Opinion
No. 04-03-00877-CV
Delivered and Filed: May 25, 2005.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-05161, Honorable Barbara Hanson Nellermoe, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Guadalupe Barron appeals the judgment denying her bill of review, which seeks to set aside the December 12, 2001 default judgment rendered against her in a suit filed by John Albert Clark Sr. Clark alleged Barron fraudulently induced him to give her approximately $150,000.00 (the majority of which Barron used to purchase a home) and recovered a judgment ordering Barron to pay Clark more than $205,577.43 and conveying title to Barron's home to Clark if Barron failed to execute and deliver to Clark a general warranty deed within seven days. Relying on representations Barron alleges Clark made to her, she never delivered the warranty deed and never sought to attack the default judgment by direct appeal. Instead, after Clark died in June 2002, Barron filed a bill of review, naming as the defendant the independent executor of Clark's estate, Irene Hernandez. Without stating its reason, the trial court granted Hernandez's motion for summary judgment, which alleged, among other things, that Barron was not entitled to equitable relief because she failed to exhaust her legal remedies. We agree. As Barron admits in her petition, she first learned that a default judgment had been rendered against her on January 16, 2002. If neither Barron nor her attorney received the notice required by Rule 306a(3) within twenty days after the date the judgment was signed, Barron was entitled to file a motion under Rule 306a asking the trial court to establish the date of judgment as the date Barron first acquired actual knowledge of it See Tex. R. Civ. P. 306a(3), 306a(4)-(5). If Barron or her attorney did receive the notice required by Rule 306a(3), she had time to file a motion for new trial within the thirty days provided by Rule 329b(a). Barron did neither, as she admits in her petition. Accordingly, Barron is precluded from obtaining relief by way of a bill of review as a matter of law. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) ("If legal remedies were available but ignored, relief by equitable bill of review is unavailable."). We therefore affirm the trial court's judgment.