IN THE TENTH COURT OF APPEALS
No. 10-06-00302-CV
RODNEY PAT RAMSEY, Appellant v.
THE STATE OF TEXAS, Appellee
From the 40th District Court Ellis County, Texas Trial Court No. 72606
OPINION
Rodney Pat Ramsey appeals from an order denying his petition for bill of review.
Ramsey contends in four issues: (1) the court abused its discretion by failing to conduct
a pretrial hearing to allow him to present prima facie proof of a meritorious ground for
appeal; (2) the court abused its discretion by summarily denying his petition for failure
to allege extrinsic fraud or official mistake without first conducting such a pretrial
hearing; (3) the court abused its discretion by finding that his petition “makes no
allegation of extrinsic fraud, error or mistake on the part of opposing party or of an official court functionary”;1 (4) the court abused its discretion by making the quoted
finding regarding extrinsic fraud while also making an allegedly “conflicting” finding
that the petition “alleges an intrinsic mistake or error of opposing party or official court
functionary”; and (5) the facts of his case “require a new and even more liberal
protection” for similarly situated plaintiffs than is provided by current bill-of-review
jurisprudence. We will affirm.
Background
We begin with Ramsey’s prosecution in 2000 for abuse of official capacity.2
Following a plea bargain, the court placed Ramsey on deferred adjudication community
supervision for two years. After Ramsey’s term of community supervision expired, the
court signed an order discharging him from community supervision.
Ramsey then filed a petition for nondisclosure of criminal information under
section 411.081(d) of the Government Code. See Act of May 31, 2003, 78th Leg., R.S., ch.
1236, § 4, 2003 Tex. Gen. Laws 3499, 3500 (amended 2005) (current version at TEX. GOV’T
CODE ANN. § 411.081(d) (Vernon Supp. 2007)). This statute provides in pertinent part:
After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication.
1 Issues (2) and (3), as we have identified them, are both included within Issue No. 2 as presented in Ramsey’s brief. Issues (4) and (5) as identified in this opinion thus refer to Issue Nos. 3 and 4 in Ramsey’s brief.
2 Abuse of official capacity is a misdemeanor offense within the jurisdiction of a district court. See TEX. CODE CRIM. PROC. ANN. art. 4.05 (Vernon 2005) (district court has jurisdiction over “all misdemeanors involving official misconduct”).
Ramsey v. State Page 2 Id.
At the hearing on Ramsey’s petition, Ramsey contended that the court should be
able to determine the merits of the petition for nondisclosure from the pleadings alone
and that he did not intend to offer any evidence. The State countered that Ramsey
should be required to offer evidence to prove his entitlement to relief. The court took
judicial notice of the contents of the file relating to Ramsey’s prosecution. At the
conclusion of the hearing, the court told the parties that it would take the matter under
advisement and invited the parties to submit briefing.
The State filed a letter brief arguing, among other things, that Ramsey must
present evidence to support his contention that nondisclosure would be in the best
interest of justice, that Ramsey had failed to do so, and that a review of the record in
Ramsey’s case demonstrates in any event that nondisclosure would not be in the best
interest of justice. Ramsey responded with an amended petition for nondisclosure and
a request for a second hearing to present evidence regarding this disputed issue.
Nine days after Ramsey filed these pleadings, the court signed an order denying
the petition for nondisclosure. Ramsey did not file a motion for new trial or appeal.
Ramsey filed his petition for bill of review about two years later. Ramsey alleges
in this petition:
(1) the court’s refusal to conduct a second hearing violated his right to due process;
(2) he had a meritorious claim for an order of nondisclosure based on the testimony of unnamed witnesses who could provide testimony “relevant to the issue of the ‘best interest of justice’” but who were
Ramsey v. State Page 3 prevented from testifying because of the court’s refusal to conduct a second hearing;
(3) because notice of hearing was published in a local paper identifying the proceeding as ”Ex parte Ramsey,” he mistakenly believed that the State would not oppose his petition and thus did not prepare to present evidence or call any witnesses;
(4) section 411.081(d) was a relatively new statute at the time of hearing and it was unclear whether an evidentiary hearing was required;
(5) the court’s reliance on the State’s letter brief, which he characterizes as “information given by an official court functionary,” constitutes an “official mistake” which resulted in the denial of his “right to cross examine or challenge the information supporting the State’s position”; and
(6) his failure to present evidence “was not due to any intentional act of fault or the result of negligence.”
