McDaniel v. Hale

We conclude Benchmark Bank did not es- right summary judgment

tablish its as a

matter of law. We conclude State Farm

Lloyds right summary established its Gibbs,

judgment as a matter of law. See

S.W.2d at 828. We overrule Benchmark’s

points of error.

We affirm court’s McDANIEL, Appellant,

Lannis Bearl

Reginald Eugene Johnny HALE and Trucking Company,

Appellees.

No. 07-93-0146-CV. Texas, Appeals

Court of

Amarillo.

Dec.

Rehearing Overruled Feb.

654 Berry & John- Stein Wilson

Underwood Parker, Amarillo, son, Kelly Utsinger, Kevin appellees. C.J., REYNOLDS, and BOYD Before POFF, JJ. REHEARING FOR

ON MOTION POFF, Justice. appellees’ motion

Upon consideration of motion, rehearing, overrule the with- for opinion original and substitute draw our opinion place. in its appeals Lannis Bearl McDaniel proceed- in a judgment entered lawsuit, ing. As sought damages from defendants McDaniel Johnny Reginald Eugene Hale and Goodnoh (Goodnoh Trucking) for Company Trucking injuries All traffic accident.1 suffered in a trial parties appeared participated jury returned its verdict before verdict, By jury its found 1988. June $82,068in McDaniel should be awarded actu- $250,000 damages exemplary dam- al 16, 1988, ages. Hale Goodnoh June On in.which Trucking a motion for new trial filed they damages excessive.2 contended the were judgment judge signed The on June 23,1988, clerk the trial court failed but the give Trucking Hale or them and Goodnoh attorney judgment notice of by for Hale and Goodnoh law.3 Counsel Trucking, Briley, did not learn the Steve April signed until judgment had been appeal the By it was too late to 1989.4 then Trucking’s judgment and Hale and Goodnoh Wolfe, by trial had been overruled Craig Hunt Terrill & motion for new Can’ Fouts Hunt, Bellair, Lubbock, Bliley petition filed Gary operation of law. M. M. Donald Associates, the next K. bill of review on behalf of clients K. Altman & William William Falls, day.5 Altman, appellant. Wichita signed, the of the court shall imme- No. order is clerk 1. lawsuit was denominated Cause 7537. The diately give parties their attor- or notice they were

2. Hale and Goodnoh knew advising by neys first-class mail of record judg- filing their motion for new trial before signed." judgment order was prohibition signed. There ment against doing filed, "A for new if this. motion previously had not 4. defendants themselves The thirty days prior to or within shall filed signing of the learned signed.” ... Tex.RXiv.P. after added). 329b(a) (emphasis proceeding denominated bill of review 306a(3) Rule Civil Procedure states: 3. Texas Cause No. appealable the final or other “When Upon demand,6 the by McDaniel’s trial on the be met in order obtain relief bill of review jury. was conducted before a following review. As the review of these One jury’s show, answers was such as requirements cases will for obtain- defeat Hale and Goodnoh in their ing depending differ on the attempt underlying judgment particular to have the set fact situation. But,

aside means of their bill of review. Tracking’s Hagedom A Alexander notwithstanding verdict, Any discussion the Texas bill the trial disregarded particular proceeding begin must with the cele granted answer for bill brated Hagedorn, case of Alexander of review. The trial court set aside the (1950). case, Tex. 226 S.W.2d 996 This underlying judgment and ordered a tri- nearly every familiar graduate law school al.7 State, across the Lone Star involved Upon retrial of suit McDaniel’s specifically, a mule that wandered mule— Trucking, Hale and again McDaniel highway onto a front a car driven prevailed, although was awarded a lesser Mrs. W.C. Alexander. order to avoid amount of than the first trial. mule, striking the Alexander Mrs. was com McDaniel now on the pelled to steer automobile her into a ditch. the granting trial court erred Hale and overturn, thereby This caused the car Goodnoh Trucking’s petition for bill of re- injuring the unfortunate driver.9 view.8 that prays McDaniel the reverse Mrs. Alexander her husband filed suit granting trial court’s order the bill of review against Hagedorn, alleging one William original judgment. and reinstate the Hagedorn responsible was for Mrs. Alexan- injuries der’s because was the owner REQUIREMENTS I. FOR SUCCEED- the permitted large mule аnd had it to run at ING UPON A BILL OF REVIEW upon highway and unattended the in violation IN TEXAS common, of a local As is stock law. citation “A independent bill of equita review is an upon Hagedorn by was served defendant the brought party action aby ble to a former deputy typical sheriff. Unlike defen- seeking judgment, action to set aside dant, however, 75-year-old Hagedorn longer subject appealable is no or to motion was unable to or write English read Goldsmith, for new trial.” Baker language. being case, That Hage- when (Tex.1979). According citation, dorn was served he re- Procedure, the Texas Rules of Civil “[o]n quested deputy explain sheriff its expiration of the within which time the trial meaning. deputy Hagedorn The informed plenary power, court has cannot being that he was sued was by except by set aside the trial court a bill appear in Sep- district court at Lockhart on cause, review for filed within the sufficient 1, 1947, tember to answer the suit. 329b(f) by time allowed law.” Tex.R.Civ.P. added). (emphasis Dutifully, rules Hagedorn The themselves do went to the district nobody not define September Finding “sufficient cause” but the Texas courtroom on Court, there, Supreme in a series of well-known he went district to the clerk’s office cases, requirements has set out the that must and told the clerk he had come to answer the McDaniel, Co., course, Trucking was the defendant in the No. 07-89-0403-CV writ) proceeding. 11, 1991, Hale and Goodnoh (Tex.App. Amarillo, February — plaintiffs. review (not were the bill of designated publication). for granting 7. The trial court's order error, points 8. McDaniel four advances each granting bill of review and grant- trial of which declares the court erred in interlocutory a new trial was order. ing the bill We will of review. consider the four attempted McDaniel of that order to appeal points of error as one. this court but we dismissed want jurisdiction because of order's interlocu- mule, tor)' Johnny apparently, v. Hale and 9. The was unharmed. nature. See McDaniel requirements for a successful Hagedorn told enunciated the Alexanders’ suit. The clerk Rosser, review, and, see Hanks v. bill of that no court would be held week J., (Tex.1964) (Griffin, dissent- upon Hagedorn’s request, agreed notify gone Hagedorn has down ing), Alexander him when he was to return defend history concern- the landmark decision as Hagedorn returned home and did suit. then every Nearly in Texas. ing the bill of review until the next nothing more about the suit dealing bill of with the subsequent opinion garnishment had April when he learned that Hagedorn opinion its cited following a run his bank account guide. against him default rendered 8,1947. re- Hagedorn employed succinctly setting December then forth three After final attorneys quirements setting a bill action. aside a who filed review, Supreme Court granted the bill of review and a bill of The Hagedorn by proceeded upheld Court to determine that decision was Austin judgment against to have the appealed The entitled Appeals. Alexanders he did not meet Supreme him set aside because Court. Texas Supreme The requirements. final two that in order Court declared Hagedorn agreed courts with the lower litigant successfully a bill of for a invoke to the cause had a meritorious defense proceeding judg- a final to set aside belong action, namely: the mule did ment, allege prove: “he must But, Hagedorn found that the court him. (1) cause a meritorious defense to the prevented asserting from had not been judgment, action fraud, wrongful accident defеnse prevented making which he act Nor did the court Alexanders. fraud, wrongful accident or act Hagedorn negligence. find that was free opposite party, short, although not his mule in the it was road, negligence Hagedorn with fault or unable to unmixed of the was middle liability.10 escape own.” Hagedorn by prototypical at the Id. 226 998. While this was no Alexander v. is case, i.e., a a defen- first time the case where means the Texas courts had joined by Taylor, a did own the mule that caused 10. In dissent Justice Justice fense”. He not Smedley permit run at as accident and he did it to took issue with what he viewed an the large. result, According opinion majori- to the inequitable declaring: pay respondent petitioners ty is to impossible agree opinion I to find it the $3,000 as for which he more than judgment reversing majority the and the and way responsible. was in no judgments rendering the Court Civil Hagedorn, 226 S.W.2d at 1003 v. Alexander Court, Appeals and the District because that J., (Smedley, dissenting). opinion resulting judgment and the treat the majority recognize the unfair- The seemed rules, applicable equitable rules as inflexible but, in words that have since result ness ignoring equity are the fact that rules cases, quoted many said: been adaptable particular flexible and measure fundamentally important in the Because it is exigencies. doing permitting In so the Court is finality justice that some administration gross wrong party one in this case to suffer judgments, [the these essentials accorded denying party, and is the hands other requirements] been review three bill of Court, although equity courts; therefore, it is court and this recognized by uniformly our authority equitable proceeding, seeking judgments relief bills review peculiar apply rules to the facts jealousy, the established always with extreme "are watched gross way prevent this case in such as of injustice. will be grounds which interference and restricted”; suggest I do not that the rules be and and the are narrow allowed changed disregarded, only they merely but because it are not to be relaxed rules reasonably fairly adapted appear particular and may should be case that an some by Su- injustice of the case. If this cannot be done. As said fitted to done, facts has been California, litigation, equity is a court of for? "Endless preme what Court of determined, nothing finally majority that re- ever admit and must admit in which miscarriages Hagedorn spondent occasional had and has meritorious would be worse than justice.” The trial court defense to suit. (cita- Hagedorn, respondent 226 S.W.2d found from abundant evidence Alexander omitted). Hagedorn complete “had a and absolute de- tions judgment dant ately suffers a default telephoned and does not the district clerk’s office and learn of it until the time to file a by motion for was informed clerk that while the suit action, new trial judgment ripe or to judgment yet had passed. been prepared The defendant seeks to taken. DeLee then have the an an- judgment default swer set aside in order and carried it him to the that he district may have an clerk’s opportunity morning. Upon office the next being show he has a again by defense to the informed the district clerk cause of action judgment taken, by plaintiff. the successful had still Contin- DeLee gent upon reality, filed satisfying judg- the answer. the three bill of default requirements, previous ment provided day. had been the defendant is taken Had case, allegations avenue to DeLee defend the known that to be the him. have filed a motion for new trial instead of an by As later recognized Supreme Court, answer. Alexander Hagedom representative case, the “usual” bill of review Hanks and DeLee did not learn the three the default requirements had been taken until invariably set forth the case two months apply in later such cases. when Rosser had an Petro-Chemical Trans execution on the port, Carroll, Inc. v. default issued district court (Tex.1974). But, and delivered sheriff proper levy while rule set forth Hagedom entirely drugstore “is sound sale of a applied owned Hanks. to a promptly defendant DeLee who suffered default filed bill of review on proper behalf, after personal citation, contended, Hanks’ service of ... which he inter alia, govern disposition does not that he file a of all did not motion for bill of only cases.” because he relied on Id. at The first false informa- case to add a twist to tion from Hagedom rule clerk. The trial was Hanks district court Rosser, (Tex.1964). granted the bill 378 S.W.2d 31 of review but the Beaumont Court Appeals of Civil judg- reversed the

