Richard Speirs v. Union Pacific Railroad Company

• Court: Court of Appeals of Texas
• Decided: July 2, 2018
• Docket: 04-18-00343-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas July 2, 2018

No. 04-18-00343-CV

Richard SPEIRS, Appellant

v.

UNION PACIFIC RAILROAD COMPANY, Appellee

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2009CI17924 Honorable Angelica Jimenez, Judge Presiding

ORDER The trial court signed a final judgment in cause number 2009-CI-17924 on March 8, 2013. Appellant Richard Speirs filed a motion for new trial, but did not pursue a direct appeal. Referencing underlying cause number 2009-CI-17924, Appellant filed an original petition for a bill of review, designated cause number 2013-CI-20597, on December 20, 2013. The petition was denied. On September 13, 2017, more than four years after the final judgment was signed, Appellant filed in cause number 2009-CI-17924 “Plaintiff’s Petition for Motion on Evidentiary Hearing on Newly Discovered Evidence: Fraud, Spoliation of Evidence, and Concealment of Evidence for a New Trial.” This petition appears to be a second petition for a bill of review. “A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment, which is no longer appealable or subject to motion for new trial.” Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). “Ordinarily, a person must ‘exercise[ ] due diligence to avail himself of all adequate legal remedies against a former judgment’ before filing a bill of review.” Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998) (alteration in original) (quoting Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)). “The residual four-year statute of limitations applies to bills of review.” Id. at 538. Appellant’s petition for bill of review appears to be untimely filed and the record indicates Appellant did not file a direct appeal from the March 8, 2013 judgment. See Caldwell, 975 S.W.2s at 537–38. We ORDER Appellant to SHOW CAUSE in writing within TEN DAYS of the date of this order why this appeal should not be dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a); Caldwell, 975 S.W.2d at 537–38. If Appellant fails to respond as ordered, this appeal will be dismissed without further notice. See TEX. R. APP. P. 42.3(c) (authorizing dismissal for failure to comply with court order). All other appellate deadlines are SUSPENDED pending further order of this court.

_________________________________ Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 2nd day of July, 2018.

___________________________________ KEITH E. HOTTLE, Clerk of Court