In a supporting brief, Ramsey cited the Supreme Court’s decision in Petro-
Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974), for the proposition
that, rather than establishing a meritorious claim or defense, he needed to establish only
a meritorious ground for appeal. To make a prima facie showing of the meritorious
ground for appeal, Ramsey argued that the court’s denial of his request for a second
hearing constituted such a meritorious ground because it was, among other things, a
violation of his right to due process.
Ramsey v. State Page 4 The court denied Ramsey’s petition without a hearing based on a finding that the
petition alleged only an “intrinsic mistake or error” and did not allege “extrinsic fraud,
error or mistake.”3
Bill of Review
A bill of review is an equitable proceeding to set aside a prior judgment which
can no longer be challenged by motion for new trial or appeal. Caldwell v. Barnes, 154
S.W.3d 93, 96 (Tex. 2004) (per curiam); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.
1979). The traditional elements for a bill of review are:
(1) a meritorious claim or defense with regard to the underlying cause of action;
(2) which the bill-of-review plaintiff was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake;
(3) unmixed with any fault or negligence on the part of the bill-of- review plaintiff.
Caldwell, 154 S.W.3d at 96; Baker, 582 S.W.2d at 406-07; Davis v. Smith, 227 S.W.3d 299,
302 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Nelson v. Williams, 135 S.W.3d 202,
205 (Tex. App.—Waco 2004, pet. denied).
The elements vary somewhat depending on whether the bill-of-review plaintiff
actually participated in the underlying litigation. See Roger S. Braugh, Jr. & Paul C.
Sewell, Equitable Bill of Review: Unraveling the Cause of Action That Confounds Texas
Courts, 48 BAYLOR L. REV. 623, 645-60 (1996). The traditional elements apply as stated
3 The trial court’s order is entitled “Order Denying Hearing on Petitioner for Bill of Review.” Although this caption suggests that this is an order denying only a hearing, the court stated in the concluding paragraph that it had “no authority to grant the relief requested.” Thus, the order effectively denied Ramsey’s petition.
Ramsey v. State Page 5 above when the plaintiff did not participate in the trial of the underlying cause or for
some reason was prevented from presenting the alleged meritorious claim or defense
during the course of the trial.
However, in Petro-Chemical, the Supreme Court approved the use of a bill of
review for a defendant who fully participated in a trial on the merits in the underlying
cause but did not file a motion for new trial or appeal because the district clerk failed to
give notice that the judgment had been signed. See Petro-Chemical, 514 S.W.2d at 245. In
lieu of establishing a meritorious claim or defense with regard to the underlying claim,
the Court held that a bill-of-review plaintiff in this scenario must establish “a
meritorious ground of appeal.” Id. (quoting Overton v. Blum, 50 Tex. 417, 426 (1878)); see
also San Patricio County v. Nueces County, 214 S.W.3d 536, 544 (Tex. App.—Corpus
Christi 2006, no pet.);4 Thompson v. Ballard, 149 S.W.3d 161, 164 (Tex. App.—Tyler 2004,
no pet.).
Thus, when as here the bill-of-review plaintiff fully participated in the trial on
the merits, the elements for the claim are:
(1) a meritorious ground of appeal;
(2) which the bill-of-review plaintiff was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake;
4 The Corpus Christi Court’s decision in San Patricio County v. Nueces County actually addressed the merits of two separate appeals between the parties: cause no. 13-05-00022-CV and cause no. 13-05- 00075-CV. 214 S.W.3d 536, 541 (Tex. App.—Corpus Christi 2006, no pet.). The appeal docketed under the former cause number concerned a tax suit filed by San Patricio County, while the appeal docketed under the latter number concerned a bill of review filed by Nueces County. Id. at 541. No petition for review was filed with the Supreme Court in the bill-of-review appeal, but a petition has been filed and remains pending in the tax suit appeal.
Ramsey v. State Page 6 (3) unmixed with any fault or negligence on the part of the bill-of- review plaintiff.
See San Patricio County, 214 S.W.3d at 544; Thompson, 149 S.W.3d at 164.
