Opinion
NO. 14-16-00852-CV
03-13-2018
EARNEST PEEL, Appellant v. H.E. BUTT GROCERY COMPANY, Appellee
On Appeal from the 215th District Court Harris County, Texas
Trial Court Cause No. 2016-26177
MEMORANDUM OPINION
The present dispute stems from a summary judgment granted in a prior lawsuit between the parties. Appellant Earnest Peel previously sued his former employer, H.E. Butt Grocery Company ("HEB"), alleging retaliation and discrimination. After HEB received a summary judgment in its favor, Peel did not appeal. Approximately eight months after the summary judgment order was signed, Peel filed a bill of review petition, in which he requested the district court to grant him a new trial due to the alleged misconduct of his prior attorneys. Following a hearing, the trial court denied relief and dismissed Peel's bill of review proceeding with prejudice. Peel appeals the dismissal order. Concluding that Peel has failed to establish that the trial court erred in denying the extraordinary relief contemplated by the bill of review procedure, we affirm.
Background
HEB employed Peel as a driver. According to Peel's first amended petition for bill of review, Peel believed HEB discriminated against him. In October 2013, Peel and HEB purportedly entered into a settlement agreement and Peel resigned.
Our record does not reveal the exact nature of the dispute that the settlement agreement purportedly resolved.
Peel later sued HEB in October 2014, for alleged employment discrimination. HEB moved for summary judgment, which the trial court granted on August 28, 2015. Peel did not appeal that final judgment.
Eight months later, Peel filed a petition for bill of review in the present suit. In his first amended petition, he sought to set aside the 2015 summary judgment "due to . . . (1) [HEB's] attempts to impose the enforcement of a nonexistent settlement agreement upon Peel and (2) HEB colluding with Peel's prior counsel to prevent Peel from gaining other counsel to oppose HEB's summary judgment." The only evidence Peel attached was his affidavit.
HEB filed a response in opposition to the petition for bill of review, which included a request that the court deny the petition and dismiss the case. HEB argued that Peel failed to allege or present prima facie proof of any of the essential elements necessary to obtain bill of review relief. See Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979). According to HEB, (1) Peel did not present prima facie evidence of a meritorious ground for appeal, (2) Peel could not show that he was prevented from presenting his arguments by accident, fraud, wrongful conduct of the opposing party, or official mistake, and (3) Peel's own fault or negligence contributed to Peel's failure to pursue his appellate remedies.
The trial court held a hearing on Peel's petition. Counsel for both sides argued all three elements of Peel's petition, but neither side offered any evidence. The trial court denied Peel's bill of review and dismissed the suit with prejudice. Peel now appeals.
Analysis
A. Standard of Review and Governing Law
A bill of review is an equitable proceeding brought by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. Baker, 582 S.W.2d at 406. A bill of review is proper when a party has exercised due diligence to prosecute all legal remedies against a former judgment. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Because Texas favors the finality of judgments, the grounds for granting a bill of review are narrow. Id. To invoke the court's equitable jurisdiction, a bill of review petitioner must first file a petition alleging factually and with particularity three elements: (1) a meritorious claim or defense; (2) fraud, accident, or wrongful act by the petitioner's opponent or official mistake, which prevented the petitioner from asserting the petitioner's claim or defense; and (3) the absence of fault or negligence of the petitioner. Baker, 582 S.W.2d at 408; see also Beck v. Beck, 771 S.W.2d 141, 141 (Tex. 1989); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). When, as here, the petitioner participated in the underlying suit, the petitioner must allege a meritorious ground for appeal instead of a meritorious claim or defense. Morris v. O'Neal, 464 S.W.3d 801, 805 (Tex. App.—Houston [14th Dist.] 2015, no pet.). "A meritorious ground of appeal is one that, had it been presented to the appellate court as designed, might, and probably would, have caused the judgment to be reversed." Cannon v. TJ Burdett & Sons Recycling, No. 01-08-00380-CV, 2009 WL 276797, at *4 (Tex. App.—Houston [1st Dist.] Feb. 5, 2009, no pet.) (mem. op.).
