Pike, Mac v. Alvarez, Edgar ( 2000 )

NUMBER 13-98-189-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

MAC PIKE, Appellant,

v.

EDGAR ALVAREZ, Appellee.

___________________________________________________________________

On appeal from the 275th District Court

of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Yañez and Chavez

Opinion by Justice Yañez

In a single issue, Mac Pike, appellant, challenges the dismissal of his bill of review. We affirm.

Mac Pike was sued as Mac Pike d/b/a McAllen Aviation Center by Edward Alvarez, appellee. Alvarez alleged several causes of action arising from the theft of his airplane while it was stored in a hangar at the McAllen Aviation Center. In the course of the litigation, Pike's attorney withdrew from representing him and Pike changed his address. Alvarez eventually obtained a default judgment against Pike. Pike claims that he received no notice of either the trial setting or the default judgment, because of a mistake made by the court in mailing Pike's notice to his old address. According to Pike, he was unaware that the case had been set for trial and it was several years after the judgment issued that he became aware of the default judgment. Pike challenged the default judgment with a motion for a bill of review. Following a hearing, the trial court dismissed Pike's bill of review, holding that Pike had failed to present a meritorious defense as required by law. Pike appeals this dismissal.

A bill of review is an equitable action used to attack a judgment "which 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 must be brought within four years of the date of the judgment. Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 1997 and Supp. 2000); Tex. R. Civ. P. 329b(f); Defee v. Defee, 966 S.W.2d 719, 722 (Tex. App.--San Antonio 1998, no pet.); Law v. Law, 792 S.W.2d 150, 153 (Tex. App.--Houston [1st. Dist.] 1990, writ denied). "The only exception to the four-year limitation is for petitioner to show extrinsic fraud." Law, 792 S.W.2d at 153.

At the pre-trial hearing on Pike's bill of review, Alvarez argued that the bill of review should be dismissed because it was filed outside the limitations period. In an affidavit admitted in evidence at the hearing Pike stated that a judgment was taken against him in February of 1991. Pike did not file his motion for a bill of review until October 31, 1996, over five years after the judgment. Pike neither alleges that he was prevented from discovering the default judgment as a result of extrinsic fraud, nor does he offer any evidence of extrinsic fraud. Pike's bill of review is barred by the statute of limitations and the trial court had no authority to set aside the judgment. See Defee, 966 S.W.2d at 722. Because this issue is dispositive, we do not reach Pike's other contentions. Tex. R. App. P. 47.1.

The judgment of the trial court is AFFIRMED.

________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 15th day of June, 2000.