Opinion
No. 05-16-01483-CV
03-10-2017
IN RE BRENT AND JANET REEDLE, Relators
Original Proceeding from the 59th Judicial District Court Grayson County, Texas
Trial Court Cause No. CV-15-1529
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Evans
This original proceeding arises from a Suit Affecting the Parent-Child Relationship (SAPCR) action regarding a minor child, J.W.G. Relator Brent Reedle is the child's biological grandfather, and relator Janet Reedle is Brent's wife and the child's step-grandmother. Relators sought termination of the parental rights of the child's biological parents and to adopt the child. On April 28, 2015, the trial court signed an "Order of Termination and Adoption" that terminated the parental rights of the child's biological parents and granted relators' application for adoption of the child.
On October 6, 2015, Macy Reedle, Brent's daughter and the child's biological mother, filed a bill of review asking the trial court to set aside and cancel the order of termination and adoption. Macy claimed that she was fraudulently induced into executing the affidavit of relinquishment of parental rights and that she did not know that she was relinquishing her parental rights or agreeing to relators' adoption of the child. After a bench trial, the trial court granted the bill of review and set aside the April 28, 2015 Order of Termination and Adoption. Relators seek a writ of mandamus directing the trial court to withdraw its October 27, 2016 order and to reinstate the April 28, 2015 order of termination and adoption. We requested responses from Macy and the respondent. We also granted a stay prohibiting the trial court from taking any further action in the case pending resolution of this original proceeding. Having reviewed the petition, Macy's response, relators' reply, and the mandamus record, we deny the petition for writ of mandamus because some evidence supports the trial court's findings of fact and conclusions of law.
Availability of Mandamus Relief
The courts of appeals are split on whether or not mandamus will lie to review the interlocutory granting of a bill of review. In re Estrada, 492 S.W.3d 42, 46-47 (Tex. App.—Corpus Christi 2016, orig. proceeding) (holding that recent precedent indicates "that mandamus may be available to review an order granting a bill of review"). This Court remains in the majority of courts permitting mandamus review of interlocutory orders granting a bill of review. Compare Schnitzius v. Koons, 813 S.W.2d 213, 218 (Tex. App.—Dallas 1991, orig. proceeding), In re Estrada, 492 S.W.3d at 49; In re J.M., IV, 373 S.W.3d 725, 728 (Tex. App.—San Antonio 2012, orig. proceeding), and In re Spiller, 303 S.W.3d 426, 431 (Tex. App.—Waco 2010, orig. proceeding), with In re Moreno, 4 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding), Patrick O'Connor & Assocs., L.P. v. Wang Inv. Networks, Inc., No. 01-12-00615-CV, 2013 WL 1451358, at *2 (Tex. App.—Houston [1st Dist.] Apr. 9, 2013, orig. proceeding) (mem. op.), and Ott v. Files, No. No. 03-00-00612-CV, 2000 WL 1675737, at *1 (Tex. App.—Austin Nov. 9, 2000, no pet.) (per curiam) (not designated for publication). This proceeding is, therefore, properly before the Court.
Standard of Review
To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial court abuses its discretion only if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.—Dallas 2008, pet. denied). "In determining whether the trial court abused its discretion with respect to resolution of factual matters, we may not substitute our judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable." In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam). "A trial court also abuses its discretion if it fails to analyze or apply the law correctly." Id. In other words, under an abuse of discretion standard, this Court should defer to the trial court's factual determinations if they are supported by the evidence. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
Here, the trial court issued detailed findings of fact and conclusions of law. Findings of fact have the same force and effect as jury findings. Van Marcontell v. Jacoby, 260 S.W.3d 686, 690 (Tex. App.—Dallas 2008, no pet.). Findings of fact may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re L.A.F., 270 S.W.3d 735, 739 (Tex. App.—Dallas 2008, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). If there is some evidence of a substantial and probative character, the findings control the reviewing court even if the appellate court might have reached a different conclusion on the evidence. Cent. Power & Light Co. v. Bullock, 696 S.W.2d 30, 33 (Tex. App.—Austin 1984, no writ). We employ these standards of review here.
Applicable Law
"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 direct appeal." Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015). Traditionally, a bill of review requires proof of three elements:
(1) a meritorious defense to the underlying cause of action,Id. The Texas Family Code allows a "direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child" only where there was "fraud, duress, or coercion in the execution of the affidavit." TEX. FAM. CODE ANN. §161.211 (West 2014). An involuntarily executed affidavit of relinquishment is a complete defense to a termination order. Moore v. Brown, 408 S.W.3d 423, 437 (Tex. App.—Austin 2013, pet. denied).