Standards of Review
As a general matter, we review a trial court’s ruling on a bill of review under an
abuse-of-discretion standard. See Davis, 227 S.W.3d at 302; San Patricio County, 214
S.W.3d at 544-45; Thompson v. Tex. Dep’t of Protective & Regulatory Servs., 123 S.W.3d 580,
582 (Tex. App.—El Paso 2003, pet. denied). However, the determination of whether a
bill-of-review plaintiff has made a prima facie showing of a meritorious claim or
defense (or of a meritorious ground for appeal) is a question of law. Baker, 582 S.W.2d
at 408-09; San Patricio County, 214 S.W.3d at 545; In re L.N.M., 182 S.W.3d 470, 474 (Tex.
App.—Dallas 2006, no pet.). Thus, we review this determination de novo. See Reliance
Nat’l Indem. Co. v. Advance’d Temporaries, Inc., 227 S.W.3d 46, 50 (Tex. 2007) (“Appellate
courts review legal determinations de novo”); San Patricio County, 214 S.W.3d at 545.
Baker or Petro-Chemical?
Ramsey contends in his fourth issue that the facts of his case “require a new and
even more liberal protection” for similarly situated plaintiffs than is provided by
current bill-of-review jurisprudence. Ramsey says that Baker and similar cases do not
apply because he did participate in the hearing on his petition for nondisclosure.
However, he also says that Petro-Chemical does not apply because he “was denied the
opportunity to fully present his case at the hearing.” We disagree with this latter
contention.
Ramsey v. State Page 7 The traditional Baker standard applies when the plaintiff did not participate in
the trial of the underlying cause (often suffering a default judgment or dismissal) or was
prevented from presenting a meritorious claim or defense during the course of the trial
because of the fraud, accident or wrongful act of the opposing party or because of
official mistake. See, e.g., Ross v. Nat’l Center for the Employment of the Disabled, 197
S.W.3d 795, 796-97 (Tex. 2006) (per curiam) (default judgment); King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 749 (Tex. 2003) (alleging 1883 agreed judgment was
erroneously rendered by a conspiracy between defendant and plaintiff’s counsel); Davis,
227 S.W.3d at 301 (dismissal for want of prosecution); Nelson, 135 S.W.3d at 204
(alleging attorney husband’s failure to disclose forthcoming settlement which would
yield fee in excess of $200 million and threats to render his law practice worthless if
wife sought an appraisal prevented wife from presenting meritorious claim).
Conversely, the Petro-Chemical standard applies when the bill-of-review plaintiff
participated in the trial of the underlying suit but was prevented from filing a motion
for new trial or appeal because of the fraud, accident or wrongful act of the opposing
party or because of official mistake. See Petro-Chemical Transp., 514 S.W.2d at 245-46; San
Patricio County, 214 S.W.3d at 544; Thompson, 149 S.W.3d at 164.
Here, the Baker line of cases does not apply because: (1) Ramsey participated in
the hearing on his petition for nondisclosure; and (2) he was not prevented from
presenting to the trial court the argument which serves as the basis for his bill of review
(namely, that section 411.081 requires an evidentiary hearing). That the trial court
rejected this argument does not mean that Ramsey was prevented from presenting it,
Ramsey v. State Page 8 even assuming (which we do not) that the court erred by doing so. See McGlothing v.
Cactus Petroleum, Inc., 394 S.W.2d 955, 958 (Tex. Civ. App.—Waco 1965, writ ref’d n.r.e.)
(“judicial error is not ground for vacating a judgment by equitable bill of review”);
Metropolitan Life Ins. Co. v. Pribble, 130 S.W.2d 332, 338 (Tex. Civ. App.—Fort Worth
1939, writ ref’d) (“A court of equity will never set aside or enjoin a judgment on the
ground of error or mistake in the judgment of the court of law.”); Braugh & Sewell, 48
BAYLOR L. REV. at 637 n.87 (“Rendition of an improper judgment without more,
however, is not actionable as official error by bill of review.”).
Instead, Petro-Chemical applies to Ramsey’s case. Ramsey took this position in his
Brief in Support of Bill of Review which he filed with the trial court, and we hold that
he was correct in doing so. Therefore, we overrule Ramsey’s fourth issue.
