Roy Jon v. Julie Spivey

• Court: Court of Appeals of Texas
• Decided: February 17, 2005
• Docket: 06-04-00112-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00112-CV

ROY JON, Appellant

V.

JULIE SPIVEY, ET AL., Appellees

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On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 04-C-1211-202

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Roy Jon sued the Texas Department of Criminal Justice—Institutional Division and Julie Spivey and Zelda Glass, employees of the institution. Jon alleged defamation, slander, and abuse of official capacity. The trial court dismissed the lawsuit as frivolous January 23, 2002. Jon filed a motion to reform the judgment February 28, 2002, and a notice of appeal May 30, 2002. This Court dismissed the untimely appeal for want of jurisdiction. Jon v. Tex. Dep't of Criminal Justice, No. 06-02-00075-CV, available at <www.6thcoa.courts.state.tx.us>, Select: Opinion Search, Enter Case Number: 02-075-CV (Tex. App.—Texarkana July 2, 2002, no pet.) (not designated for publication).

            On September 1, 2004, Jon filed this bill of review action against Spivey. The trial court denied the bill of review, and Jon appeals. Essentially, Jon is once again arguing that his prior appeal was timely. The timeliness of his appeal was addressed in his previous appeal and will not be addressed again.

            A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or an appeal. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). Bill of review plaintiffs must ordinarily plead and prove (1) a meritorious claim; (2) which the plaintiffs were prevented from making by fraud, accident, or wrongful act of the opposing party, or official mistake; and (3) unmixed with any fault or negligence on their own part. See id. at 406–07.

            In this matter, Jon has not pled or proved any of the elements that are necessary for a bill of review. We find the trial court's order denying the bill of review was not an abuse of discretion, and it is affirmed.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          February 8, 2005

Date Decided:             February 17, 2005