B. Hanks Rosser ment of the trial reinstated the judgment. default Hagedom, Unlike the Hanks v. Ros ser case wayward did not involve mule. case, analyzing ‍​​‌​‌​​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​‌​​​‌​​​​‌‌​‍however, Hagedom, Like Hanks arose out of general recited the concerning rules default But Hanks was not the granting of a bill of review as set forth in usual bill of review case. Hagedom. proceeded then The court to lib- general eralize those rules to deal with the Jerry by Joseph Hanks was sued Rosser. particular Specifi- fact situation at hand.11 Hanks process was served with and he tele- “[sjince cally, the court held that there was a Thomas, phonеd an attorney, who told Hanks given reliance on the erroneous information bring papers to to his office. Hanks by clerk, unnecessary was Hanks to so, however, appearance never did day and accident, fraud, ... show some wrongful or passed being without an answer filed. Rosser, opposing party." act of the Hanks v. Thomas default learned that a was essence, 378 S.W.2d at 34. the second going to be taken Hanks so he called Hagedom requirement expanded was Hanks and advised him to file an answer. read: Hanks, represent Thomas declined to but (2) suggested attorney he prevented contact an named A.A. making he was from fraud, DeLee. day by Hanks visited DeLee the next wrongful accident or act explained the situation. opposite party DeLee immedi- or which he was Court, 11. "Hanks v. Rosser indicates a more liberal out- by Tex.L.Rev. tion Given Clerk by application (1964) look the court in of the ele- Equitable [hereinafter Review]. Bill of necessary equitable ments relief set out in the by Appeals, As noted the Dallas Court of "Hanks Trigg much criticized case.” John Hagedom Ca- substantially reduced the burden the defen- baniss, Note, Equitable Bill obtaining underlying dant PROCEDURE— [in case] a bill Judgment Which Had Become Review—Default Final Set Aside Gant, of review.” Parker v. Timely Failure Where To File n.r.e.). (Tex.Civ.App. writ ref'd —Dallas Motion For New Trial Was Result of Misinforma- (c) injury opposite will result prevented making from of er- because review, by the bill of party granting given by roneous information the court clerk. See id. 34-35. Supreme decided that The additionally recognized that the court any fault or examining was whether there by dis- provided information erroneous plain of review negligence part bill оn prevent from trict court clerk did not Hanks plaintiffs failing to answer the tiff Hanks in filing allegations against an answer be mea negligence or should petition, fault Rather, him. the clerk’s erroneous informa- by negligence of the standard for sured his to file a tion caused Hanks miss chance new non-answering in a motion for defendant ex- motion for new trial. Even under an by standard rather than trial situation12 however, panded requirement, a bill second typical in a negligence complainant for a granted. This of review could not be was proceeding.13 This be review was provided clerk erroneous because while the trial, new had Hanks filed motion for cause information, prevent not that information did negligence filing an answer would filing thereby Hanks from answer by motion for new been measured have advancing a to the cause meritorious defense opinion The Hanks v. Rosser trial standard. of action effectively plaintiff put the bill Recognizing inequity that would result position in had he would have been same application in a strict Alexander v. from the he correct information received rules, Hagedom Court devised timely for new court clerk and filed motion special a new test for situation with trial.14

which it was confronted. the new Under opinion noteworthy that does It is test, plaintiff a bill of review could succeed require the bill show alleging proving: fading to negligence file absence (1) a failure to file a motion for new motion for new trial. Nor such to file a show that his failure (2) prevented filing by which was for new trial neither intentional the misinformation of an officer of the nor indifference. the result conscious duties, acting his official within find that Hanks The court went requirements to obtain relief fulfilled the five requirements that must the three bill of from the default review. proved in order to new trial partic- important the result More than granted there been default where case, however, ular was the fact that judgment, namely: upon a requirements to succeed (a) the failure answer the in a limited fact situation.15 had been created con- not intentional the result of indifference; scious Transport, C. Petro-Chemical Inc. v. Carroll (b) the of a meritorious defense to cause judg- paragraph Supreme of action to the the first the ment; Trans opinion Court’s in Petro-Chemical and a com a to show that such failure involved 12. Where a movant for new trial suffered ition judgment, plete negligence. default can have his motion of or absence fault that, alia, showing granted by inter failure to answer the lawsuit was intentional Review, Equitable at 115 14. Bill Tex.L.Rev. of the of indifference. Craddock or result conscious n. 3. Lines, 388, 393, 134 Tex. v. Sunshine Bus (1939). dissent, by "[t]he in 15. As noted Justice Griffin regards as it has with to bills of review law Thus, opinion the v. Rosser made it Hanks jurispru- beginning the of Texas existed since plaintiff a bill to suc- much easier for of review changed majority opin- by the dence has been undoubtedly show ceed. It is much easier to (Griffin, Rosser, 378 S.W.2d at ion.” Hanks to answer that one's failure J., dissenting). indifference or the result of conscious intentional Carroll, (Tex. port, Inc. required “show, 514 S.W.2d 240 cal’s situation would be to 1974), parties we learn that appeared least, “[a]ll prima ground at a meritorious facie participated in [underlying] and trial be appeal.” Id. The court defined meritorious jury.” fore a Id. 242. This was a bill which, ground had it been one proceeding arising of a out full-blown presented designed, court as nativity triаl on nothing the merits —its had “might, would, probably and [caused to do with a judgment. default judgment be] Id. reversed.”. court, in currently As the case before the Unlike, Hanks, complainant in bill of in the district clerk Petro-Chemical failed to put Petro-Chemical was not notify the judge defendant that the trial had exactly position in same would have signed predecessor Under the in judg- been had it received notice of the rule to current Texas Rule of Civil Procedure Supreme ment it. The Court de- 306a(3), “[ijmmedi- required the clerk was clared that “had ately upon signing any final showing the burden of that its failure to file a order, appealable post- or other ... mail a motion for or appeal new trial was not due to card notice party thereof to each to the suit.” any negligence part fault or [it] Court, by Supreme Id. at As noted in Accordingly, its counsel.”17 order for Pe- purpose obvious in- “[t]he of this rule is to tro-Chemical to succeed its bill of re- that, practicable, parties sure insofar as ad- view, required prove: allege it was versely by affected a final or other (1) a to file a motion failure for new trial appealable opportunity order have an to at- or a an appeal, failure advance by tack same motion for new trial or appeal.” (2) Id. Because of the clerk’s failure by caused failure the court clerk to inform it that been had give required judg- notice that a signed, defendant Petro-Chemical missed the signed; ment had filing deadlines for new trial and (3) or negligence unmixed fault advancing own; its right Defendant Petro-Chemical based its appeal (prima a meritorious to a bill of review on the clerk’s failure to proof only). send the noticе. The agreed, holding “a D. Baker v. Goldsmith may predicated on clerk’s failure (Tex. Goldsmith, Baker v. 582 S.W.2d 404 [required] send the Id. 245.16 notice.” 1979) presented a factual much like scenario noted, however, The court that the fact the in Hanks Rosser. Edward and Ju defendant Petro-Chemical lost had its chance liette Goldsmith were sued Vernon showing did not excuse it from Upon being Audane Baker. served with cita pro- meritorious defense the bill of review tion, words, Edward Goldsmith sent letter to the ceeding. In other loss of judge district court which the suit appeal, chance to like the loss the chance Hanks, pending substantially wherein he denied file motion new trial did allegations petition. not constitute a meritorious the Baker Al defense Rather, though itself. a defendant in employ- Petro-Chemi- the letter was received See, Transport, 16. The court found no be- material difference difference. Carroll, Inc. Petro-Chemical giving tween court clerk's affirmative act of only remaining 514 S.W.2d at 244. performance erroneous information complainant difference is that the in Hanks did (as ) clerk's official duties in court Hanks not answer the lawsuit and suffered a required clerk's failure to send the notice. judgment complainant default while the Petro- in participated Chemical in a full-blown trial. This Thus, Petro-Chemical is not consistent appear difference does not to be reason for re- cases, plaintiff In the Hanks. both review quiring in the bill of Petro-Chemi- prevented filing was from for new trial. negligence to show absence or in cal of fault complainant The fact that the in Hanks received failing new to file a motion for trial but not clerk misinformation from the court while the requiring the bill of review in Hanks to complainant in received Petro-Chemical no infor- showing. make a similar mation from the clerk at all is not a material logi opinions, one could Supreme Court County in mail- the the Travis Courthouse ee require the v. Rosser room, cally argue that Hanks papers not filed with the the letter was in Parker v. example, For apply. ments the A default was eventu- case. Gant, (Tex.Civ.App. 568 S.W.2d But ally against the Goldsmiths. rendered — Dallas n.r.e.), Court of the Dallas writ ref'd received no notice the Goldsmiths Appeals said: the time them until after passed. trial had filing Hanks, a motion for new where the clerk read As we by re- sought bill of The Goldsmiths relief misinformation, Supreme Court gives the (1) view. requirements Hagedom eliminated the prevented from was that the defendant Hanks, plaintiffs As in the accident, fraud, answering by or the was also suffered a default As party that wrongful of the other act Hanks, plaintiffs the the bill of review case unmixed with the failure to answer was filing for new prevented were from a motion any negligence the defendant’s fault or by a of an official mistake trial as a result or of freedom from fault part. Instead Supreme But the Court did court officer.18 answer, the failing court negligence requirements. See id. the Hanks recite required the failure a lesser standard that opinion in the there at 407. Nowhere or the result to answer was not intentional Goldsmiths, that as bill of intimation the indifference. lieu of conscious only plaintiffs, needed to show that proving Hagedom requirement of intentional or their failure to answer was not answering prevented from defendant was of conscious indifference. result par- by wrongful opposite act of the some However, expressly opinion did not re- ty, court substituted thе the Hanks requirements disapprove the relaxed by clerk quirement of misinformation fact, question Hanks v. Rosser. injury will result to showing that no plaintiffs whether the bill of review needed Thus, party. in the situation opposite complete negligence absence of show a clerk, re- by Hanks of misinformation merely failing petition to answer the upon the substantially the burden duced their failure to answer the obtaining bill of review. defendant intentional or the result conscious indiffer- Later, Transport, in Petro-Chemical Bather, response not in issue. ence was (Tex. Carroll, 240, 244 514 S.W.2d Inc. v. the Bakers’ contention that there was 1974), Supreme Court stated that proof the conclusion that the Gold- postcard clerk to send the failure negligence, the smiths acted without by entry notice of at found that the Goldsmiths were not fault. to misin equivalent 306d is Tex.R.Civ.P. Accordingly, as dis- we do not read Baker Consequently, clerk. formation requirements forth in Hanks. placing the set the Hanks that court concluded Rosser, applied supra, standard where II. BILL OF REVIEW entry judg notice of clerk failed to send REQUIREMENTS IN thereby preventing the defendant ment AT BAR THE CASE timely filing a motion for new trial from Upon reviewing the four perfecting and from above, may not at once be opinions Gant, 568 S.W.2d Parker v. require entirely clear what the bill of review just quote digesting Reading the last line of at bar. After ments are case above, readily might discussing opinion one the Parker court of decisions various allege prove pre- plainant supreme court declared: 18. The presenting his contentions in vented from wrong gives an officer of the court [W]here or error of filing action a mistake prevents the of a mo- former information discharge complainant functionary in a thereof tion court or showing judg- review excused from duties. official wrong- Goldsmith, (citations was rendered as the result of ment Baker v. opposite party. Consistent ful conduct of the omitted). this, acceptable the com- it is also with 662 928, applies conclude that the (Tex.Civ.App. Hanks standard 584 S.W.2d 931 — Houston all, 1979, n.r.e.); the case before us. in After the case at [14th Dist.] writ ref'd v. Buckler

