550 S.W.3d 791
Tex. App.2018Background
- Marathon (plaintiff) sought an equitable bill of review after a 2015 trial-court order dismissed its indemnity claims against Cherry for want of prosecution; Marathon says it first learned of the dismissal on September 2, 2015, after appellate/time-for-relief deadlines had passed.
- Underlying litigation dated to a 1998 industrial-accident demolition claim; extensive settlement negotiations and a long abatement occurred while the primary insurer (Frontier) was in liquidation.
- Marathon contends the Galveston County District Clerk mailed the Rule 165a DWOP notice and the Rule 306a signed-order notice to Marathon’s counsel’s old West Loop address, not to counsel’s updated Bering Drive address.
- Marathon’s counsel had updated his address in the Galveston County Attorney Register in 2010 and had filed multiple status letters in the case showing the Bering Drive address, though no formal change-of-address pleading was filed in the case.
- Cherry moved for summary judgment arguing (inter alia) no evidence of official mistake and that any clerk error was mixed with Marathon’s fault; the trial court granted summary judgment without specifying grounds.
- The court of appeals reversed and remanded, holding genuine fact issues exist whether the clerk committed an official mistake in choosing the address and whether any mistake was unmixed with Marathon’s fault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 165a/306a require clerk to use the address shown in the court file rather than an attorney register | Marathon: clerk used wrong address (West Loop) despite counsel updating Galveston County Attorney Register to Bering Drive; that was official mistake | Cherry: clerk properly sent notices to counsel’s last-known address (West Loop); Marathon had duty to file a change in the case | Court: Rules do not specify which address to use; clerk may use attorney registers as administrative convenience; no per se rule that register use is unlawful |
| Whether clerk’s use of the old address constituted an "official mistake" | Marathon: mailing to the West Loop address despite registry and recent filings showing Bering Drive raises fact issue of official mistake | Cherry: prior cases require notice in the file; use of register was proper and not an official mistake | Court: summary-judgment evidence (updated register + status letters) raises a genuine fact issue on official mistake; reversal warranted |
| Whether Marathon must file a change-of-address in the case before complaining of clerk error | Marathon: not required; updating county attorney register and filings with Bering Drive provided notice to clerk | Cherry: bright-line rule should require filing a change in the case to avoid dismissal | Court: no statute or rule imposes that bright-line requirement; counsel not strictly required to file a change-in-case to avoid an official-mistake claim |
| Whether any alleged official mistake was "unmixed with" Marathon’s fault or negligence (required element for bill of review) | Marathon: evidence shows clerk error prevented timely pursuit and that Marathon was not at fault (registry update, status letters) | Cherry: Marathon had periods of inactivity, did not file a change-in-case, and thus any error was mixed with Marathon’s negligence | Court: factual dispute exists whether the clerk’s mistake prevented Marathon from litigating unmixed with Marathon’s fault; summary judgment improper |
Key Cases Cited
- M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (summary-judgment burden shifting)
- Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) (no-evidence summary-judgment standard)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (de novo review; consider evidence favorable to nonmovant)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (genuine issue standard)
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (affirmance if any independent ground supports summary judgment)
- Valdez v. Hollenbeck, 465 S.W.3d 217 (Tex. 2015) (elements of equitable bill of review)
- Mabon Ltd. v. Afri-Carib Enter., Inc., 369 S.W.3d 809 (Tex. 2012) (due-process/lack-of-notice line of cases affecting bill-of-review elements)
- Osterloh v. Ohio Decorative Products, 881 S.W.2d 580 (Tex. App.--Houston [1st Dist.] 1994) (address-in-register issue; court declines to follow)
- Withrow v. Schou, 13 S.W.3d 37 (Tex. App.--Houston [14th Dist.] 1999) (attorney in charge responsibility to notify court of address changes)
- Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987) (definition of "official mistake" for bill-of-review purposes)
- Katy Venture v. Cremona Bistro Corp., 469 S.W.3d 160 (Tex. 2015) (contexts where bill-of-review elements may shift)