(2) which the plaintiff was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake,
(3) unmixed with any fault or negligence by the movant.
Macy's bill of review was timely-filed within six months of the April 28, 2015 order. See TEX. FAM. CODE ANN. § 161.211 (West 2014). Once relators demonstrated by clear and convincing evidence that Macy executed the affidavit of relinquishment of parental rights pursuant to section 161.103, the burden shifted to Macy to establish by a preponderance of the evidence that the affidavit was executed as a result of fraud, duress, or coercion. See In re K.D., 471 S.W.3d 147, 156 (Tex. App.—Texarkana 2015, no pet.) (citing In re R.B., 225 S.W.3d 798, 804 (Tex. App.—Fort Worth 2007, pet. denied)). There is no statutory definition of "fraud" under section 161.211, so courts give the word its ordinary meaning, which is a false, material representation that is made knowingly or recklessly, with intent to induce reliance, and that induces reliance. In Interest of J.H., 486 S.W.3d 190, 195 (Tex. App.—Dallas 2016, no pet.); In re K.D., 471 S.W.3d at 157 (construing family code § 161.211(c)). "Fraud may be committed through active misrepresentation or passive silence and is an act, omission, or concealment in breach of a legal duty, trust, or confidence justly imposed, when the breach causes injury to another or the taking of an undue and unconscientious advantage." In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied); see also Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 436 (Tex. 1997) ("when circumstances impose upon a party a duty to speak and the party remains silent, the silence itself can be a false representation.") (citing Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986)). "A misrepresentation is a falsehood or untruth with the intent to deceive." In re D.E.H., 301 S.W.3d at 829.
Discussion
Relator complains that the trial court abused its discretion because the evidence did not establish that there was "fraud, duress, or coercion in the execution of the affidavit" as required by section 161.211, Macy did not establish that she was prevented from raising a meritorious defense due to the fraud, accident, or wrongful act of the opposing party or official mistake, and Macy lacked standing to attack the adoption order. We disagree.
Macy's testimony and supporting evidence was some evidence of a substantial and probative character that, if believed by the trial court which was the trier of fact determining the credibility of the witnesses, supported the trial court's decision. See Bullock, 696 S.W.2d at 33. The trial court could reasonably have found that Macy was fraudulently induced into signing the relinquishment affidavit based on Macy's testimony combined with evidence that relators filed their second amended petition within seven days of trial without providing Macy with a copy of the petition, that petition was the first in which relators sought to terminate Macy's parental rights, and relators' counsel listed an incorrect address for Macy in the relinquishment affidavit, which caused her not to receive notice of the judgment. Because the trial court's factual determinations in favor of Macy are supported by the evidence they are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, so we must defer to those determinations. See In re L.A.F., 270 S.W.3d at 740. We conclude that the trial court did not abuse its discretion by granting the bill of review and vacating the order of termination and adoption.
As for Macy's standing to attack the adoption order, relators are correct that Macy lacked standing to challenge the adoption order unless and until she first succeeded in having the court set aside the order terminating her parental rights. See Moore, 408 S.W.3d at 431 (citing Durham v. Barrow, 600 S.W.2d 756, 761 (Tex. 1980) (explaining that birth parent whose parental rights were terminated would have standing to challenge child's adoption only to extent the termination order was first set aside)). She attained standing, however, when the trial court vacated the order terminating her parental rights. See id. A trial court has discretion over how to run its docket. Here, the court chose to hear arguments and evidence on the bill of review as to the termination and the adoption at one time rather than scheduling two trials. The court found the termination order invalid because the relinquishment affidavit was involuntary. At that point Macy obtained standing to complain of the adoption. As the Moore court acknowledged, in such cases the reviewing court may simply address the vacatur of the termination order first and, if affirmed, address the vacatur of the adoption order. Id. at 431. We conclude that Macy gained standing to attack the adoption order as a result of the trial court overturning the termination, and the trial court had jurisdiction to grant the bill of review and vacate the adoption order.
For the foregoing reasons, we deny relators' petition for writ of mandamus and lift the Court's December 20, 2016 stay of the underlying proceedings. 161483F.P05
/David W. Evans/
DAVID EVANS
JUSTICE