bar, Tate, entry 562, the clerk failed to send notice of 572 564 (Tex.Civ.App.— S.W.2d judgment thereby writ). preventing 1978, defendants [1st Houston Dist.] no timely from fil- appeals In each the court cases cited ing perfect- motion for new trial and from above, however, proceeding bill of review ing appeal. But the last line of above judgment.19 arose out of a default None of quote mischaracterizes Petro-Chemical cases, above-cited court includ- in respect. decision one As we learn from Parker, ing dealt with bills of review wherein our discussion Petro-Chemical case underlying judgment followed a trial on opinion, I Supreme Part of this Court did the merits as was the case Petro-Chemi- espouse exactly requirements the same cal. As earlier in footnote 17 of mentioned succeeding upon a bill of review Petro- opinion, re- believe the same bill of Chemical as did in Hanks. While the requirements view apply should all situa- require Petro-Chemical court did not the bill losing pre- tions has where defendant been wrongful of review to show some act filing vented from a motion for new trial or (as the opposite party was the case in perfecting an We see no basis for Hanks), did not excuse the bill of crafting requirements different for a proving from the traditional judgment review in default cases аnd in cases Hagedom requirement that was free from parties where the appeared participated and any Thus, negligence. fault or the Dallas at trial. Appeals’ statement in Parker that Regardless opinion, of our belief how- Supreme Court determined the Hanks v. ever, Court has enunciated dif- applied in Rosser standard Petro-Chemical ferent rules the two situations. In the misleading. One cannot read Parker v. situation, judgment litigant default who definitively Gant determine whether the prevented filing motion from for new applies Hanks standard to the case at bar. perfecting trial or must meet the only Parker is not the case which the requirements liberalized v. Hanks Rosser. Appeals require Dallas Court of followed the parties partici- a situation where Pope ments set forth in Hanks. See pated at trial losing party and the has been Moore, 125, 127 (Tex.App . —Dal prevented filing for new n.r.e.). 1987, las writ ref'd Several other perfecting or appeal, requirements set of appeals courts have also followed Hanks. forth in Petro-Chemical control.20 City Threadgill, See Laredo v. 686 S.W.2d 734, 1985, (Tex.App. case, parties ap Antonio In the no current all — San writ); Co., Vaughan peared participated American Indem. at trial. Hale and 22, (Tex.Civ.App. Trucking allege that the court clerk — Beaumont 1979, n.r.e.); Mann, writ ref'd judgment Gonzalez v. failed to send notice of the Inc., East, 713, distinguished Rund v. Trans 824 S.W.2d lieved Hanks could be from Petro- 1992, (Tex.App. [1st 717 denied), writ Dist.] Chemical the fact that Hanks involved a — Houston applied the Hanks standard was where clerk’s affirmative misinformation while Petro- grew proceeding out of the perform Chemical dealt with a clerk's failure to prosecution. dismissal of a case for want of required act. He concluded that criteria, if it all Hanks Rosser is at case, In at one least the critical factual dis applicable, peculiar is limited to the facts of (de tinction between Hanks and Petro-Chemical say that case. That is to that unless he can merits) fault versus trial on the gave show the clerk tion, affirmative misinforma- Blasi, Edgin missed. See proceeding the movant in a bill of review writ) (Tex.App. (opinion Worth — Fort prepared prove should rendition erroneously states that was a de Petro-Chemical trial did not case). fault through negligence come about fault key This distinction was also missed in a law the movant or his counsel. concerning review article bills of review. See agree Id. at 242. do not author's Siskind, Chance, Jay S. Bill Review—The Last conclusion. 20 S.Tex.L.J. 240-42 [hereinafter article, Last In that be- Chance]. author

663 (prima (4)a ground of therefore, chal meritorious they lost chance to their only). proof for new trial lenge judgment clearly is by appeal. The case before us Carroll, Transport, Inc. v. Petro-Chemical According comparable to Petro-Chemical. at 244-46. 514 S.W.2d suc ly, for Hale and Goodnoh review, petition for bill ceed their REVIEW THE BILL OF III. HAVE satisfy require they required to were REQUIREMENTS BEEN See set forth Petro-Chemical. ments SATISFIED? 317, 319 Washington, v. 641 S.W.2d Rohdie Having requirements determined n.r.e.) 1982, writ refd (Tex.App. Paso — El re were and Goodnoh that Hale (“In parties partici both this situation where bill of upon them quired satisfy to succeed deprived loser was pated in trial but the they review, met now discuss whether we will in Pe appeal, procedure outlined of an with the requirements. Consistent those ... Transport, Inc. Carroll tro-Chemical v. bill of review procedure to followed a be followed.”); Freberg, Thomason should be require proceeding, we will first discuss 821, (Tex.Civ.App. Corpus 824 588 S.W.2d — appeal.23 of meritorious ment writ).21 1979, Specifically, no Hale Christi allege and were Goldsmith, Supreme Court In Baker v. prove following: procedure to be utilized set forth the trial (1) to file a motion for new trial a failure As earlier this of review. noted bills appeal, a failure to advance an or who had opinion, Baker involved defendant (2) fraud, or caused accident judgment and had there- suffered a default wrongful opposing party act of or present unable to a defense fore been mistake,22 by an official plaintiffs’ peti- allegations contained in the (3) procedure forth Baker defi- tion. The set negligence unmixed with fault or own, situa- nitely applies to default

