Alex Melvin Wade Jr. v. Dominion at Woodlands ( 2018 )

Affirmed and Memorandum Opinion filed July 10, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00777-CV
ALEX MELVIN WADE, JR., Appellant
V.
DOMINION AT WOODLANDS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Court Cause No. 17-05-05876-CV
MEMORANDUM OPINION
Appellant Dr. Alex Melvin Wade, Jr. appeals the trial court’s denial of his
petition for bill of review. Wade previously sued his former apartment complex,
appellee Dominion at Woodlands.1 The trial court granted summary judgment in
favor of Dominion. Wade did not timely appeal that judgment.
1
In the underlying suit, Wade sued “Dominion at Woodlands a/k/a The Lynd Company.”
The trial court’s order in this suit states that the court granted “Defendants’ Dominion at
Woodlands and The Lynd Company Motion for Summary Judgment.” For ease of reference, we
Approximately ten years after the summary judgment order was signed,
Wade filed the present bill of review petition, requesting the court grant him a new
trial. Wade contends that Dominion committed extrinsic fraud and his due process
rights were violated in the underlying proceeding, all of which prevented him from
presenting a meritorious claim or pursuing a meritorious appeal. Dominion moved
for summary judgment, arguing among other things that Wade’s bill of review was
untimely. The trial court granted Dominion’s motion and dismissed the case.
Because we agree with Dominion that the statute of limitations bars Wade’s
petition for bill of review, we affirm.
Background
Wade was a resident at Dominion. In 2006, Dominion evicted Wade from
his apartment for failure to pay rent. In 2007, Wade filed suit against Dominion
for wrongful eviction, negligence, and breach of contract.2 According to
Dominion, Wade and Dominion each filed motions for summary judgment, and
both motions were set for submission on August 29, 2007.3
Dominion asserts that the trial court granted Dominion’s motion for
summary judgment on October 17, 2007, and the court clerk mailed notice of the
final judgment on October 22, 2007. Wade contends that he never received notice
of the judgment, however, because he was not living at the address provided in his
petition, where the clerk presumably sent the notice of judgment. Rather, Wade
was confined in county jail from July 27, 2007 until September 8, 2008. Upon
refer to Dominion singularly, but we intend this singular reference to encompass any allegations
by or against Lynd, as relevant.
2
In the underlying suit, Wade claimed that he did not pay rent because his apartment was
environmentally unsafe due to alleged mold contamination and that he also suffered injury
caused by the contamination.
3
Our record does not contain the motions for summary judgment, the notices of
submission, or any of the trial court’s orders in the underlying suit.
2
being released from jail in 2008, Wade learned of the summary judgment against
him. Wade filed a motion for new trial, which was dismissed.
Wade filed the present petition for bill of review on May 11, 2017. In his
original and amended petitions, Wade sought to set aside the 2007 summary
judgment because: (1) Dominion allegedly committed fraud during the underlying
court proceedings by withholding evidence regarding the mold contamination in
Wade’s apartment; (2) Dominion provided no notice of the summary judgment
hearing; and (3) Wade did not receive notice of the final judgment. Dominion
moved for summary judgment, contending that Wade’s petition for bill of review
was barred by limitations and was without merit. The trial court granted
Dominion’s motion without specifying the grounds for its ruling, and dismissed
Wade’s petition.
Wade now appeals, raising substantially the same arguments as below.4
Analysis5
A. Equitable Bills of Review
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 v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). A
bill of review is proper when a party has exercised due diligence to prosecute all
4
Wade proceeded pro se in the trial court, as he does in this appeal. We construe pro se
filings and briefs liberally but nonetheless hold pro se litigants to the same standards as licensed
attorneys. See Redmond v. Kovar, No. 09-17-00099-CV, 2018 WL 651272, at *2 (Tex. App.—
Beaumont Feb. 1, 2018, no pet.) (mem. op.); Nabelek v. Bradford, 228 S.W.3d 715, 717 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied).
5
Wade appealed to the Beaumont Court of Appeals, and the case was subsequently
transferred to our court. Because of the transfer, we must decide the case in accordance with the
precedent from the Ninth Court of Appeals if our decision otherwise would have been
inconsistent with the precedent of the transferring court. See Tex. R. App. P. 41.3.
3
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, these three elements: (1) a meritorious claim or
defense;6 (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 406-07; see also Beck v. Beck, 771 S.W.2d 141, 141 (Tex.
1989); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).
A petition for an equitable bill of review ordinarily must be brought within
four years of the date of the underlying judgment. Valdez v. Hollenbeck, 465
S.W.3d 217, 226 (Tex. 2015); see also Tex. Civ. Prac. & Rem. Code § 16.051.