Necessity of Pretrial Baker Hearing
Ramsey contends in his first issue that the court abused its discretion by failing
to conduct a pretrial hearing under Baker to allow him to present prima facie proof of a
meritorious ground for appeal. His contention arises from the following excerpt from
Baker:
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. The complainant must further allege, with particularity, sworn facts sufficient to constitute [a] defense and, as a pretrial matter, present prima facie proof to support the contention. This preliminary showing is essential in order to assure the court that valuable judicial resources will not be wasted by conducting a spurious “full-blown” examination of the merits.
Ramsey v. State Page 9 The relevant inquiry is not whether “the result would probably be different” on retrial as some Texas cases have indicated. Such a test would require the court to weigh the evidence. Rather, a prima facie meritorious defense is made out when it is determined that the complainant’s defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered. This is a question of law for the court. Prima facie proof may be comprised of documents, answers to interrogatories, admissions, and affidavits on file along with such other evidence that the trial court may receive in its discretion. The bill of review defendant may respond with like proof showing that the defense is barred as a matter of law, but factual questions arising out of factual disputes are resolved in favor of the complainant for the purposes of this pretrial, legal determination. If the court determines that a prima facie meritorious defense has not been made out, the proceeding terminates and the trial court shall dismiss the case.
On the other hand, if a prima facie meritorious defense has been shown, the court will conduct a trial.
Baker, 582 S.W.2d at 408-09 (citations omitted).
In the later case of Beck v. Beck, the trial court conducted a pretrial “Baker
hearing” and dismissed the bill-of-review proceeding because it found that the plaintiff
had failed to make a prima facie showing of a meritorious defense. 771 S.W.2d 141, 141
(Tex. 1989). The court of appeals affirmed on different grounds, assuming without
deciding that the plaintiff had made the requisite prima facie showing but concluding
nevertheless that the plaintiff’s pleadings established her negligence as a matter of law.
Id.
The Supreme Court reversed because the only trial court ruling subject to
appellate review was the determination that the plaintiff had failed to make a prima
facie showing. Id. at 141-42. In other words, the court of appeals erroneously affirmed
the decision on a theory raised for the first time on appeal.
Ramsey v. State Page 10 Ramsey cites Beck for the proposition that a court errs if it fails to first conduct
the pretrial hearing described in Baker. We disagree. As we have explained, the
Supreme Court’s decision in Beck was based not on a failure to follow the suggested
Baker procedure but on the appellate court’s failure to address the sole basis for the trial
court’s decision.
Some appellate courts have implicitly or expressly declined to view the Baker
procedure as an absolute requirement. See, e.g., Thompson, 149 S.W.3d at 165 (“It often
occurs, as it did in this case, that the trial court does not follow the suggested procedure
and makes no pre-trial determination as to whether the bill of review petitioner has
made a prima facie showing of a meritorious defense (or ground of appeal), but tries all
the bill of review issues together.”). The Fourteenth Court of Appeals has explained
why it does not believe Baker to have established a required procedure.
We note that while it is clear that the existence of a prima facie meritorious defense must be determined as a pretrial matter, nowhere in Beck or Baker does the supreme court state that the trial court must conduct a separate hearing in making that determination. Rather, the Beck and Baker courts held only that a bill of review plaintiff must present a prima facie meritorious defense. If the trial court subsequently determines that a defense has not been made out, it may dismiss the case. Moreover, a requirement that a trial court conduct a separate hearing to determine whether a meritorious defense exists would defeat the purpose of such a pretrial determination, that is, judicial economy.
Ortmann v. Ortmann, 999 S.W.2d 85, 88 (Tex. App.—Houston [14th Dist.] 1999, pet.
denied) (citation omitted).
Ramsey v. State Page 11 Even the Supreme Court has not been entirely clear on this matter. In Beck, the
Court described the Baker preliminary procedure as one which they had “directed,” as a
“suggested procedure,” and as an “authorized” procedure. Beck, 771 S.W.2d at 142.
We agree with the Fourteenth Court’s view. The Baker pretrial hearing is a
“suggested procedure” which a trial court may choose not to employ. Accordingly, we
overrule Ramsey’s first issue.
