Lowe v. UNITEED STATES SHOE CORP.

849 S.W.2d 888, 1993 Tex. App. LEXIS 691, 1993 WL 63368
CourtCourt of Appeals of Texas
DecidedMarch 11, 1993
DocketC14-92-00141-CV
StatusPublished
Cited by21 cases

This text of 849 S.W.2d 888 (Lowe v. UNITEED STATES SHOE CORP.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowe v. UNITEED STATES SHOE CORP., 849 S.W.2d 888, 1993 Tex. App. LEXIS 691, 1993 WL 63368 (Tex. Ct. App. 1993).

Opinions

OPINION

ROBERTSON, Justice.

Appellant appeals from a jury verdict dismissing her equitable bill of review. We affirm.

[889]*889On April 13, 1988, appellant filed suit against appellees as a result of appellant’s termination of employment with Casual Corner, a store owned by The United States Shoe Corporation. Appellant asserted causes of action for libel, slander, false light, invasion of privacy, and tortious interference with contract.

Two years later, on April 12, 1990, the Brazos County District Clerk mailed to appellant’s attorney the following notice of intent to dismiss the cause for want of prosecution:

Pursuant to Rules of Civil Procedure 165a, 306a, and Local Rules 7, you are hereby notified that cases will be dismissed for want of prosecution on April 30, 1990 unless good cause is shown in writing filed with the clerk (no appearance necessary) on or before said date why case should not be dismissed. A list of cases will be posted on the bulletin board outside the courtroom. Also a list of cases may be obtained, for a nominal fee, by contacting the district clerk’s office at....

The notice did not identify the specific case subject to dismissal. Appellant’s attorney received the notice on April 16, 1990. Upon receipt, appellant’s attorney did nothing to determine what case or cases were subject to the dismissal notice nor did he even familiarize himself with the provisions of the local rules.1 Instead, the attorney assumed the notice pertained to Gutierrez v. The Southland Corp., another case the attorney was responsible for and that had been on the court docket longer than Lowe v. The United States Shoe Corp., et al. Appellant’s attorney filed a motion to retain the Gutierrez case. Because of the wrongful assumption that the notice of intent to dismiss applied to Gutierrez, appellant’s attorney did not file a motion to retain Lowe v. The United States Shoe Corp., et al., and the case was dismissed for want of prosecution on June 28, 1990.

Appellant’s counsel asserts he did not learn of the dismissal until November 6, 1990, when, after urging appellees to complete discovery, appellees sent appellant’s counsel a copy of the dismissal order and a letter stating the case had been dismissed. On December 5, 1990, appellant filed a motion to reinstate and equitable bill of review. Appellant’s motion to reinstate was untimely and appellant proceeded on the equitable bill of review.

Appellees filed a motion to dismiss equitable bill of review on December 30, 1990 arguing appellant failed to pursue an adequate remedy at law, a writ of error. On December 9, 1991, the district court denied appellees’ motion to dismiss the bill of review and appellant’s bill of review was tried to a jury on December 10, 1991. There was an agreement between both parties, joined in by the court, that the trial would be bifurcated, i.e. the bill or review would first be tried and if a trial on the merits was then necessary, such trial would be separate. The two questions submitted to the jury were answered favorably to appellee and on December 26, 1991, judgment on the jury verdict dismissing appellant’s equitable bill of review was entered and appellant appeals from that judgment.

In seven points of error, appellant argues the notice of intent to dismiss the suit was inadequate and failed to meet the standards of due process as required by the [890]*890federal and state constitutions; there was a failure to give notice of the dismissal as required by Tex.R.Civ.P. 306a; and the trial court imposed an erroneous burden of proof on appellant. Appellant does not argue each point of error separately, but argues all seven points of error as one point with lack of due process being the underlying contention. This manner of attack upon the trial court judgment complicates our addressing her contentions. We place this case in the proper context, we believe, by first addressing her basic contention.

Appellant begins her argument upon the premise that she was not required to prove fraud, accident or wrongful act of the opposing party because 1) the notice of the impending dismissal was constitutionally infirm and 2) she did not receive notice of the actual order or judgment of dismissal. Appellant bases her contention upon Peralta v. Heights Medical Center, 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) and Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988). In each of those cases the respective courts held that requiring a defendant, who had no notice of a dispositive setting of a case, to show as a condition of being granted relief, that he had a meritorious defense was a violation of due process. Those cases simply have nothing to do with the issue presented in this case. The trial court in this case did not require appellant to show she had a meritorious defense. The procedure to be followed in a bill of review proceeding was set forth in Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979). The first requirement to be met, as set out in Goldsmith, has unquestionably not been changed:

First, in order to invoke the equitable powers of the court, the bill of review complainant must file a petition. This petition must allege factually and with particularity that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with his own negligence.

Id. at 408. This was the basis upon which the trial court proceeded. Thus, the controlling question presented by this appeal is whether appellant received notice of intent to dismiss her lawsuit.

The case was presented to the jury on two questions:

Question No. 1:
Do you find, from a preponderance of the evidence, that the dismissal of the [appellant’s] case was the result of fraud, accident or wrongful act of Chris Love, The United States Shoe Corporation, or their attorney, unmixed with any negligence of Jill Oliver Lowe or her attorney.
Question No. 2:
Do you find from a preponderance of the evidence, that the dismissal of [appellant’s] case was the result of an official mistake by the district clerk, unmixed with any negligence on the part of Jill Oliver Lowe or her attorney.
As used in Question No. 2, an “official mistake” is an error by an official court functionary in the discharge of official, duties.

Appellant’s points of error one through five and seven concern these questions. In her first two points of error appellant contends this was an erroneous submission because neither question “fit” the evidence presented and the questions presented to the jury do not address the due process basis for the bill or review. She argues there is no evidence of fraud, accident, or wrongful act of appellees, nor was there any evidence of an “official mistake” by the district clerk and that the answer to each question submitted to the jury was a foregone conclusion.

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Lowe v. UNITEED STATES SHOE CORP.
849 S.W.2d 888 (Court of Appeals of Texas, 1993)
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Bluebook (online)
849 S.W.2d 888, 1993 Tex. App. LEXIS 691, 1993 WL 63368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-uniteed-states-shoe-corp-texapp-1993.