Opinion
NO. 12-11-00330-CV
05-31-2012
WILLIE HOOPER GENDKE, APPELLANT v. ROBERT V. HOOPER, APPELLEE
APPEAL FROM THE 273RD JUDICIAL DISTRICT COURT SHELBY COUNTY, TEXAS
MEMORANDUM OPINION
Willie Hooper Gendke appeals from the trial court's order denying her petition for a bill of review. She raises four issues on appeal. We affirm.
BACKGROUND
Gendke and Robert V. Hooper are the children of Ruby Treva Carter. Treva died on April 29, 1989. At the time of her death, Treva was married to James Douglas Carter, Sr., Gendke and Hooper's stepfather. Treva left a will that named James as the sole beneficiary, but James never probated the will.
After James died in 2009, Hooper, as the independent executor of James's will, encountered problems when he tried to sell property that he believed had passed from Treva to James and then to James's heirs. He attempted to have Gendke sign a deed releasing any interest she had in the property, but Gendke refused to do so. In 2010, Hooper filed an application to probate Treva's will as a muniment of title. Notice of the hearing on the application was posted at the courthouse as required by law. However, there is no indication that Gendke received notice by personal service. Gendke failed to appear at the hearing, and the trial court approved Hooper's application.
Gendke, proceeding pro se, filed a petition for a bill of review in which she alleged that she had not been served with process, and did not learn of the proceeding until after a final judgment had been entered and the time for appealing the judgment had passed. At the hearing on the bill of review, Gendke delivered an opening statement. Hooper responded that Gendke could not establish the requirements of a bill of review. Gendke presented no witnesses or evidence at the hearing. The trial court denied Gendke's petition for bill of review. This appeal followed.
GENDKE'S APPELLATE BRIEF
Under the heading "Issues Presented" in Gendke's appellate brief, she asks four questions regarding the trial court's decision. First, Gendke asks, "Does the Texas Constitution, [Art. 1, § 19] recognize that due course requires procedures tailored to reducing the risk of an erroneous deprivation of that property interest through live testimony, cross-examination of witnesses, an opportunity to examine all evidence, and the opportunity for rebuttal?" She clarified this issue with another question, "Did the [trial court] err in ignoring Hooper's lack of service of citation and return on Gendke?" Second, she asks, "Did the [trial court] err in failing to consider the family agreement entered into by Hooper, James, and Gendke in 2003 to [not] probate Treva's will?" Third, Gendke asks, "Did the [trial court] err in finding against Gendke, a pro se litigant, for non-compliance with a procedure?" Again, she clarified this question with another question, "Did the [trial court] err in not instructing Gendke in how the pleadings were deficient and how to repair the pleadings?" Fourth, Gendke asks, "Did the [trial court] err in considering how Gendke could overcome a negative verdict on a bill of review?" She clarified this question by asking, "Did the [trial court] err in not considering any [aspect] of the bill of review other than Gendke had been in non-compliance with a procedure?"
We construe Gendke's first and second issues as complaints that the trial court abused its discretion in weighing the evidence. We construe Gendke's third and fourth issues as complaints that the trial court abused its discretion in its handling of the hearing on her application for bill of review.
BILL OF REVIEW REQUIREMENTS
A bill of review is an equitable proceeding to set aside a prior judgment that can no longer be attacked by motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). We review the trial court's decision on a bill of review under an abuse of discretion standard. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.—Dallas 2008, pet. denied). A trial court abuses its discretion when its decision is unreasonable, arbitrary, or without regard for any guiding rules or principles. Lively v. Blackwell, 51 S.W.3d 637, 641 (Tex. App.-Tyler 2001, pet. denied).
Generally, a bill of review plaintiff must plead and prove (1) a meritorious defense to the underlying cause of action, (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 on her own part. Caldwell, 154 S.W.3d at 96. Bill of review plaintiffs claiming nonservice, however, are relieved of the first two elements ordinarily required to be proved in a bill of review proceeding. Id. The bill of review plaintiff alleging she was not served, however, must still prove the third element, i.e., that the judgment was rendered unmixed with any fault or negligence of her own. Id. at 97. This third and final element is conclusively established if the plaintiff can prove she was not served with process.Id.
THE EVIDENCE
In her first and second issues, Gendke complains that the trial court abused its discretion in weighing the evidence. In the hearing on her bill of review, Gendke made an opening statement, stating that she had not been served with citation by Hooper. She also referred to a family settlement agreement regarding Treva's estate. However, Gendke did not present any evidence at the hearing. She did not testify, call any witnesses, or offer documentary evidence into the record. After Gendke's opening statement and Hooper's response, the trial court ruled on the bill of review. Thus, in determining whether the trial court abused its discretion, we have no evidence to weigh. Because Gendke had the burden to prove the third element of her bill of review, the complete lack of evidence is fatal to her claims. See id. at 96-97. Therefore, the trial court did not abuse its discretion in weighing the evidence and determining that Gendke failed to satisfy her burden of proof. We overrule Gendke's first and second issues.
THE HEARING
In her third and fourth issues, Gendke complains that the trial court abused its discretion in handling the hearing. Specifically, she argues that the trial court should have provided her more assistance at the hearing because she was proceeding pro se. Gendke cites "Wright, Re Robert John, No. 09-1013, 2010 (Tex.—Supreme) (Feb. 22, 2010)" for the proposition that "procedural non-compliance by a pro se litigant places a burden on the court to instruct the pro se litigant of how [the] pleading[s] are deficient and how to repair [the] pleadings."
Gendke's argument fails for at least three reasons. First, a pro se litigant is held to the same standard as a licensed attorney. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.-Texarkana 1997, no pet.). Second, an appellant must provide a brief that contains a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. See TEX. R. APP. P. 38.1(i). Failure to cite applicable authority waives an issue on appeal. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas 2006, no pet.). In the Wright case above, the Texas Supreme Court denied the petition for mandamus without an opinion. See In re Wright, No. 09-1013, 2010 Tex. LEXIS 222 (Tex. Mar. 12, 2010, orig. proceeding [mand. denied]). Because Gendke failed to cite applicable authority, she has waived her complaint on appeal that the trial court should have provided assistance to her at the hearing. See TEX. R. APP. P. 38.1(i); Huey, 200 S.W.3d at 854.
Third, as a prerequisite to presenting a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. See TEX. R. APP. P. 33.1(a)(1)(A). Gendke did not timely object to the manner in which the trial court conducted the hearing. Therefore, she waived any error on appeal. We overrule Gendke's third and fourth issues.
DISPOSITION
Having overruled Gendke's four issues, we affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
NO. 12-11-00330-CV
WILLIE HOOPER GENDKE, Appellant
V.
ROBERT V. HOOPER, Appellee
Appeal from the 273rd Judicial District Court
of Shelby County, Texas. (Tr.Ct.No. 11-CV-31,614)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellant, WILLIE HOOPER GENDKE, for which execution may issue, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.