Denial Without Pretrial Hearing
Ramsey contends in his second issue5 that the court abused its discretion by
summarily denying his bill-of-review petition for failure to allege extrinsic fraud or
official mistake without first conducting a Baker pretrial determination regarding
whether he had presented prima facie proof of a meritorious ground for appeal.
We have already determined that the Baker pretrial hearing regarding prima facie
proof of a meritorious ground for appeal is not an absolute requirement. In construing
Baker, however, Beck establishes two related principles for an appeal in a bill-of-review
proceeding.
5 Ramsey’s brief does not present his appellate contentions in a clear, concise, or organized fashion. Cf. TEX. R. APP. P. 38.1(h) (“brief must contain a clear and concise argument for the contentions made”). Nevertheless, we are constrained to construe an appellant’s brief liberally and review “every subsidiary question that is fairly included” within a particular issue or point. See id. 38.1(e), 38.9; In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied); Kaufman v. Comm’n for Lawyer Discipline, 197 S.W.3d 867, 871 n.2 (Tex. App.—Corpus Christi 2006, pet. denied); see also Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 781 & n.5 (Tex. 2005) (addressing similar rule applicable to briefs filed in the Supreme Court).
Ramsey v. State Page 12 (1) If a trial court dismisses a bill-of-review petition for failure to present a prima facie meritorious claim or defense, then that is the sole issue to be reviewed on appeal. See Beck, 771 S.W.2d at 142;6
(2) A bill-of-review proceeding is governed by the rules applicable to civil suits generally and may not be summarily dismissed for a reason other than the failure to make a prima facie showing of a meritorious claim or defense. See Beck, 771 S.W.2d at 142 (citing Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); Tex. Dep’t of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974)); see also Ross, 197 S.W.3d at 798 (criticizing trial court’s dismissal of bill of review because of plaintiff’s failure to appear without first considering lesser sanctions); Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (per curiam) (trial court erred by dismissing bill of review without first giving plaintiff notice and opportunity to be heard); 5 ROY W. MCDONALD & ELAINE A. CARLSON, TEXAS CIVIL PRACTICE § 29:6 (2d ed. 1999) (a bill-of-review “cause proceeds in most respects as would any other civil action”).7
Ramsey’s complaint concerns the second of these principles.
In Ince v. Ince, 58 S.W.3d 187, 189-90 (Tex. App.—Waco 2001, no pet.), this Court
held that a bill-of-review proceeding may be summarily dismissed under Baker if the
plaintiff fails to: (1) file an adequate petition; or (2) make a prima facie showing of a
meritorious claim or defense.
Only upon satisfaction of both requirements will the court grant a new trial. Otherwise, the court will automatically dismiss the case without motion or request from either party. Baker, 582 S.W.2d at 408.
6 Cf. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (summary judgment which does not specify the basis for the court’s ruling may be affirmed only on “theories presented to the trial court and preserved for appellate review”).
7 Cf. Moonlight Invs., Ltd. v. John, 192 S.W.3d 890, 893 (Tex. App.—Eastland 2006, pet. denied) (“a party is generally required to file a special exception to challenge a defective pleading”); Heil Co. v. Polar Corp., 191 S.W.3d 805, 817 (Tex. App.—Fort Worth 2006, pet. denied) (similar statement); Winters v. Parker, 178 S.W.3d 103, 105-06 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (similar statement).
Ramsey v. State Page 13 Id. at 190. Accordingly, this Court held that Derek Ince’s bill-of-review petition was
properly dismissed by the trial court because it alleged only intrinsic fraud. 8 Id. at 191.
On further review, it appears that our reading of Baker was erroneous. In that
case, the Supreme Court established a pleading requirement, namely, a bill-of-review
“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 [the complainant’s] own negligence.” Baker, 582 S.W.2d at 408.
In addition, the Court established what we have now described as a suggested pretrial
procedure for a determination of whether the plaintiff can make a prima facie showing
of a meritorious claim or defense. Id. at 408-09. “If the court determines that a prima
facie meritorious defense [or claim] has not been made out, the proceeding terminates and
the trial court shall dismiss the case.” Id. at 409 (emphasis added). According to the
plain language of Baker, the Court authorized the summary dismissal of a bill-of-review
proceeding only if the plaintiff fails to make this prima facie showing. See Beck, 771
S.W.2d at 142 (“We hold that in conducting the pre-trial hearing authorized by Baker v.
