Rebecca Lynn Mahady v. Joseph Daniel Mahady ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-247-CV
REBECCA LYNN MAHADY APPELLANT
V.
JOSEPH DANIEL MAHADY APPELLEE
------------
FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
This is an appeal from the trial court’s no-evidence summary judgment
denying appellant Rebecca Lynn Mahady relief in her bill of review proceeding
attempting to set aside the trial court’s final decree of divorce between the
parties. Rebecca brings two issues challenging the propriety of the no-evidence
summary judgment. We reverse and remand.
1
… See T EX. R. A PP. P. 47.4.
Background Facts
Rebecca and appellee Joseph Daniel Mahady were married and had five
children. In 2005, Rebecca left Texas for California; while she was in
California, Joseph instituted divorce proceedings in Texas. After speaking with
Joseph, the process server attempted to serve Rebecca in person and by
alternative service at the parties’ residence in Keller; however, he was unable
to do so because Rebecca was in California. Rebecca was finally served in
California on August 24, 2005, making her answer date September 19, 2005
at 10:00 a.m. See T EX. R. C IV. P. 99(b).
Although Rebecca contends that she sent an answer by UPS and that the
answer was delivered at 9:28 a.m. on September 19, 2005, Joseph obtained
a default decree of divorce that same day. A note on the decree shows that
the prove-up occurred at 10:06 a.m. Rebecca timely filed a motion for new
trial, but the trial court denied it because she failed to appear at the motion for
new trial hearing.
On January 12, 2006, Rebecca filed a petition for bill of review seeking
to set aside the property division in the decree.2 On May 2, 2007, Joseph filed
2
… The trial court had already granted a new trial as to the provisions of
the decree affecting Rebecca’s and Joseph’s three minor children and severed
those proceedings from the divorce and property division.
2
a motion for no-evidence summary judgment and a traditional motion for
summary judgment. Rebecca responded to both motions. On June 25, 2007,
Joseph withdrew his motion for traditional summary judgment but not his no-
evidence motion. That same day, the trial court granted Joseph’s no-evidence
motion for summary judgment and ordered that Rebecca take nothing on her bill
of review petition. Rebecca filed this appeal.
Standard of Review
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense. T EX. R. C IV. P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court
must grant the motion unless the nonmovant produces summary judgment
evidence that raises a genuine issue of material fact. See T EX. R. C IV. P. 166a(i)
& cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a
3
scintilla of probative evidence that raises a genuine issue of material fact, then
a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981
S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).
Applicable Law
A bill of review is an equitable proceeding to set aside a judgment that is
not void on the face of the record but is no longer appealable or subject to a
motion for new trial. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Hartford
Underwriters Ins. v. Mills, 110 S.W.3d 588, 590 (Tex. App.—Fort Worth 2003,
no pet.). Traditionally, a bill of review requires proof of three elements: (1) a
meritorious defense to the underlying cause of action, (2) that was not asserted
due to fraud, accident, wrongful act of an opponent, or official mistake, (3)
unmixed with any fault or negligence by the movant. Ross v. Nat’l Ctr. for the
Employment of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006); King Ranch,
118 S.W.3d at 751–52. A bill of review is proper when a party has exercised
due diligence to prosecute all adequate legal remedies against a former
judgment. King Ranch, 118 S.W.3d at 751; Baker, 582 S.W.2d at 408. This
due diligence requirement is distinct from the three elements of the bill of
4
review and is a prerequisite to bringing a bill of review. 3 Caldwell v. Barnes,
975 S.W.2d 535, 537–38 (Tex. 1998); Davis v. Smith, 227 S.W.3d 299, 302
(Tex. App.—Houston [1st Dist.] 2007, no pet.). The grounds upon which a bill
of review can be obtained are narrow because the procedure conflicts with the
fundamental policy that judgments must become final at some point. King
Ranch, 118 S.W.3d at 751; Alexander v. Hagedorn, 148 Tex. 565, 226
S.W.2d 996, 998 (1950).
Analysis
Both of Rebecca’s issues challenge the propriety of the no-evidence
summary judgment on any of the grounds asserted by Joseph in his motion.
Joseph moved for a no-evidence summary judgment on the following grounds:
a. Meritorious Defense - Petitioner [Rebecca] cannot show that
[she] did not have [the] opportunity to present a defense, rather
Petitioner had [the] opportunity to present a defense but chose
instead to ignore the Texas proceedings.
b. Justification for Failure to Assert Defense - Petitioner cannot
show how [she] failed to make a defense by fraud, accident,
wrongful act of Respondent [Joseph], or official mistake.