them Corpus to the view that Freberg, the Christi Texas courts have subscribed 21. In Thomason v. Appeals declared: equitable Court will not be for an of review outset, petitioner is not no granted At the we note where the has meritorious defense, type proceeding. Most usual bill of such a because without defense proceedings follow rendition entered on retrial. See would be same case, however, judgment. of a default In this Harrison, 125, 162 Tex. 345 McEwen suit had been tried on its merits. 706, (where no defendant "has 710 are, therefore, placed We in the similar situa- suit, setting defense to the aside meritorious presented by tion in Petro-Chemical be a vain act and of the Co., Carroll, Transport 240 Inc. 514 S.W.2d court”). trespass time Bill of on the (Tex.Sup.1974). plaintiffs required to make are now Freberg, S.W.2d at 824. Thomason v. 588 showing so preliminary a meritorious defense mistake includes errоneous infor judicial An official re- that valuable as to assure the court functionary given by Beck, as mation an official Beck v. 771 will not be wasted. sources Goldsmith, Baker v. 582 S.W.2d at Goldsmith, Hanks. 141, (Tex.1989); Baker v. 913, West, 407; Gracey v. 422 S.W.2d 915-16. at 408. 582 S.W.2d 1968). (Tex. An mistake also occurs official note, course, that States the United perform required where a court official fails Goldsmith, showing at 407 that a held duties. Baker (it very acceptable necessary for a bill of review in the is defense is not of the court or a show “a mistake or error where a defendant receives limited situation notice, discharge functionary of official actual, thereof proceedings it formal duties”). Perhaps example of the most common Ctr., Heights Peralta v. Medical him. where, as type mistake is in Petro this Chemical, of official (1988). 896, If 99 L.Ed.2d 75 108 S.Ct. U.S. fails to send the re the court clerk defective, opposed merely to non- service quired generally Ruben See notice existent, plaintiff must still the bill Brochner, Comment, Jr., The Snares and Pitfalls R. allege William Trail meritorious defense. Texas, Equitable 21 Tex. Bill Review in of Tech L.Rev. Beck, ‍​​‌​‌​​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​‌​​​‌​​​​‌‌​‍Heights Medical A. Peralta v. and Julia Center, Chance, (1990); Last 768-69 Judgment Judgment a Void A Void Is Inc.: S.Tex.L.J. at Judgment Reviewand Procedur- Is a Void of—Bill Texas, Baylor L.Rev. al Due Process equity legal will well-known maxim that 23. A (1988). maxim, thing. not do a vain Pursuant to this 664

tions,24 appear apply but it does not all to entered. These defenses are respects presented to situations such as that in its outlined Motion for New Trial. Gen- are; Petro-Chemical and the bar erally, they case at where [sic] there has a trial on the merits. The [1]. Defendants are entitled to a new trial because the are mani- According opinion, to the Baker festly large. too initially must file a [2], preju- acted out of bias and petition containing allegations. certain dice. Among things, plain other the bill of review [3]. Defendants seek new trial in the “allege, tiff with particularity, must sworn justice interest of fairness. facts sufficient [a meritorious] to constitute Goldsmith, defense.” Baker [4]. No evidence or insufficient evidence must, Then the of bill to which base the award of loss matter, pretrial present “as a prima capacity in earning the future. proof support to the contention.” Id. [5], There was no evidence insuffi- and/or situations, default a meritorious cient evidence that the Plaintiff had defense means a “defense to the cause physical impairment suffered alleged action support judgment.” to past. Briscoe, Corp. Transworld Fin. Servs. [6]. There is no evidence insuffi- and/or (Tex.1987). example, For cient evidence that the Plaintiff will v. Hagedom, Alexander Mr. Hagedorn’s de physical impairment suffer fu- fense, meritorious, to was found ture. was that he did own the mule caused There no [7]. was evidence insuffi- and/or the accident. cient evidence that the Plaintiff would However, in a situation such as Petro- physical pain suffer and mental an- Chemical where there been trial on the guish in the future. subsequent no judg- merits but notice juries finding [8]. The “No” to [sic] ment, losing already defendant has had Question against great No. 1 was opportunity to allegations defend weight preponderance of the evi- plaintiffs petition. contained The de- dence. complain fendant does not he was unable to juries Question finding [9]. The [sic] present plaintiffs defense cause of supported by 1No. was insufficient Rather, action. the defendant seeks relief evidence no evidence. and/or review because lost his chance There no [10]. was evidence insuffi- and/or file a motion for new trial or his chance support juries cient evidence to situation, appeal. In such a a meritorious finding Johnny Goodnoh [sic] ground ap- means defense “a meritorious Trucking Company negligently en-

peal.” Transport, Petro-Chemical Inc. Reginald trusted the vehicle to Hale. Carroll, 514 S.W.2d at 245. There [11]. was evidence insuffi- and/or support juries cient evidence to presents Because the case at bar finding Johnny [sic] type the same of situation as in Petro-Chem Trucking Company grossly negli- ical, Hale and Goodnoh were re gent. quired allege, particularity, sworn facts sufficient to constitute a meritorious Our immediate task is to determine wheth- ground appeal. their er set the eleven defenses forth above review, made embody sworn facts sufficient to constitute following allegation: sworn ground appeal. point, At this interesting ques- [Hale

The Defendants and Goodnoh we are confronted with the exactly Trucking] have a meritorious defense tion what constitutes meritorious Beck, (a approved). See Beck S.W.2d at 142 default procedure case wherein the Baker trial rule laid down Overton. ap- adhere to the ground of Must Carroll, Transport, Inc. v. presents complete peal be one that defense Petro-Chemical of action cause 245-46. mule”) my judgment {e.g.,“It’s not or can originally quotation set forth The above simply ground a that calls for modification repeated in Petro-Chemical Overton and {e.g., its judgment opposed a as to reversal that a meritorious indicate would seem to point requests a re- оf error that a ground appeal is one that demands attorneys fees duction the amount But, underlying judgment. of the reversal party not awarded to the victorious but does ground a admittedly, question whether challenge propriety of the otherwise merely a modification appeal calls for certainly pertinent judgment)? This is bill of for judgment is “meritorious” of the Trucking’s Hale and Goodnoh question since in either not issue purposes was at complain of the size of first three “defenses” case. and, valid, damage only award if judgment.25 of the call for modification question light is on the Perhaps some shed 1878, Supreme In our Court was faced Payne styled in a out of this court ease where a defendant had been with a situation Corp., 420 Acceptance General Motors his The defendant unable to advance 1967, no (Tex.Civ.App. 503 S.W.2d — Amarillo sought by Supreme relief bill of review: The writ). case, we While not Court declared: Payne, one the case to be relevant. find pretended appellant It is not was for due sued the balance Payne E.A. was any way making hindered or obstructed The contract. a conditional sales under his to defense action default, Payne’s sale pleaded merely It is District Court. insisted Payne due. filed collateral and balance get of his to appeal he did not the benefit appear to on time trial. answer but failed court_ But, ask, why should a A was rendered default equity grant relief court of interfere and for new Payne him. then filed motion appeal? in his unless there was merit contending he had meritorious defense “a Surely no one would claim relief because security plaintiffs cause of action because by he accident or mistake has lost the was or of the conditional sales contract oppoi'tunity appealing judg- from the worth the balance should have been Court, appeared it ment of the District if purchase price at the same owed the time merely appeal delay; that his was taken repossessed.” at Id. was conceded, not, it and if as it must be applying Payne’s to a party incumbent This court determined defense, equity equity. court of for relief show declar- a meritorious did show Appellant, appealed equity he allege when which ing, motion must facts “[t]he relief, because, says, as he he lost the the cause a defense to law would constitute of his for want a state- benefit Id. plaintiff....” asserted of action show, facts, prima review, ment of should leading Texas law recognized in As least, appeal; and a meritorious theory upon relief was denied “[t]he filed, statement of facts been that had the complaint as the amount that the was presented so that he could have allege meritorious did designed, as to this court he McElhaney, H. Texas John Civil defense.” might, probably (1969). have been re- woidd Procedure, 178 23 Sw.L.J. versed. holding “ques- of the article called our author tionable,” party entitled Blum, opining 50 Tex. 425-26 Overton added). injured equally “is whether equitable relief Nearly (emphasis one hundred ‘liability’is attached Overton, ‘damages’ or the label Court re- years after Id. quote judgment.” “[w]e and declared that cited the above ing are Trucking's No. 1 that interpret on their Defense 25. We large. manifestly piggyback- too No. Defense No. 2 and Defense 3 666 opinion

A more recent issued this court at 998. The court of S.W.2d instructive, although speak is also continuеd to of a “claim” seems be at Beck, Wisdom, Payne. citing Baker v. and Beck v. odds Goldsmith Hartsfield (Tex.1989). Neither Baker (Tex.App. — Amarillo denied), speak nor Beck of a meritorious “claim.” Lynn writ Russell Hartsfield filed a petition for bill of review to set aside an Clearly, Tyler Appeals acted agreed attempt decree of divorce. In an expanding own first its accord in defense, plead a meritorious Hartsfield al traditional bill of review element to include leged mentally that he incompetent expansion meritorious “claim.” Such agreed judg time entered into the necessary in order to allow the bill ment. Hartsfield did seek to have the plaintiff in case to meet the meritorious aside, decree of divorce set Rath however. requirement defense for she had no defense er, sought Hartsfield property to have the agreed judgment of divorce itself. portion agreed judgment settlement of Rather, found, as the court of the bill overturned. We determined that Hartsfield of plaintiff presented prima review defense, allege had failed to a meritorious proof aof meritorious claim demonstrat- declaring: ing “that she would obtain a more favorable property division on retrial.” v. Martin allegation resisting A party mere that the Martin, 840 S.W.2d at incompetent during pendency of proceeding the divorce inadequate is DeCluitt, v. the other DeCluitt case a show meritorious defense to the contrac- holding Hartsfield, we relied our in agreement. tual divorce This is because speak does not of a claim. But meritorious plead proof Hartsfield must also or show opinion implies a that meritorious de- that he received an unfair settlemеnt and shown fense would be where a bill of review property

would obtain a more receiving can favorable show likelihood of allegations division on if retrial were “greater recovery” on retrial than was re- believed. ceived in the action. See DeCluitt DeCluitt, 613 at 781. added). (emphasis at 224 Id. analysis our As can be seen from statement, authority As for the above decisions, holding our Martin and DeCluitt Martin, (Tex. cited Martin 840 S.W.2d 586 (that of a bill review denied) 1992,