Goldsmith, the only relevant inquiry is whether the petitioner has presented prima facie
proof of a meritorious defense.”).
We cited three decisions other than Baker to support our holding in Ince: Tice v.
City of Pasadena, 767 S.W.2d 700 (Tex. 1989) (orig. proceeding); Transworld Financial
8 To prevail in a bill of review on the basis of fraud, the plaintiff must establish extrinsic fraud as opposed to intrinsic fraud. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003); Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001 (1950).
Ramsey v. State Page 14 Services Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987); and Wise v. Fryar, 49 S.W.3d 450
(Tex. App.—Eastland 2001, pet. denied).
In Transworld Financial Services, the Supreme Court affirmed a trial court’s
dismissal of a bill-of-review proceeding in which the plaintiff had failed to allege
extrinsic fraud. 722 S.W.2d at 407. In Ince however, we failed to consider the
procedural vehicle by which the trial court made this ruling. The pleading defect in
Transworld Financial Services was raised by special exception. See Briscoe v. Transworld
Fin. Servs. Corp., 705 S.W.2d 288, 290 (Tex. App.—San Antonio 1986), rev’d, 722 S.W.2d
407 (Tex. 1987). The trial court sustained the special exception, the Briscoes refused to
amend their petition, and the court dismissed the case. Id. Thus, Transworld Financial
Services does not authorize the summary dismissal of a bill-of-review proceeding for
insufficient pleadings.
Neither does Tice support this proposition. In Tice, a plaintiff whose judgment
the Supreme Court had affirmed filed a mandamus petition with the Supreme Court to
prevent the City of Pasadena (the judgment debtor) from pursuing a bill of review in
the trial court. 767 S.W.2d at 701-02. The Supreme Court held that Pasadena had failed
to allege extrinsic fraud and granted mandamus relief prohibiting and enjoining
Pasadena from further prosecution of the bill-of-review proceeding which raised
matters already fully litigated by the parties and which “would interfere with the
judgment of [that] court.” Id. at 704-05. Because of the unique procedural posture of
Tice, it should not be read as authorizing a summary dismissal for defective pleadings
by the trial court.
Ramsey v. State Page 15 By comparison, Wise appears to support this proposition. However, Wise is not
entirely clear on the matter and, until this Court’s decision in Ince, apparently stood
alone.9 In Wise, the trial court held a pretrial hearing, ostensibly to determine whether
the plaintiff could make the requisite prima facie showing. See 49 S.W.3d at 453-54. In
that hearing, the plaintiff presented testimony relevant to his meritorious defense (lack
of paternity) and to the issue of whether his failure to present this meritorious defense
at trial was without negligence or fault on his part. Id. The trial court denied the
petition “without reaching the merits,” but it is unclear from the opinion what the basis
for the trial court’s decision was. Id. at 452. Nonetheless, the Eastland Court of Appeals
affirmed in part because: (1) the plaintiff failed to establish that his failure to pursue
paternity testing was without negligence or fault on his part; and (2) he alleged and
offered evidence of only intrinsic fraud. Id. at 454-55.
We believe that Wise is inconsistent with Supreme Court precedent insofar as it
stands for the proposition that a trial court may summarily dismiss a bill-of-review
proceeding because of the plaintiff’s failure to make a prima facie showing of any
element of the bill-of-review claim other than the requirement that the plaintiff establish
9 Our research has unearthed no Supreme Court decision since Beck which could be read to support the proposition that a trial court may summarily dismiss a bill of review for any reason other than the plaintiff’s failure to make a prima facie showing of a meritorious claim or defense (or ground for appeal). By contrast, several intermediate appellate courts have, since Wise, indicated approval of the approach taken in Wise and Ince. See, e.g., In re Office of Att’y Gen., No. 12-07-00242-CV, 2007 WL 2318887, at *2 (Tex. App.—Tyler Aug. 15, 2007, orig. proceeding) (mem. op.); In re Att’y Gen., 184 S.W.3d 925, 927- 29 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam); Temple v. Archambo, 161 S.W.3d 217, 226- 27 (Tex. App.—Corpus Christi 2005, no pet.). Another line of cases, which predates Wise, holds that a bill-of-review plaintiff is not entitled to pretrial paternity testing under the discovery rules if the plaintiff’s pleadings do not adequately allege the requisite elements for the bill-of-review claim. See, e.g., Amanda v. Montgomery, 877 S.W.2d 482, 486-87 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding); Spears v. Haas, 718 S.W.2d 756, 758 (Tex. App.—Corpus Christi 1986, orig. proceeding). However, this line of cases does not authorize a summary dismissal because of inadequate pleadings.
