on the part of a party’s attorney are insufficient to

support a bill of review.” King Ranch, Inc., 118 S.W.3d at 752; see also Nguyen, 93 S.W.3d at 293

(noting “relief by equitable bill of review is unavailable” where “legal remedies were available but

ignored” even if the failure resulted “from the negligence or mistake of a party’s attorney”).

CONCLUSION

The trial court’s order is affirmed.

Catherine Stone, Chief Justice

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