David Lancaster v. Barbara Lancaster
01-14-00845-CV
| Tex. App. | Apr 8, 2015Background
- David and Barbara Lancaster divorced in 2012; Barbara obtained a default family-violence protective order against David after he did not appear at a September 9, 2009 hearing.
- David was served with notice of the default protective order in mid-October 2009 (more than 20 but less than 90 days after the judgment) and did not file a motion for new trial or a timely direct appeal; he later left town.
- David was twice convicted of violating the 2009 default protective order; a second protective order was entered in 2012 based on those violations.
- David filed a bill of review in January 2013 seeking to set aside the 2009 default protective order; the trial court denied relief, finding David failed to show due diligence or that the default resulted without his own fault or negligence, and awarded attorney’s fees to Barbara.
- On appeal and related filings, this Court affirmed the 2012 order and denied/dismissed David’s mandamus/prohibition petitions; the present appeal challenges denial of the bill of review and raises assorted service, notice, and due-process complaints.
Issues
| Issue | Plaintiff's Argument (Lancaster) | Defendant's Argument (Barbara) | Held |
|---|---|---|---|
| 1. Whether trial court abused discretion in denying bill of review | Bill of review should be granted because of defects in service/notice and alleged fraud/conspiracy that prevented a fair proceeding | Trial court properly denied bill of review: David failed to exhaust appellate remedies, was negligent (did not appear or move for new trial), and did not show extrinsic fraud | Denial of bill of review affirmed — trial court acted within its discretion given unchallenged factual findings of negligence and failure to pursue available remedies |
| 2. Adequacy/timeliness of service and notice for the 2009 protective-order hearing | Service/return defects, late citation, and delay in issuing orders deprived David of due process | Record shows David was served; statutory provisions allow issuance of ex parte/temporary orders and service within short intervals is effective; any defects were waived by failure to timely appeal | Service-related complaints are waived for bill-of-review purposes because David failed to exhaust timely remedies; not a basis for bill of review relief |
| 3. Allegations of perjured testimony, prosecutorial misconduct, and conspiracy | False testimony and prosecutorial/official misconduct amount to fraud warranting bill of review | Alleged false testimony is intrinsic (could have been litigated) not extrinsic fraud; mere falsity does not satisfy bill-of-review standard; nothing prevented David from defending himself at the 2009 hearing | Intrinsic fraud claims insufficient for bill of review; allegations do not meet extrinsic-fraud requirement and are waived by lack of prior challenge |
| 4. Procedural/briefing defects and waiver of issues on appeal | Incorporates arguments from earlier mandamus petition and asserts various errors by lower courts/officials | Many arguments are inadequately briefed or not raised below; procedural rules (Tex. R. App. P. 33, 38.1) and exhaustion principles bar consideration | Court declines to consider unbriefed or waived points; appellee’s procedural objections sustained and primary judgment affirmed |
Key Cases Cited
- Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010) (bill-of-review and post-judgment-relief principles)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (abuse-of-discretion standard for reviewing trial-court rulings)
- Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979) (elements required to prevail on a bill of review)
- Ross v. Nat'l Ctr. for the Employment of the Disabled, 197 S.W.3d 795 (Tex. 2006) (lack of service can defeat trial court jurisdiction)
- Caldwell v. Barnes, 975 S.W.2d 535 (Tex. 1998) (service issues and bill-of-review considerations)
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (when an order is final for purposes of appeal and plenary power implications)
- State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463 (Tex. 1989) (procedural steps and standards for bill-of-review proceedings)