Ramsey v. State Page 16 a meritorious claim or defense (or ground for appeal). See Ross, 197 S.W.3d at 798; Gold,
145 S.W.3d at 214; Beck, 771 S.W.2d at 142. We overrule our decision in Ince to the extent
it stands for the proposition that a trial court may summarily dismiss or deny a bill-of-
review proceeding due to insufficient pleadings. Id.
Accordingly, we hold that the trial court erred when it summarily denied
Ramsey’s bill-of-review petition for failure to allege extrinsic fraud or official mistake
because that issue was not raised by special exception or other proper motion.
Harm
We now determine whether this error is subject to a harm analysis. The
Fourteenth Court has concluded that procedural errors of this nature in a bill-of-review
proceeding are not subject to a harm analysis. Boateng v. Trailblazer Health Enters.,
L.L.C., 171 S.W.3d 481, 494 (Tex. App.—Houston [14th Dist.] 2005), pet. denied sub nom.
United States v. Boateng, 50 Tex. Sup. Ct. J. 652, 2007 WL 1160435 (Tex. Apr. 20, 2007) (per
curiam). “The cases [the Fourteenth Court] found hold that this error is not subject to a
harm analysis.” Id. We decline to follow the Fourteenth Court’s lead in this regard.
First, the Fourteenth Court cited six decisions in bill-of-review cases which
reversed the trial court’s judgment without conducting a harm analysis. Id. However,
not one of these cases addressed whether a harm analysis should be conducted.
More importantly, the Supreme Court has conducted a harm analysis in a
procedurally similar case. See Caldwell, 154 S.W.3d at 98. In Caldwell, the trial court
conducted a pretrial hearing in which the plaintiff Caldwell presented evidence that he
Ramsey v. State Page 17 had not been served with process.10 However, conflicting evidence on this issue was
presented during the hearing and, after the hearing, the court rendered a decision
denying the bill of review, largely because it did not find Caldwell to be a credible
witness. Id. at 96. The Supreme Court held that the trial court erred by summarily
determining this issue without a trial but did not reverse until it determined that this
was “harmful error.” Id. at 98; see also Elliott v. Elliott, 21 S.W.3d 913, 921-22 (Tex.
App.—Fort Worth 2000, pet. denied) (holding that the bill-of-review plaintiff was not
harmed by trial court’s exclusion of expert opinion testimony during preliminary Baker
hearing).
Under Rule 44.1(a), a trial court error requires reversal if it: (1) probably caused
the rendition of an improper judgment; or (2) probably prevented the appellant from
properly presenting the case to this Court. TEX. R. APP. P. 44.1(a).
Here, the trial court dismissed the case because Ramsey failed to allege extrinsic
fraud or official misconduct. Ordinarily, a pleading defect must be challenged by
special exception. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Moonlight
Invs., Ltd. v. John, 192 S.W.3d 890, 893 (Tex. App.—Eastland 2006, pet. denied) (“a party
is generally required to file a special exception to challenge a defective pleading”); Heil
Co. v. Polar Corp., 191 S.W.3d 805, 817 (Tex. App.—Fort Worth 2006, pet. denied) (similar
statement); Winters v. Parker, 178 S.W.3d 103, 105-06 (Tex. App.—Houston [1st Dist.]
10 The purpose of this pretrial hearing was apparently to determine whether Caldwell could make a prima facie showing of a meritorious defense. See Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979). However, the Supreme Court explained in Caldwell that, when a bill-of-review plaintiff alleges lack of service, no preliminary Baker hearing is required and the plaintiff is entitled to a trial on the issue of whether he was served. See Caldwell v. Baker, 154 S.W.3d 93, 97-98 (Tex. 2004) (per curiam).
Ramsey v. State Page 18 2005, no pet.) (similar statement). “However, when the pleading deficiency is the type
that cannot be cured by an amendment, a special exception is unnecessary and a
summary judgment based on the pleading’s failure to state a legal claim is in order.”