3
… Joseph alleged that Rebecca failed to exercise due diligence in
exhausting all legal remedies against the decree only in his traditional motion for
summary judgment, which he withdrew. Therefore, we will not address the
due diligence prerequisite in determining whether the trial court’s no-evidence
summary judgment was proper.
5
c. No Fault or Negligence - Petitioner cannot show the default
judgment was not rendered as a result of [her] fault or negligence,
rather the California forum the Petitioner choose [sic] stated that
[she] has caused many problems for herself by not participating in
the Texas litigation.
In response, Rebecca produced her own affidavit, in which she swore that
she filed her answer on September 19, 2005 and that she relied on the fact
that UPS said it delivered the answer on time in thinking that Joseph could not
obtain a default judgment against her. She also attached a printout from
ups.com showing that UPS had delivered a package to Fort Worth at 9:28 a.m.
on September 19, 2005 that was signed for by “Sellers” in the mail room.
Finally, Rebecca attached a copy of a page entitled “Minute Orders” from the
Superior Court of Marin County, California, in which the judge detailed a
conversation on September 5, 2006 with the presiding judge of the 233rd
District Court of Tarrant County. Although the orders state, “It appears that
[Rebecca] has caused many problems for herself by not participating in the
Texas litigation and that [Joseph] has taken full advantage of [her] status as a
self-represented or defaulting litigant,” the date of these orders is after the
motion for new trial hearing at which Rebecca failed to appear. The orders
appear to be more related to the custody proceedings involving the children
rather than the divorce and property division; in addition, they do not mention
whether Rebecca filed an answer in the divorce proceedings. Further, the
6
orders note that the California trial judge refused to register the decree in
California because Rebecca “did not have notice of all the proceedings in
Texas.”
Joseph’s no-evidence motion is based solely on his contention that
Rebecca is not entitled to set aside the default divorce decree because of her
own failure to participate in the Texas proceedings. 4 However, although the
evidence shows that Rebecca failed to appear at the motion for new trial
hearing after the default decree had already been entered, she did present
evidence in response to Joseph’s no-evidence motion showing that before the
decree was entered, she sent her answer via UPS and that it arrived at 9:28
a.m. on September 19, 2005, shortly before the 10:00 a.m. deadline and only
a few minutes before the 10:06 a.m. default hearing. Furthermore, at the
motion for new trial hearing, Joseph’s counsel admitted that Rebecca had filed
an answer on September 19.
4
… A careful reading of his no-evidence motion shows that he never
asserted as a ground that Rebecca failed to allege facts showing that she had
a meritorious defense to the property division. Nevertheless, we note that even
though the divorce was granted on the no-fault ground of insupportability, the
decree awards Rebecca, who had been married to Joseph for at least ten years,
only her clothing, jewelry, and personal effects then currently in her possession;
it also awards Joseph’s attorney $10,000 in attorney’s fees for trial even
though it recites that Joseph incurred only $4,500 in attorney’s fees. Thus, a
meritorious defense to at least part of the decree is apparent from its face.
7
In similar circumstances, the supreme court has held that “the necessity
of pleading and proving accident, fraud[,] or wrongful act” is obviated. Baker,
582 S.W.2d at 407. In that case, the defendants had sent a letter denying the
allegations in the suit directly to the trial judge, but the letter was misplaced
through no fault of the defendants after it had been received in the Travis
County courthouse mailroom. Id. at 405-07. The trial court denied the bill of
review, but the court of appeals reversed and the supreme court affirmed the
court of appeals. Id. at 406.
Here, there is at least some evidence that Rebecca attempted to
participate in the Texas proceedings by filing a timely answer and that she was
prevented from doing so through no fault of her own. Accordingly, we hold
that Rebecca brought forward more than a scintilla of evidence sufficient to
raise a genuine issue of material fact as to the three elements of a bill of review
proceeding. We sustain her first issue.
8
Conclusion
Having sustained Rebecca’s first issue as dispositive and having
determined that the trial court erred by granting a no-evidence summary
judgment that Rebecca take nothing on her bill of review petition, we reverse
the trial court’s judgment and remand this case for trial.
TERRIE LIVINGSTON
JUSTICE
PANEL A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DELIVERED: June 26, 2008
9