Opinion
No. 04-04-00744-CV
Delivered and Filed: August 10, 2005.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-11742, Honorable Karen Pozza, Judge Presiding.
The underlying lawsuit was filed in Cause Number 2003-CI-16478. The trial court granted the motion for summary judgment, which is at issue in this appeal, dismissing appellants' claims against appellees and severed those claims into Cause Number 2004-CI-11742.
Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
This is an appeal from the trial court's rendering of a summary judgment in favor of appellees on a bill of review filed by appellants. We affirm.
BACKGROUND
Appellees (hereinafter "the Taxing Authorities") filed a tax suit to collect delinquent taxes on certain property owned by the unknown heirs of Joe Olivares, deceased, and Luz Olivares, deceased. Pursuant to the judgment entered in favor of the Taxing Authorities, the Bexar County Sheriff's department sold the property to Russell and Donna Gallardo, and on September 9, 2003, the Gallardos received a Sheriff's Deed to the property. On September 29, 2003, appellants filed a plea of intervention in the tax suit, which was denied by the court. Appellants then filed a bill of review. The Taxing Authorities and the Gallardos filed answers to the bill of review. The Gallardos also filed a counter-claim requesting a declaratory judgment.
The Taxing Authorities and the Gallardos each filed motions for summary judgment, asserting, among other grounds, that appellants were not entitled to relief by bill of review because they had not diligently pursued all other legal remedies. The Gallardos also requested a severance of their claims against monies deposited in the court's registry. The trial court rendered summary judgment in favor of the Taxing Authorities and the Gallardos, without stating its grounds. The trial court severed "the portions of the Plaintiffs' Bill of Review alleged against the Defendant Taxing Authorities . . . so that this Judgment disposes of all claims against said defendants, and that it becomes final and immediately appealable."
In seven issues on appeal, appellants assert the trial court erred in rendering summary judgment in favor of the Taxing Authorities, the trial court erred in rendering summary judgment in favor of the Gallardos, and the trial court erred in denying their motion for a continuance.
BILL OF REVIEW
After the trial court loses plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law. Tex. R. Civ. P. 329b(f). A bill of review is an independent, equitable action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to a motion for a new trial or appeal. Transworld Fin. Serv. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). "If legal remedies were available but ignored, relief by equitable bill of review is unavailable." Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999).
Appellants contend the Taxing Authorities improperly served citation of the tax suit by publication for the unknown heirs because, according to appellants, they were not "unknown." Appellants argue that because they were denied due process they were not required to satisfy the requirements for relief by bill of review. If appellants were not served, constitutional due process relieves them of showing a meritorious defense; they are not required to show that fraud, accident or wrongful act prevented them from presenting such a defense; and their own lack of fault or negligence is established. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). However, even under these circumstances, a person must exercise due diligence to avail himself of all adequate legal remedies against a former judgment before filing a bill of review. See id. at 537-38.
When, as here, a default judgment has been rendered on service of process by publication, a trial court may grant a new trial upon petition and affidavit showing good cause filed within two years after judgment was signed. See Tex. R. Civ. P. 329(a). Here, the trial court rendered a default judgment in the tax suit on June 8, 2003; therefore, appellants had until June 8, 2005 to file a motion for new trial. Also, a property owner may redeem real property sold at a tax sale within two years after the date the purchaser's deed is filed for record if the property was the owner's homestead residence or the land was designated for agricultural use when suit to collect the tax was filed. See Tex. Tax Code Ann. § 34.21 (Vernon 2001). Appellants do not dispute the Taxing Authorities' allegation that the Bexar County clerk filed the purchaser's deed in the official county records on September 17, 2003. Therefore, appellants had until September 17, 2005 to redeem their property.
The evidence is uncontroverted that appellants had notice of the default judgment at least by the date they filed their plea of intervention in the tax suit on September 29, 2003. However, rather than file a motion for new trial or redeem their property, appellants filed their bill of review on October 16, 2003, which was well within the time period to seek other legal remedies. Accordingly, appellants were not entitled to relief by bill of review, and the trial court did not err in granting the Taxing Authorities' motion for summary judgment.
We review the trial court's granting or denial of a motion for summary judgment under the appropriate standard of review. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A trial court is not required to state the grounds upon which it grants summary judgment. See Hall v. Stephenson, 919 S.W.2d 454, 464 (Tex.App.-Fort Worth 1996, writ denied).
MOTION FOR CONTINUANCE
Appellants also assert the trial court erred by denying their motion for continuance. The denial of a motion for continuance is reviewed under an abuse of discretion standard. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). The denial will be reversed if the trial court acted without regard to guiding principles or was arbitrary or unreasonable. Id.
When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file an affidavit explaining the need for further discovery or a verified motion for continuance. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). We consider the following nonexclusive factors when deciding whether a trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
Appellants filed their bill of review on October 16, 2003, and served their discovery requests on December 6, 2003. The Taxing Authorities responded to the discovery requests on December 24, 2003. The Taxing Authorities filed their motion for summary judgment on June 4, 2004, and appellants filed their response on June 23, 2004. The motion for continuance was filed on June 23, 2004. The hearing on the motion for summary judgment was set for June 30, 2003. In their motion, appellants alleged for the first time that the Taxing Authorities' discovery responses were insufficient. Appellants stated "the matters to which they are alluding and which have no [sic] been sufficiently responded to are relevant and material to their Opposition to the Summary Judgment Motions of both parties. These matters should be resolved as there will be a need for a Motion to Compel." No affidavit explaining the need for further discovery was filed.
At no time, during the almost six month interval between the Taxing Authorities' responding to the discovery requests and filing their motion for summary judgment, did appellants indicate any deficiency in the discovery responses. In their motion for continuance, appellants did not state specifically what additional discovery was needed that was material to any of the grounds raised in the motion for summary judgment. See Two Thirty Nine Joint Venture, 145 S.W.3d at 161 (court did not abuse its discretion in denying continuance because none of the discovery described could have raised a fact issue in response to motion for summary judgment on official immunity). Also, the trial court had before it all relevant information because the evidence necessary to support summary judgment on the issue of whether appellants exercised due diligence to avail themselves of all adequate legal remedies was sufficiently developed when the motion for summary judgment was filed. See Tenneco, 925 S.W.2d at 647; National Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520-21 (Tex. 1995) (per curiam). For these reasons, we conclude the trial court did not abuse its discretion in denying appellants' motion for continuance.
CONCLUSION
The trial court did not err in granting the Taxing Authorities' motion for summary judgment or in denying appellants' motion for continuance. Therefore, we affirm the trial court's judgment. Appellants also assert the trial court erred in rendering summary judgment in favor of the Gallardos. Because only the summary judgment in favor of the Taxing Authorities was made final and appealable by the trial court's severance order, we do not address whether the trial court erred in rendering summary judgment in favor of the Gallardos. Therefore, appellants' appeal from the summary judgment in favor of the Gallardos is dismissed for lack of jurisdiction.