Heil Co., 191 S.W.3d at 817 (citing Friesenhahn, 960 S.W.2d at 658).
The primary purpose of a special exception is to give the pleader notice of a
pleading deficiency and an opportunity to cure by amending the pleading. See
Friesenhahn, 960 S.W.2d at 659; Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.—
Beaumont 2001, no pet.). But settled case law establishes that the pleader need be
granted the opportunity to amend “only if it is possible to cure the pleading defect.”
Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Here, the defect
cannot be cured.
To prevail in this proceeding, Ramsey must allege and prove under Petro-
Chemical that he was prevented from pursuing a meritorious ground of appeal because
of extrinsic fraud or official mistake, unmixed with any negligence of his own.11 See San
Patricio County, 214 S.W.3d at 544; Thompson, 149 S.W.3d at 164. However, much of
Ramsey’s trial pleadings and appellate briefing focus on alleged fraud and official
mistakes which prevented him from presenting additional evidence in the “trial” of his
original petition for nondisclosure. But he clarifies on page 25 of his appellant’s brief
the reason he failed to pursue an appeal of the trial court’s denial of the petition for
nondisclosure. “Appellant, acting in a pro se capacity, was under the impression that
11 By reciting the Petro-Chemical bill-of-review elements, Ramsey acknowledged as much in the brief he filed with the trial court in support of his bill of review.
Ramsey v. State Page 19 such a ruling was a final ruling and not subject to appeal, a belief that was in error, but
not due to negligence.” Ramsey made a similar statement on page 2 of the brief he filed
in the trial court in support of the bill of review. “Because the Petitioner was uncertain
of the right of appeal, combined with the heavy burden of proving abuse of discretion,
the Petitioner did not file a timely appeal.”
“Assertions of fact, not plead in the alternative, in the live pleadings of a party
are regarded as formal judicial admissions.” Holy Cross Church of God in Christ v. Wolf,
44 S.W.3d 562, 568 (Tex. 2001) (quoting Houston First Am. Sav. Ass’n v. Musick, 650
S.W.2d 764, 767 (Tex. 1983)); accord Green v. Ransor, Inc., 175 S.W.3d 513, 517 (Tex.
App.—Fort Worth 2005, no pet.). This rule applies to appellate pleadings as well as trial
pleadings. See Tex. Dep’t of Human Servs. v. Okoli, No. 01-07-00103-CV, 2007 WL
1844897, at *6 (Tex. App.—Houston [1st Dist.] June 28, 2007, pet. filed); Jansen v.
Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Thus, Ramsey judicially admitted that his failure to file an appeal was not due to
fraud (extrinsic or intrinsic) or any official mistake. Accordingly, it is not possible for
him to amend his pleading to allege otherwise, and “[r]emanding this case would serve
no legitimate purpose.” See Koseoglu, 233 S.W.3d at 840.
For these reasons, we hold that the trial court’s error in summarily denying
Ramsey’s bill of review did not result in the rendition of an improper judgment or
prevent Ramsey from properly presenting his case to this Court. See TEX. R. APP. P.
44.1(a). We overrule Ramsey’s second issue.
Ramsey v. State Page 20 Conclusion
In view of our dispostion of Ramsey’s second issue, we need not address the
remaining issues. Id. 47.1. We affirm the judgment.
FELIPE REYNA Justice
Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs with the following note: “The majority fails to recognize why and when a pretrial hearing is not required in a bill-of-review proceeding and thus erroneously holds the trial court erred and overrules prior precedent of t his Court. A trial court can dispense with the pretrial hearing in a bill-of- review proceeding if it rolls the issues to be decided in that hearing into a trial on the merits. The issues are the same and must be decided. There is frequently confusion about what constitutes a hearing, but I need not elaborate on that in this context. The trial court held its hearing in which it decided Ramsey was not entitled to proceed by bill-of-review. Properly following the precedent of this Court, cited by neither party and not argued as erroneously decided by either party, I would hold the trial court did not err and affirm its judgment. Thus I concur in the judgment, but only the judgment, of the Court which affirms the trial court’s judgment.”) Affirmed Opinion delivered and filed January 16, 2008 [CV06]
Ramsey v. State Page 21