App. Tyler writ and DeCluitt Hartsfield — alleges a by pleading meritorious defense DeCluitt, (Tex.Civ.App.— 613 S.W.2d 777 property would obtain a more favorable divi- dism’d). Waco writ were Both divorce retrial) sion on is not built the most Martin, Tyler Ap eases. of Court simply solid of foundations. There is no peals party declared for a order to set authority for such a hold- judgment by aside a final of review he ing.26 say holding This is not to our elements, prove including must three “a mer wrong, however. alleged itorious defense to the cause of action Hartsfield support judgment, or meritorious Upon touching of review the several cases ” Martin, claim. Martin v. 840 S.W.2d at question ground appeal of whether of added). (emphasis The court relied on merely calls for a modification of Hagedom authority and Hanks as for its of is meritorious cases, declaration. Neither of howev those purposes, ground we conclude that such is er, speak Rather, “a is, of meritorious claim.” indeed meritorious. A bill review after plain all, both cases state that the bill equitable proceeding occurs allege prove equitable tiff must “a meritorious nothing pre- us that there about is alleged party defense to the cause of action cluding challenging the amount Rosser, support judgment.” judgment аgainst party Hanks of a it where such 34; right v. Hagedom, Alexander was denied the to make such a chal- n.r.e.). authority. App. Corpus appellate 26. There other See Christi writ refd — Kessler, (Tex. Kessler v. 524-25 the bill of review lenge by appeal. ground rious new trial damages awarded ground proceedings is that therefore hold that a meritorious Similarly, large. only meritori- claim, whether were too appeal means a meritorious ground in Hale and mentioned ous be a defense to the that claim meritorious Trucking’s two briefs Goodnoh support judg- cause action large. damages awarded were too that the merely ment or basis for modi- meritorious pre- Hale and Goodnoh respect. fication of the some any proof whatsoever sented bar, Truck- the case Hale insufficiency questions. legal factual their ing’s allegation that the awarded in- question whether the Accordingly, the large manifestly are too McDaniel sufficiency allegations constitute themselves allegation a meritorious constitutes grounds appeal is immaterial. meritorious ground very interesting Having We need not reach determined the exces- question siveness-of-the-damages allegation of whether the remainder of Hale to be Trucking’s embody only appeal upon and Goodnoh defenses may now facts to constitute meritorious which Hale and Goodnoh sufficient rely, grounds appeal.27 of Baker v. we move on to a discussion of whether Goldsmith prima requires plaintiff Trucking presented the bill of review to do Hale and Goodnoh simply allege proof support their Ac more than a meritorious de- facie to contention. ground cording of As to the Baker v. fense or meritorious Court’s must, decision, earlier, plaintiff prima “a is noted the bill of review facie defense Goldsmith matter, present a it pretrial prima “as facie made out when is determined that support a proof complainant’s to v. is as mat the contention.” Baker defense not barred Goldsmith, at of he be pres- 582 S.W.2d 408. In the ter law and that will entitled case, and if to the ent while Hale retrial no evidence alleged legal insufficiency points contrary and factual is offered.” Id. at 409. While this nothing perfect in petition, typical in their bill of review standard makes sense situation, is pro- record shows that Hale and Goodnoh default difficult any proof support apply in in has duced of those conten- situations where there been Indeed, only very In tions. a merito- trial on the merits.28 a case similar mention of remaining setting legal participated all After forth the defenses are and fac- had trial. standard, points. insufficiency tual Can such defenses be v. Goldsmith court wrote: Baker grounds appeal? considered meritorious of For one, appellant point of error contends example, question is no there that in the Alexan- overruling her that the trial court erred in situation, Hagedorn der default Mr. appellant present- for motion new trial because Hagedorn's allegation petition in of his bill proof prima ed defense facie a meritorious did he not own the mule that caused support alleged of action the cause the accident constituted meritorious defense. appears appellant’s It from divorce But, Hagedorn gone through what if Mr. had prima facie is that the brief that this defense trial on merits and determinеd that pursuant property, to the final de- division of If, he did indeed own the mule? chemical, as in Petro- unequal is inasmuch as she cree divorce prevented Hagedorn had been from community property only received 37% challenging that determination sup- her ex-husband received while 63%. appeal, Hagedorn new trial contention, port appellant of this states claiming ground in meritorious original pleadings proof, at the her and offered legally factually insufficient evidence pretrial original trial as well as at the divorce support jury's finding that he owned the review, hearing petition cou- on her for bill of mule? pled with the absence evidence in it, potential problem As see with such a warranting unequal original divorce trial present- alleging it defense is not in but rather division, prima proof property facie constitute ing prima proof facie the contention defense. a meritorious Thankfully, required by v. Goldsmith. Baker basically appellant contend- We find that question day and time. for another its ing trial court abused discretion that the community parties’ property. example, Earp Earp, its 688 S.W.2d 245 division of For writ), 1985, proper subject for (Tex.App. not a Worth no the Fort Abuse discretion is —Fort Appeals attempted apply of review. Court of Worth parties Earp Earp, 688 at 247-48. case where standard a divorce both bar,29 one our up sister court of meritorious defense is to be taken at a in El set following Paso forth the pretrial hearing. question standard a Id.32 It is a must only meet in order to law the court. Id. The relevant show a appeal: inquiry hearing at this is whether the bill of presented prima facie applicant [T]he for a reviеw must set Id.; proof of a meritorious defense. State out in particularity his with some Buentello, 320, (Tex.App.— 800 S.W.2d

the errors he claims were committed writ). Corpus Christi As noted against him in disposition the trial and Baker, suit; the original he must then introduce may transcript proof comprised Prima facie the statement of facts documents, suit, interrogatories, if answers to ad- needed consid- missions, errors; along and affidavits on file eration finally, such other evidence that must establish if had may in its receive discretion. The bill of preserved been judgment might prob- may respond review defendant ably with like would have been reversed. proof showing that the defense is barred Washington, Rohdie v. law, questions ‍​​‌​‌​​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​‌​​​‌​​​​‌‌​‍as matter of but factual n.r.e.). (Tex.App. Paso writ ref'd — El arising disputes out of factual are resolved opinion The Rohdie does not mention the complainant in favor pur- for the “prima term facie” but the standard set forth poses pretrial, legal of this determination. appears only above prima call for facie prima If the court determines that a Thus, showing aof meritorious defense.30 meritorious defense has made the Rohdie standard does contravene the out, proceeding terminates and the principle established in Baker v. Goldsmith trial court shall dismiss the case. complainant that “the ain bill of review is hand, the if prima On other a facie merito- required prove not to his meritorious defense shown, rious defense has been the court by a preponderance of the evidence.” Baker will conduct a trial. Goldsmith, v. 582 at S.W.2d 408.31 Goldsmith, v. Baker 582 at 409. According teachings to the of Baker v. Goldsmith, question case, of whether a bill of In this the record not does reveal plaintiff review prima made out a pretrial hearing has facie that was conducted. proceeding justified case involved a bill of review errors which a reversal in following trial a on the merits. prior opportu- suit had the movant had nity to file a new trial a and/or 30. The of court bill statement that the appeal. direct plaintiff appeal review "must establish that if his standard, Id. at 826. Under this bill of re- preserved judgment might had probably and required “point view to out errors reversed," would have been indicates that the justified prior which would have a reversal adhering requirement only court is to the that a keeping suit." with the v. Balter Goldsmith prima facie meritorious defense need be shown. only prima instruction that a facie meritorious Supreme As stated cal, Court in Petro-Chemi shown, defense need be standard should re- which, ground appeal a meritorious is one quire point the bill of review out presented had it been court as might probably errors which would have designed, “might, probably would have" justified prior a in the reversal suit. caused the be reversed. Petro- Carroll, Transport, Chemical Inc. v. 514 S.W.2d 32.Speaking procedure it outlined in Bak- at 245. er, Supreme Court has said: Freberg, 31. The case Thomason v. 588 S.W.2d order that to assure valuable time is (Tex.Civ.App. Corpus 821 Christi by conducting spurious no wasted a "full- — writ), merits, following involved a bill of review trial a we blown” examination of the directed case, following on the merits. In that stan petitioner present pri- be dard was enunciated: proof ma facie a defense a of meritorious [Sjince pretrial prima showing, matter. After a facie [appellant] lost the benefit of a motion trial court then conducts a trial on the trial appeal previous for new cause, in the and/or remaining elements. ... his burden at the bill of review Beck, hearing regarding a Beck 771 S.W.2d at 142. also Arndt meritorious defense was to See Arndt, facts, (Tex.App. introduce statement exhibits and 714 S.W.2d 88 — Houston 1986, writ). transcript prior point from the suit and out [14th Dist.] no

