Opinion
No. 01-08-00730-CV
Opinion issued May 7, 2009.
On Appeal from the 257th District Court Harris County, Texas, Trial Court Cause No. 2007-50084.
Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.
MEMORANDUM OPINION
Appellant, Karen Kachar ("Kachar"), appeals the trial court's order dismissing her bill of review. We affirm.
Background
This case arises out of a long history of litigation between Kachar and various parties regarding custody of Kachar's minor daughter, N. On August 22, 2006, the trial court terminated Kachar's parental rights. Kachar filed a motion for new trial and a notice of appeal. On May 31, 2007, this court issued a per curiam memorandum opinion dismissing Kachar's appeal for want of prosecution for failure to either establish indigence or pay or make arrangements to pay the clerk's fee for preparing the clerk's record. Kachar v. Tex. Dep't of Family Protective Servs., No. 01-06-01127-CV, 2007 WL 1559890 (Tex.App. May 31, 2007, no pet.) (mem. op.) (per curiam) (" Kachar I").
In resolving this dispute, we have taken judicial notice of two of our prior opinions stemmingfrom different phases of the same litigation. Douglas v. American Title Co., 196 S.W.3d 876, 878n.1 (Tex.App.-Houston [1st Dist.] 2006, no pet.) ("We may take judicial notice of our own recordsbetween the same parties involving the same subject matter.") (citing Office of Pub. Util. Counselv. Pub. Util. Comm'n of Tex., 878 S.W.2d 598, 600 (Tex. 1994)).
On August 22, 2007, Kachar filed a bill of review petition, seeking to have the termination of her parental rights rescinded. Kachar subsequently filed a "First Amended Bill of Review" and a "First Supplement to First Amended Bill of Review." During the pendency of the matter, the trial court entered an order declaring Kachar a vexatious litigant. This court later affirmed that order on appeal. Kachar v. Dep't of Family and Protective Servs., No. 01-08-00074-CV, 2009 WL 40000 (Tex.App. Jan. 8, 2009, no pet.) (mem. op.) (" Kachar II").
At the trial on Kachar's bill of review, the trial court found that Kachar was not entitled to relief because "an appeal was taken by [Kachar] to the court of appeals on the underlying termination case and . . . that appeal was either dismissed or denied. . . ." On August 5, 2008, the day after the trial, the trial judge signed a final order dismissing Kachar's bill of review on the ground that Kachar "availed herself of her appellate remedies and the appeal was dismissed. . . ."
Bill of Review
In eleven issues, Kachar contends that the trial court erred in dismissing her bill of review.
Standard of Review
A bill of review is an equitable proceeding brought by a person seeking to set aside a judgment that is no longer subject to challenge by a motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96-97 (Tex. 2004); Wolfe v. Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex.App. 2001, pet. denied). Generally, a bill of review plaintiff must allege and prove (1) a meritorious claim or defense to the cause of action that supports the judgment, (2) which she was prevented from making by fraud, accident, or wrongful act of the opposing party, (3) unmixed with any fault or negligence of her own. Caldwell, 154 S.W.3d at 96; Wolfe, 53 S.W.3d at 773.
Additionally, a bill of review is proper only when a party has exercised due diligence to prosecute all adequate legal remedies against a former judgment. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Wolfe, 53 S.W.3d at 773. This due diligence requirement is distinct from the three elements of the bill of review. Caldwell v. Barnes, 975 S.W.2d 535, 537-38 (Tex. 1998).
We review a trial court's ruling on a bill of review for an abuse of discretion, indulging every presumption in favor of the court's ruling. Davis v. Smith, 227 S.W.3d 299, 302 (Tex.App. 2007, no pet.) (citing Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex.App. 2000, pet. denied)). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without reference to guiding rules and principles. Id.
Previous Appeals
While Kachar's brief and live bill of review petition are difficult to follow, her central argument appears to be that the trial court intentionally "sabotag[ed] Kachar's appellate timetable" by denying her access to the trial court's file, tampering with the file, colluding with opposing counsel, and entering a judgment nunc pro tunc in the termination case without giving her notice. As a result, Kachar asserts, her appeal of the termination order was dismissed as untimely filed. However, a review of our opinion in the matter reveals that Kachar's appeal of the termination order was actually dismissed for want of prosecution because Kachar had "neither established indigence, nor paid or made arrangements to pay the clerk's fee for preparing the clerk's record." Kachar I, at *1. Kachar does not contend, and the record does not reflect, that the conduct of the trial court or any other party prevented her from establishing indigence or ensuring that the clerk's fee was paid.
When this court, in Kachar II, affirmed the trial court's order declaring Kachar a vexatious litigant, we held that the trial court did not abuse its discretion in finding that there was no reasonable probability that Kachar would succeed on the merits of her bill of review action, noting that, [b]ecause Kachar received notice [of the proceedings that resulted in termination of her parental rights], and actually filed a direct appeal [ Kachar I] of the judgment she sought to attack via her bill of review, she could not, as a matter of law, establish the second element of a bill of review proceeding — extrinsic fraud that denied her the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. King Ranch, Inc., 118 S.W.3d at 751. Nor, based on these facts, could she have established the third element necessary for a bill of review — that her failure to raise a meritorious defense in the initial litigation was "unmixed with any fault or negligence" on her part. Id.
Such a finding was necessary in order for the court to declare Kachar a vexatious litigant.TEX. CIV. PRAC. REM. CODE ANN. § 11.054 (Vernon 2002) ("A court may find a plaintiff avexatious litigant if the defendant shows that there is not a reasonable probability that the plaintiffwill prevail in the litigation against the defendant. . . .").
Kachar II, at *4.
In the instant matter, we adopt the same position on this issue that we expressed in Kachar II and note further that, because Kachar's appeal from the order terminating her parental rights ( Kachar I) was dismissed for want of prosecution, she also could not establish that she exercised due diligence to prosecute all adequate legal remedies against the termination order.
This is particularly true given the Kachar I opinion's indication that Kachar did notadequately respond to a notice that her appeal was subject to dismissal. Kachar v. Texas Dep't ofFamily Protective Servs., No. 01-06-01127-CV, 2007 WL 1559890, at *1 (Tex.App.-Houston [1stDist.] May 31, 2007, no pet.) (mem. op.) (per curiam) (" Kachar I").
Accordingly, we overrule Kachar's issues and hold that the trial court did not abuse its discretion in dismissing Kachar's bill of review.
Conclusion
We affirm the judgment of the trial court.