The only clear exception to this rule is that extrinsic fraud may toll the statute of
limitations for a bill of review. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275
(Tex. 2012); cf. also Valdez, 465 S.W.3d at 225-26, 231 (not addressing plaintiffs’
argument that fraudulent concealment also operates to toll limitations for a bill of
review). Extrinsic fraud is fraud that denies a party the opportunity to fully litigate
at trial all the rights or defenses that could have been asserted. See, e.g., King
Ranch, 118 S.W.3d at 752. Extrinsic fraud will not toll the limitations period
indefinitely, however. Even when extrinsic fraud is present, “a bill of review’s
four-year limitations period begins to run when the litigant knew or should have
known about the [] judgment.” PNS Stores, 379 S.W.3d at 277 n.16.
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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. Shaw v. Shaw,
No. 09-17-00112-CV, 2018 WL 651273, at *2 (Tex. App.—Beaumont Feb. 1, 2018, no pet.)
(mem. op.).
4
B. Standard of Review
We review the denial of a bill of review under an abuse of discretion
standard. Shaw, 2018 WL 651273, at *3. A trial court abuses its discretion if it
acts arbitrarily, unreasonably, or without reference to any guiding rules or
principles. Id. “In reviewing the grant or denial of a bill of review, every
presumption is indulged in favor of the court’s ruling, which will not be disturbed
unless it is affirmatively shown that there was an abuse of judicial discretion.” Id.
(internal quotation omitted). When the inquiry concerns a question of law, we
review the trial court’s decision de novo. Id.
C. Application
Wade initiated this bill of review proceeding nearly ten years after the trial
court rendered summary judgment against him in the underlying suit, which
“necessarily gives rise to limitations concerns.” Valdez, 465 S.W.3d at 225. In the
absence of tolling, the limitations period on Wade’s bill of review expired in 2011.
The pertinent questions in this appeal, then, are whether the limitations period was
tolled and when that tolling, if any, ceased.
Though Wade does not expressly address tolling, he argues on appeal that he
did not personally receive actual notice of the summary-judgment hearing or the
final judgment and that Dominion committed extrinsic fraud during the underlying
proceeding. We need not reach the issue of whether any of these actions or
omissions operates to toll the statute of limitations, because we conclude Wade’s
petition for bill of review was untimely even if the limitations period was tolled.
See id. at 231 (declining to reach issue of whether fraudulent concealment applied
to toll limitations because bill of review was untimely even if limitations period
was tolled).
5
1. Lack of notice of the dispositive hearing or judgment
Wade contends that he did not receive notice of the hearing on Dominion’s
motion for summary judgment or of the final judgment in the underlying
proceeding. Dominion asserts that it served Wade with notice of the hearing at the
address provided in Wade’s petition. In response, Wade contends that Dominion’s
attorney knew Wade was in jail at the time of the hearing and should have sent
notice of the hearing to the jail. Wade makes no claim as to whether the court
clerk knew or should have known that Wade was in jail at the time the clerk sent
notice of the judgment.
Wade’s complaints about lack of notice do not entitle him to relief. Wade
admits—both in an affidavit filed in the trial court and in his brief on appeal—that
upon being released from county jail in 2008, he discovered that the trial court had
granted summary judgment against him. Wade’s actual knowledge of the
judgment prompted him to file a motion for new trial, albeit an untimely one.
Thus, assuming Wade lacked notice of the judgment, and further assuming his lack
of knowledge tolled the limitations period until he learned of the judgment, any
tolling expired and the limitations period began to run once Wade learned of the
judgment in 2008. Under these circumstances, the limitations period for Wade’s
petition for bill of review expired, at the latest, in 2012, well before he initiated the
current proceeding. PNS Stores, Inc., 379 S.W.3d at 275, 277 n.16; Valdez, 465
S.W.3d at 229-31.
2. Extrinsic fraud
Wade’s remaining argument is that Dominion committed extrinsic fraud by
withholding evidence of a mold report during the original 2007 proceeding, which
could have helped Wade substantiate a meritorious claim. Wade contends that he
was not aware that Dominion had withheld the mold report until March 2017.
6
We need not address whether Dominion’s alleged withholding of evidence is
extrinsic fraud, which may toll the limitations period, or intrinsic fraud, which
would not. See PNS Stores, 379 S.W.3d at 275 & n.14 (explaining the difference
between extrinsic and intrinsic fraud). Assuming Dominion’s alleged conduct
constitutes extrinsic fraud, any withholding of evidence did not prevent Wade from
learning about the judgment, which is the operative triggering event for limitations
purposes. See id. at 277 n.16 (“[A] bill of review’s four-year limitations period
begins to run when the litigant knew or should have known about the []
judgment.”). We therefore reject Wade’s suggestion that the limitations period
was tolled until he learned of the allegedly withheld evidence in 2017. See id.
We hold that Wade’s petition for bill of review is untimely.
Conclusion
For the reasons above, we conclude that the trial court did not abuse its
discretion in granting summary judgment to Dominion and denying Wade’s
petition for bill of review. Accordingly, without reaching the merits of Wade’s bill
of review or his underlying claims or defenses, we affirm the trial court’s
judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jamison, Wise, and Jewell.
7