669 pre to “the opinion, the court referred Contrary the dictates of the by Baker Gold Court, hearing require Hale authorized the trial court did not trial added). In Arndt v. prima (emphasis Trucking “present Id. and Goodnoh smith.” Arndt, (Tex.App. a proof a defense as facie of meritorious 714 S.W.2d — Houston Beck, 1986, writ), ap the court of pretrial matter.” Beck v. no Dist.] See [14th added). Rather, “[bjefore (emphasis conducting at a full peals stated review, may at con jury trial was conducted which Hale a court trial on the bill Trucking attempted prove complainant all the at is to hearing Goodnoh which the duct review, necessary con proof them present prima elements of facie added). ground including (emphasis meritorious defense.” Id. tended clearly proper procedure. was not This recently bill of written on This court proper pro- Consistent with & procedure in K.B. Video Electron cedure, questioned as to (Tex.App.— Naylor, ics denied). case, had whether Hale In that we Amarillo writ appeal.33 ground question shown of a meritorious de noted that Rather, finding trial court made legal Id. “pretrial fense is a determination.” ground regard the meritorious say: went on to question. judgment, In its the trial court prima that a If the court determines stated: meritorious defense has not been made

The Court finds that out, proceeding and the terminates jury in awarded No. 7537 Cause If trial court shall dismiss case. further finds shown, were exсessive. The Court prima the court facie defense granted should then a trial. conducts justice. interests of (citations omitted). Clearly, we Id at 405-06 question Neither McDaniel nor Hale and Goodnoh presumed that the of meritorious inquiry. have made mention in their briefs the threshold defense is hearing pretrial fact that there was above, forth Based on the authorities set the meritorious issue. readily proper say can parties Apparently, the did not find the lack pretrial hearing on the procedure calls for a hearing particularly signifi- a such to be However, we meritorious defense element. view, however, In our the absence of a cant. certainty any degree say cannot pretrial hearing is of some concern. prima a facie meritorious the failure to show pretrial hearing to a bill at a is fatal being defense opinion could read the Baker as One Accordingly, plaintiff. while the of review suggestion a directive rather than a mere pretrial hearing question of a on the absence a bill of review be conducted. how should Baker, troubling, we find a meritorious defense is the declared a bill of review Trucking’s failure to matter, that Hale and Goodnoh pretrial pres- ... “must aas as prima defense support show facie meritorious prima proof [merito- the ent attempt them pretrial matter not defeat does Baker v. defense] rious contention.” Gold- added). smith, relief review. to obtain (emphasis 408 582 S.W.2d at repeated in v. language has been State This wheth- now move on to discussion of We Buentello, S.W.2d at 325. 800 Tracking their carried er Hale and Goodnoh hand, prima facie might showing a the one conclude burden оf On other trial. sug appeal at the bill of review opinion simply offers a that the Baker that in order for Hale gestion McDaniel contends as to how a bill review should Beck, Trucking to their bur- sustain proceed. In the v. and Goodnoh case Beck demonstrating procedure to the set den Süpreme Court referred have re- might probably would “suggested procedure.” in Baker as forth versed, 641 Washington, Beck, Rohdie at 142. Later see 771 S.W.2d Beck question Baker v. plain- of law for the court. question fense 33. The of whether bill of Goldsmith, at 409. de- 582 S.W.2d prima facie meritorious tiff has made out 670 at they time,

S.W.2d were Mr. intro- Bird: At this we’d offer like to duce the underly- statement of facts from the transcript, into evidence the record ing lawsuit in proceeding. the bill of review 7537/7633, in Case Number con- two authority Case exists in of McDan- together solidated cases with the State- iel’s contention. ment of Facts has not been com- pleted by reporter in the ease. Petro-Chemical, Court said: (Whereupon instrument was applicant The peti- should set out in his marked Plaintiffs Exhibit Number tion particularity with some identification.) errors he 9 for claims were committed him in the Honor, Mr. Altman: if I might Your make disposition trial and original suit. objection purposes of the record He should also transcript, introduce the transcript that the and the Statement of and the facts statement of where needed goes legal Facts to a matter errors, alleged the consideration of the Court to decide and not an issue that original suit. needs to decide this case. Carroll, Transport, Petro-Chemical Inc. v. get Mr. Bird: need to it into evidence. S.W.2d at 246. At least three courts of you’re Mr. offering Altman: If it for appeals have followed Petro-Chemical. See Court, benefit I don’t have Contractors, Inc., Wadkins Diversified objection Jury seeing everything. (Tex.App. — Houston simply I don’t think it’s a matter that writ) (“It appellant’s duty is the to intro Jury going [the] to have to decide.35 transcript duce the and statement of facts right. The Court: I original That’s understood he suit if the court needs introducing just for purposes them order to record.”); the record. Washington, Rohdie v. (bill “must ... Well, just Mr. Bird: purpose transcript introduce the and the statement of record. suit, facts from if needed in admitted, The yes. Court: It is errors”); consideration of Thoma again statement of facts was discussed (movant’s Freberg, son at 826 just prior to the time that Hale and Goodnoh hearing regard “burden the bill of review repro- rested their case. We have

ing a meritorious was to defense introduce exchange duced that below: facts, the statement of exhibits tran script prior point from the suit and out er get Mr. did Bird: We did —The justified rors reversal in pur- admit into evidence for the record prior suit oppor had the movant had an poses transcript and the statement tunity to file a motion for new trial and/or of facts? appeal”). direct The Court: Yes. At the time of the rest, Mr. Bird: Your We Honor. of underlying statement facts from the trial Mr. Altman: me see Let the statement of yet had not been Irrespective transcribed.34 up facts there. fact, of that Trucking Hale and Goodnoh No, Mr. completed Bird: Russell hasn’t it moved for admission of the statement of facts yet. evidence. into The record reveals the follow- Honor, ing exchange attorney probably between the for Mr. Altman: Your I Hale won’t (Mr. Bird) but, Trucking objection technically, and Goodnoh have an want and the I Altman). (Mr. attorney objection for McDaniel to make an to the introduction clearly legal 34. The bill of review trial was conducted on This statement shows that the question August plaintiffs of whether the bill of review 1989. The statement of facts was not prima ground could show of transcribed until June 1993. The statement appeal along was with the nec- considered other part appellate of facts is of the record. essary bill of review elements in the bill of review trial. of the meritorious legal I have determination of exhibit that is not here until was not basis, appeal McDaniel ground I issue. to at it. chance look On objection to admis- required make to object entering to of the exhibit yet-to-be-transcribed statement of the acceptance actually until have it. sion argument. preserve to his facts order you Did rest? Mr. Bird: Yes. contention, Hale their second As to Honor, Mr. Your the defendant Altman: begin prem Trucking and Goodnoh rests.36 only of the they deprived not were ise exchanges is that the result these “right of the appeal also chance to but yet-to-be transcribed statement facts was new trial considered.” have their motion for purposes into of the admitted evidence Trucking have chosen Hale say, record. record —that carefully. It is no accident their words Clearly, the trial court did not have deprivation “right they claim to use in deter- statement facts before it rather trial considered” their motion for new mining is- the meritorious motion for of a chance to file a than loss sue. case, In this Hale and Goodnoh new trial. Trucking Hale and Goodnoh contend for new Trucking timely file motion did argument that the statement of McDaniel’s opinion, earlier in trial. As mentioned facts in the bill had be introduced Trucking filed their mo for three rea- proceeding is incorrect they knew trial at a time when tion new (1) right McDaniel has waived his sons: signed.37 yet had not been complain about the absence of statement one signed The trial court (2) facts; The trial court was authorized new motion was week after the trial filed order a new trial if it have done so signed judgment dis was filed with the underlying trial court need case However, contrary day. clerk the same trict a new not have a statement facts order judge’s practice, no notation to the trial usual trial; of facts unnec- statement was signing was made essary properly because the trial court could judge’s As the record re docket book. judicial underlying trial. notice of the take veals, had judge was unaware he the trial will address each of three conten- We these motion for judgment and that the signed the tions in order. ripe new trial was for action.38 Trucking Hale correct and Goodnoh presented with a situation thus We are ly time the of facts note that statement in Hanks v. Rosser and Baker unlike that evidence, was admitted into McDaniel did bill of review where the Goldsmith yet object ground that on the it had filing a motion for new prevented from completed. Hale and Goodnoh of a court func- official mistake trial thus that McDaniel waived conclude Here, plaintiffs Hale tionary. complain right of the absence a state prevented were not and Goodnoh trial. ment of facts the bill trial; a motion for new filing disagree. Rather, timely filed. timely-filed new trial motion complaint is not that this case the McDaniel’s judge. by the trial And not considered of facts was admitted before was the statеment Rather, new trial judge’s failure to consider the point is was McDaniel’s transcribed. of court clerk’s of not the result not the benefit motion was that trial court did have and Goodnoh Truck- making apprise in its failure to Hale of facts a transcribed statement parties notifying ruling attorneys all exchange, for no letter As be seen from 36. can objection. hearing was on Altman’s "technical” on McDaniel's motion made Mr. them that a Trucking’s mo- Hale and Goodnoh 37. footnote 2. See January 1989. trial was set for tion for new Clearly, judge not have sent letter would signed June 1988. 38. on signed. judgment had if he knew the been 19, 1988, judge the trial sent On December ing that been signed.39 granted had new trial be should because dam- Consequently, accept we cannot ages manifestly large. Hale and were too See Tex. (“New Tracking’s Goodnoh premise they may basic granted R.Civ.P. 320 trials be deprived right were of have their damages manifestly when the are too small motion for new trial considered virtue of large.”). disagree. or too an official mistake clerk. court Con- As in our noted discussion of Petro-Chemi- sequently, Hale and Goodnoh’s second con- cal, of in plaintiff the bill review Petro- tention fails. put exactly not in Chemical was same if, arguendo, Even we were to ac position it have in had it would been received cept Tracking’s premise Hale and Goodnoh Here, judgment against notice of the it. we that they deprived right were to have operating are under the laid down in rules considered, their motion for new trial we Equity require Petro-Chemical. does not Trucking’s would find Hale and Goodnoh sec of put the bill review be in unavailing. ond contention be To succeed exactly the same situation he would have review, upon their bill Hale and Goodnoh but for the mistake a court official. Trucking prima were to show facie The judg- relevant case law allows for final proof ground of a meritorious ment to be set aside of review likely This a claim means that would be a where the bill of review makes a point ap successful of error court at the prima showing ground of a meritorious peals. a trial When court conducts a bill of appeal. Appellate standards review review, legal it is to make a determination as apply.40 Accordingly, agree do ground whether the meritorious Trucking’s Hale and Goodnoh contention that likely would succeed the court of the trial to use court authorized the bill appeals. Consequently, trial court must proceeding to order new trial if appellate use making standards of the court would have ordered a new trial that determination. upon consideration of Hale and Goodnoh right This is the ease even where the lost Rather, Trucking’s trial new motion. advancing is that of new trial. trial court was authorized to order a new The trial court is not to use standards it only upon trial satisfaction of the elements usually in determining uses whether a new required to be shown in Petro-Chemical— Rather, granted. trial motion should be ground ap- one of is a which trial appellate court is use standards of Thus, peal. premise if undergirding even the determining review in whether meritorious Trucking’s Hale and Goodnoh second conten- exists. sound, tion were is one contention we could subscribe. argue Trucking Hale and Goodnoh trial court use should able to the same Trucking’s usually acting Hale Goodnoh third