Baker announced that "a prima facie meritorious defense is made out when it is determined that the complainant's defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered." Baker, 582 S.W.2d at 408-09.
We review the denial of a bill of review under an abuse of discretion standard. Morris, 464 S.W.3d at 806. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Id. Under the abuse of discretion standard, challenges to the sufficiency of the evidence are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.—Houston [14th Dist.] 2002, no pet.). An abuse of discretion does not occur when the record contains some evidence of a substantial and probative character to support the trial court's ruling. Id. When, as here, no findings of fact or conclusions of law were made or requested, we presume the trial court made all findings necessary to support its judgment. See Grant v. Wilson, No. 14-11-00320-CV, 2012 WL 170873, at *1 (Tex. App.—Houston [14th Dist.] Jan. 19, 2012, no pet.) (mem. op.).
B. Application
Peel argues that the trial court erred in denying his bill of review. In his amended petition, Peel raised two grounds that he contends entitle him to a new trial following the 2015 summary judgment, namely: (1) that he never agreed to a purported settlement agreement; and (2) that HEB "collude[ed] with Peel's prior counsel to prevent Peel from gaining other counsel to oppose HEB's summary judgment motion." As his sole piece of evidence, Peel attached an affidavit to his petition, detailing the allegedly discriminatory conduct he claimed he experienced as an employee and disputing his attorney's authority to enter a settlement agreement with HEB. The affidavit says nothing about the summary judgment that Peel urged the trial court to vacate.
On appeal, Peel argues that his trial counsel "fraudulently cooperated with HEB's attorneys in order to secure the $115,000 settlement payment . . . instead of . . . [pursuing Peel's] retaliation remedies." We liberally construe Peel's pro se appellate brief as raising the arguments presented in his bill of review petition. See, e.g., Garrett v. Graham, No. 14-16-00609-CV, 2017 WL 3927499, at *1 (Tex. App.—Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.).
We first address the procedural character of the trial court's dismissal. In response to Peel's First Amended Petition for Bill of Review, HEB filed a document entitled "Response in Opposition to Plaintiff's Belated 'First Amended Petition for Bill of Review' and Request for Dismissal with Prejudice." The trial court conducted an oral hearing, during which both parties presented argument on the merits of each bill of review element, and Peel was afforded the opportunity to present evidence on all elements. Peel offered no evidence during the hearing. The trial court signed an order stating that Peel's bill of review is "denied" and his First Amended Petition for Bill of Review is "dismissed with prejudice." The order does not state the grounds for dismissal. Because both parties substantively argued all three bill of review elements during the hearing, we will construe the character of the oral hearing as one addressing the merits of the bill of review. No party contends otherwise or complains on appeal about any aspect of the trial court's procedure.
At the end of the hearing, Peel's counsel offered to let his client "speak briefly" regarding "the post-trial procedures and why he could not get appellate counsel." The court declined to entertain that narrative. Peel offered no evidence during the hearing, and he does not contend on appeal that he was denied the opportunity to present evidence.
We assume for argument's sake that Peel presented prima facie proof of a meritorious ground for appeal, and we turn to whether there exists some evidence of the remaining two bill of review elements. Baker, 582 S.W.2d at 409. It was Peel's burden to prove by a preponderance of the evidence that "the prior judgment was rendered as a result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with negligence on the complainant's part." Id. Peel made no attempt to prove fraud, accident, or a wrongful act by HEB or official mistake. Peel also did not offer any evidence that he was not negligent in failing to appeal the underlying summary judgment, in which he participated.
In sum, Peel presented no evidence of any "fraud, accident or wrongful act of the opposite party or official mistake unmixed with negligence on [Peel's] part." Id.
For these reasons, we conclude that the trial court did not abuse its discretion when it denied Peel's petition for bill of review and dismissed the case with prejudice. We overrule Peel's sole issue on appeal.
Conclusion
We affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Chief Justice Frost and Justices Christopher and Jewell.