Opinion
NO. 01-16-00431-CV
07-13-2017
GLENN BLAIR, Appellant v. ANGELA MCCLINTON, Appellee
On Appeal from the 505th District Court Fort Bend County, Texas
Trial Court Case No. 15-DCV-228828
MEMORANDUM OPINION
This is an appeal from an order denying a petition for a bill of review, seeking to set aside a child support order. On appeal, Glenn Blair contends that the trial court erred in denying his petition because the trial court's child support order is void. We affirm.
Background
Glenn Blair and Angela McClinton had a child and resided together in Houston from 2000 until 2011, when they unsuccessfully sought a common-law divorce. In November 2011, the Attorney General's office filed a "Petition for Confirmation of Non-Agreed Child Support Review Order." The petition contained a proposed order for conservatorship that had been signed by McClinton but not by Blair.
In June 2011, the trial court convened a conference in the case. A representative from the Attorney General's office attended the conference; also, Blair and McClinton were each present and represented by counsel. Following the conference, Blair, McClinton, the Attorney General's representative, and the presiding judge signed an order confirming child support. The order appointed Blair and McClinton as joint managing conservators of their child, awarded McClinton the exclusive right to determine the primary residence of the child, and required Blair to pay $340 per month in child support and $55 per month in medical support. The trial court's order incorporated the proposed order that the Attorney General's office had filed with the court, with the parties' interlineated amendments, as an exhibit to the child support order. Blair, McClinton, and their attorneys signed the order. They also signed the accompanying exhibit, as it was amended at the conference. Blair did not appeal the order.
In December 2015, Blair petitioned for a bill of review, seeking to set aside the 2011 order. Blair asserted that his attorney and McClinton had committed extrinsic fraud, and that the 2011 child-support order was void because the trial court had lacked jurisdiction over the case. Proceeding pro se, Blair called himself as a witness. Blair testified that the 2011 order was void because the Attorney General's child-support claim was prematurely brought. He testified that the Attorney General's office "would have had to wait until the Judge signed the actual order" in connection with the parties' attempt to secure a common-law divorce before it instituted a child-support proceeding.
Blair adduced no other evidence in support of the petition for a bill of review. The trial court denied the petition.
Discussion
A. Standard of Review
A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010); Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). A bill-of-review plaintiff must plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiff was unable to present due to the fraud, accident or wrongful act of the opposite party or official mistake, (3) unmixed with any negligence of his own. Caldwell, 154 S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979). The fact that an injustice may have occurred is not sufficient to justify relief by bill of review. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam). Fraudulent or improper conduct of a petitioner's own attorney does not satisfy the second requirement for a bill of review. See Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987) ("We hold that bill of review petitioner who alleges that he suffered adverse judgment because of fraudulent or wrongful acts of his attorney is not excused from necessity of pleading and proving extrinsic fraud on part of his opponent.").
We review a trial court's ruling on a bill of review for an abuse of discretion, indulging every presumption in favor of that court's ruling. Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A self-represented litigant, as Blair is in this appeal, is held to the same standard as a licensed attorney. Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ). There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Litigants who represent themselves thus must comply with the applicable procedural rules. Id. at 185.
B. Analysis
Blair contends that his attorney engaged in fraud by advising Blair that the trial court had jurisdiction over the case, and further, that he placed Blair under duress by pressuring him to sign the order. Blair adduced no evidence to support these contentions; the record does not demonstrate that Blair's attorney engaged in fraud or coercion. Evidence of fraud or misconduct by a party's own attorney, moreover, does not demonstrate extrinsic fraud, accident, or misconduct sufficient to establish a right to an equitable bill of review. Transworld Fin. Servs. Corp., 722 S.W.2d at 408. We thus hold that the trial court did not err in rejecting Blair's petition on this basis.
Blair next contends that McClinton fraudulently prevented Blair from raising jurisdictional challenges and defenses to the child-support order. To support this contention Blair points to McClinton's proposed "Child Support Review Order," presented in the Attorney General's petition and later amended and incorporated as an exhibit to the trial court's order. He contends that the proposed order falsely represents that Blair had waived his right to have an original child-support order on file and demonstrates extrinsic fraud.
The record does not support Blair's contention. Both Blair and his counsel were present at the trial court's hearing to determine Blair's child-support obligations; both Blair and his counsel signed the order and the exhibit that it incorporated. Blair had the opportunity to raise any challenge to the proposed order at that time and did not.
The order recites that the parties waived making a record of the June 2011 hearing. The order also recites that "[t]he Court finds that all prerequisites of law have been satisfied and that the Court has personal and subject matter jurisdiction." Because the parties waived making a record of the proceedings, we presume that the evidence presented in connection with the hearing supported the trial court's recitals. See Shafer v. Connor, 813 S.W.2d 154, 155 (Tex. 1991) (per curiam). Blair failed to adduce any evidence that the June 2011 order was either void or a product of extrinsic fraud. Thus, his appellate complaint is without merit.
Conclusion
We hold that the trial court properly denied the petition for a bill of review. We therefore affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Justices Higley, Bland, and Brown.