discretion it uses when contention motions new trial. introduction This restore unnecessary Hale statement facts was Tracking and Goodnoh to the same because position judicial the trial could they they would have been had court take notice of underlying judge been able advance their motion for trial. trial Since the Thus, judge trial. the bill of review trial was the same simply underlying contend the trial should and Goodnoh Hale Trucking argue judge to use its that the did not been able discretion the bill need a determining proceeding that a statement of facts whether determine briefs, determining their Hale whether are exces one of sive, state that apply "the court and courts of are to factual Thrash, [Truck- determined that Hale and Goodnoh sufficiency 779, Hughes test. ing] right urge lost their their motion for new (Tex.App. Dist.] [1st — Houston trial of the district failure to because clerk's send writ); Moore, 622, Pope S.W.2d see also v. 711 jury’s notice.” Our answers and (Tex.1986). 623-24 Granting Bill the trial Order of Review court's reveals no such determination was made. that

673 of facts be introduced statement their of was meritorious. scribed 763, Donalson, judge case Davis 91 S.W.2d to make such determination. of the trial dism’d) 1936, (Tex.Civ.App. 765 wilt —Dallas the trial Having that determined Trucking’s Hale Goodnoh view. supports judicial notice of to take court entitled Davis, that appeals the court of stated now consider whether the first trial we must courts in suits of this “trial are authorized judicial no actually did take the trial court judicial of review to take [bill suits] nature correctly points out that tice. McDaniel original rec- knowledge of the cause and the that the is indication in the record there no prior proceedings ord and in the same suit.” took notice. Hale and trial court ever such McNabb, 173 Id. at 765. See also Dixon v. argument made no 1943, 228, (Tex.Civ.App. 229 S.W.2d —Dallas response point. d). writ also ref point that in out Wadkins v. Con- Diversified may judicial A notice sua take court tractors, Inc., appeals of stated that the court 201(c). At some sponte. Tex.R.Civ.Evid. duty of review has bill however, the court point proceedings, ap- introduce statement of facts “if parties has so notify the done be must pellate court needs them in order to review 201(e) guarantees the cause Tex.R.Civ.Evid. record.” Wadkins v. Di- as to the parties opportunity to be heard Contractors, Inc., at 143 734 S.W.2d versified taking judicial Guy propriety notice. Olin added). (emphasis III, Notice Under Article Wellborn Judicial agree We with Hale and Goodnoh Truck Evidence, 19 II the Texas Rules St. ing judicial that the trial court could take (1987). 1, Mary’s may process 19 Due L.J. underlying require notice of the trial. The require parties given a hear also that ment that a statement of facts be introduced Id; Larkin, A. ing. Article II: Judi Murl appeal's primarily to be for the benefit of the Notice, 107, Hous.L.Rev. 120 cial 20 appellate court. We note three of (“The sug has United States four eases cited McDaniel as gested process is when that due ‍​​‌​‌​​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​‌​​​‌​​​​‌‌​‍violated state contention introduction party judicial is taken of a fact and the notice necessary ment of facts is declare that operates given not against whom the fact statement facts should be introduced if it.”); challenge Garner opportunity see Transport, Inc. needed. See Petro-Chemical Louisiana, 157, 173-74, 82 368 U.S. S.Ct. (statement Carroll, 514 246 S.W.2d 207, 256-257, (1961); 248, 7 219 L.Ed.2d should be introduced “where facts needed” Comm’n, Bell Ohio Tel. Co. Public Utils. errors); alleged consideration of thе Wad 302-03, 729-30, 724, 292, 57 81 301 U.S. S.Ct. Contractors, Inc., kins 734 v. Diversified (1937). 1093, 1100-01 L.Ed. 143; Washington, 641 S.W.2d at Rohdie v. court, are enti (statement As an at 319 of facts must be S.W.2d judicial proper fact tled to take notice “if introduced needed” in consideration errors). requested not even where a trial court was We conclude that where the judicial notice of the fact and the court take judge trying is the case it had taken case, made announcement judge underlying that tried the same Killion, 481, Harper v. 162 Tex. such notice. judge judicial is entitled take notice 521, (1961); 523 Continental Oil legal making case in determi (Tex. plain Simpson, Co. v. as to nation whether n.r.e.); Civ.App. writ ref'd prima tiff shown a facie meritorious def — Amarillo (“Judicial 201(f) notice necessary It that a tran- ense.41 not Tex.R.Civ.Evid. Cf. Adams, parties proceed- acknowledge disputed by and because the Levit v. case of reporter ings (Tex.App. had been recorded court [1st —Houston 1992), grounds, had no record from Dist.] reversed other (Tex. 1993), accuracy judicially noticed determine the S.W.2d 469 wherein it held knowledge,” "personal knowledge judicial not believe Levit demands the is not facts. We do not take judge may personally court could "a know a fact of conclusion that and that underlying the bill of may properly judicial judicial trial in notice.” notice which she take Levit, judicially were at issue here. noticed facts review trial But 674

may any proceed stage ground taken at of appeal, meritorious of their ing”). Additionally, of grant- it has been held that an review should not have been appellate may presume court that trial ed. supported judi court judgment by taking its if, arguendo, Even Hale and Go- known, commonly easily cial notice of certain Trucking odnoh had introduced transcribed indisputable ascertainable and facts. See trial, of statement facts at the bill of review Johnson, Trucking

Buckaloo Co. v. 409 they we would be unable to conclude had 911, S.W.2d 913 (Tex.Civ.App. Corpus— prima ground shown facie meritorious of Killion, 1966, writ); Harper Christi 345 41, appeal. As mentioned in footnote in de 309, (Tex.Civ.App. 312 — Texarkana termining damages excessive, whether are 1961, 481, aff'd, Tex. apply of are a factual courts suffi (1961) (appellate “presumed court that ciency test. Because McDaniel had the bur trial court in judgment, of his took proving den damages, of Hale and Goodnoh judicial known, the commonly easily notice of Trucking’s sufficiency argument factual takes undisputable ascertainable and fact that point.” of an form “insufficient evidence Jacksonville, Texas, is located in Cherokee Gas, Explo Raw Hide Oil & Inc. Maxus Texas.”). County, Co., (Tex.App ration . — Here, however, denied). presume reviewing cannot the Amarillo writ an judicial trial court point, appellate took notice of the events of insufficient evidence court underlying pre- trial. of a This kind is to examine the entire record to determine sumption entirely pre- probative sup different if is some from there evidence to sumption and, is, judicial port finding, that a trial court took no- if there the court city tice that a certain in a certain located must then determine whether the evidence county. It was incumbent Hale supporting finding and is so weak or the Trucking Goodnoh to ensure contrary that the record so the overwhelming answer judicial weight showed the trial court took notice of of clearly wrong the evidence to be they if underlying expected manifestly unjust. trial to claim Id. at 276. This that trial take appellate court did such standard is test the trial court only presume notice. employ We can that the trial in determining was bound whether judicial insufficiency did not take point notice the factual was one that Thus, underlying events of might probably trial. while would have been sus judicial the trial court could taken no- tained on merits, tice of the events the trial on the brief, their first Hale and the fact is that did not do so. Hale and Trucking following Goodnoh advance the ar- Trucking’s argument Goodnoh state- gument show damage effort to ment of facts not have to be did introduced award excessive: proceeding the bill of because trial A review the record shows that the trial judicial court could under- take notice of the regarding the court’s determinations ex- lying unavailing. trial is and the need for a cessiveness accept argument that McDaniel’s were correct. evidence es- statement of facts must be introduced tablished McDaniel incurred medical $7,068.00; proceeding. such a the amount Because bills introduced, approximately statement of was not we McDaniel was off work for facts find that following failed six months accident from 1984; carry prima January showing them June of 1983 until burden January the bill until the time of facts, consistently Without a first McDaniel review trial. statement labor, jobs requiring Hale and hard as he were unable worked showing prior sustain to the accident. The evidence then* burden did that, might probably returning after further established January have been and Go- work McDaniel did not reversed. Because Hale years, Trucking were not show a medical attention two odnoh able to seek dispositive a meritorious defense is just prior was to show until to the date his doctor not address whether deposition. appeal, Faced we need give scheduled of this Trucking other evidence, met the jury actual and Goodnoh with this the awarded Hale $82,068.00. damages requirements. in amount of the of review bill argument one do not believe this to be We IV. SUMMARY accepted might probably and would be very appeal. place, In the fact on first the holding Truck- that Hale and Goodnoh Our $7,000 over in medi- that McDaniel incurred discharge then’ burden of show- ing failed to approxi- cal bills and was off from work for de- of a meritorious ing prima proof mately six months after the consti- accident of the requires reverse order fense us to support jury’s tutes some evidence as well granting the bill tidal court $82,068 finding damages. in actual Sec- in the trial. judgment the court’s second $25,000 ondly, jury awarded McDaniel judgment denying for render We physical pain The anguish.42 for and mental Gant, Parker v. of review. See $25,000

jury McDaniel for loss also awarded result, at 166. As earning jury capacity.43 Additionally, the awarding McDan- judgment of June $25,000 for im- physical awarded McDaniel $250,000in $82,068 damages in actual and iel $7,068 Finally, jury pairment.44 awarded in full and exemplary damages remains force expenses past. in the The evi- for medical effect. jury’s supporting damage award dence clearly be said be so weak cannot as to be REYNOLDS, Concurring by Opinion C.J. wrong manifestly unjust. and Hale and Go- REYNOLDS, Justice, concurring. Chief Trucking’s evi- odnoh contention that factually was dence insufficient judgment join in the of reversal I court’s jury’s simply actual award of I not em- reinstatement. Because do and might probably contention and analyses expressions some of the and brace accepted would have been opinion, com- in the lead I substitute these ments. trial, note We that at Trucking Hale and much of Goodnoh made appeal, though aris- The resolution of the attorney the fact that McDaniel’s had offered departed from ing proceedings $45,000. and to settle case for Hale principles, governed accepted bill of review Trucking argued that the total since principles law. well established $332,068 far in excess award background light contained extensive $45,000 amount, verdict must opinion, in the lead it suffices to state necessarily disagree. excessive. We origi- fully participated in the appellees, who $45,000 fact that was once to settle offered prejudgment filed a motion for nal change the case does our conclusion operation of law trial which was overruled factually sup- there is sufficient evidence signed judgment was without notice after the jury’s damage port the actual award. They predicated their to them. carry clerk failure of the court to send did not signing final showing required notice of the de-

their burden of 306a(3). Then, Accordingly, the trial erred See Tex.R.Civ.P. fense.45 loss of Trucking’s peti- they to show the granting Hale and Goodnoh were and, ‘prima least opportunity conclu- for bill of review. Because our tion i.e., appeal, facie, a meritorious Hale failed sion that and Goodnoh $12,500 $12,500 past impairment pain physical physical and 44. 42. was awarded for that, $12,500 $12,500 anguish impairment past physical mental anguish physical pain and mental awarded probability, McDaniel would suffer reasonable the future. the future. $12,500 earning capacity for loss of point spеcifically of error three. sustain $12,500 earning capacity in past for loss the future. might, probably any dence that he made effort to determine would, reversed, have been and that their whether signed had been on or failure to was not due to fault or requested after the signing. date of its Tes- negligence attorney’s part. on their or their timony question on the whether it was cus- Carroll, Transport, Petro-Chemical Inc. v. tomary attorney or for an reasonable to 240, (Tex.1974). 514 S.W.2d 245-46 check with the clerk to determine the status permitting appellees’ a trial on bill of pending conflicting. Appel- motions was review, judge, presided the trial who at the attorney attorneys, lees’ and two other one of trial, pretrial made a finding that the partner whom was his at the time of the by jury awarded the were exces- lawsuit and the other one of whom was em- Appellant object sive. did not to the absence counsel, ployed appel- as local concluded that pretrial prima proof of a meritorious attorney negligent. lees’ was not There was appeal, and that issue is not before testimony appellant’s attorney had no 52(a). Tex.RApp.P. us. duty notify appellees’ sign- to of the counsel

In the jury ing the A former appellees failed to find that the failure of to justice, who had served as a district urge their motion for new trial was not due judge, being given hypothetical situation any negligence part fault or on the of them embracing proposed the submission of the attorney. or their disregard The trial court judgment trial, expressed and motion for new answer, implicitly finding ed the the opinion signed that he would have jury’s answer had no in the evidence judgment objectiоn, if he received no and he inquiry or that the was immaterial. C. & R. expected opposing attorney have Transport, 191, Campbell, Inc. v. expect judgment signed. that the would be (Tex.1966). 194 There is no contention that justice The was not otherwise asked to ex- inquiry and, by was immaterial force of press opinion any about the conduct of judgment, its bill of review the trial court attorney under the exact facts revealed found the absence of fault negligence as a testimony. correct, matter finding of law. The court’s is submit, appellees they because established Then, record, under this a fact issue as to negligence the absence of as a matter of law. negligence presented, fault or Petro- Carroll, Transport, Chemical The evidence Inc. v. proposed judg- shows the judge ment was submitted to the with S.W.2d and the court was autho not request signed by it be a certain disregard jury’s Lynch rized to answer. objection, date unless there and a Ricketts, 158 Tex. copy of the appellees’ submission was sent to (1958). Restored, jury’s answer consti attorney. Appellees filed their motion for appellant tuted a verdict for unless the cross- day. response new trial later the same point appellees, by they challenge which requested signing judgment, appel- sufficiency sup the factual of the evidence to attorney judge post- lees’ asked the trial answer, port is sustained. Id. 314 pone signing judgment until he could S.W.2d at 276-77. trial; hear the judge, motion for new and the In according proper its role to proposed judgment

who had not received the judge credibility of the witnesses and the requested signing, nor knew of the said the judgment weight given testimony, motions for new trial and to be to their I can- would be Appellees’ attorney heard at the same time. say jury’s appel- that the refusal find objection judgment, made no to the urge lees’ failure to its motion for new trial judge signed days it two after date was negligence was not due to fault or requested signed. to be The district clerk attorney great them or their is notify appellees did not either or their attor- weight preponderance of the evidence. ney signed. that the had been Consequently, agree appellant I would with appellees satisfy have failed to this re-

Although objecting proposed judgment, appellees’ attorney quirement did not evi- for a bill of review. satisfy this

Moreover, judg appellees have failed to agree that the final it is settled of review. appel- requirement for ment not be disturbed unless should judgment might, lees show could BOYD, add I that Justice am authorized would, they probably reversed had joins in the Court’s who appeal. Petro opportunity not lost the reversed and the bill Carroll, Transport, Inc. v. Chemical reinstated, agrees original judgment 245-46. burden remained S.W.2d at these comments. with noticed, appellees although, as earlier objection finding pretrial there was no damages by judge, who excessive trial, particularly

presided the first and objection not judge

there that the did facts,

then have for review the statement of part

which has been furnished as attempt validate record. judge’s finding, appellees’ state verbatim DOLENZ, J. Relator. Ex Parte Bernard ment, record with their references No. 05-94-01853-CV. eliminated, is: that McDaniel evidence established ‍​​‌​‌​​‌‌​‌‌​‌​‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​‌​​​‌​​​​‌‌​‍Texas, Appeals Court of medical the amount incurred bills Dallas. $7,068.00; that for McDaniel was off work Jan. approximately following six months January accident from June of 1983 until 1984; January until and from trial,

the time of the first McDaniel consis- labor, jobs

tently requiring worked hard prior The evi- did the accident. that, re-

dence further established after January

turning work not

McDaniel did seek medical atten- just prior years,

tion until for two give

date doctor his was scheduled to evidence,

deposition. Faced

jury awarded actual $82,068.00.

amount of

However, in medi- addition to the evidence of expenses $7,068,

cal was faced evidence, it deter-

with other from which $12,500 appellant

mined entitled to future, $12,500 physical pain past,

for for $12,500 anguish; past, for

and mental

$12,500 future, earning capacity; loss of $12,500 future, $12,500 past, $82,068. impairment, a total of Oth-

physical statement, appellees quoted than

er their explain the evi-

have undertaken to how jury’s findings. fails to

dence

Then, from first given record agree appellees

I have shown probably

original judgment might, and been, they had not lost reversed if Accordingly, I it.

opportunity to

Case Details

Case Name: McDaniel v. Hale

Court Name: Court of Appeals of Texas

Date Published: Feb 6, 1995

Citation: 893 S.W.2d 652

Docket Number: 07-93-0146-CV

Court Abbreviation: Tex. App.