Sandra L. Sims v. Tina Thomas and Simone Johnson ( 2022 )

AFFIRM; Opinion Filed November 29, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00814-CV
SANDRA L. SIMS, Appellant
V.
TINA THOMAS AND SIMONE JOHNSON, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-16441
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Goldstein
Opinion by Justice Schenck
Sandra L. Sims appeals from the trial court’s judgment dismissing with
prejudice her petition for bill of review. In four issues, Sims challenges the trial
court’s orders denying her motion for entry of default judgment against appellee
Simone Johnson and granting appellee Tina Thomas’s no-evidence motion for
summary judgment, as well as the trial court’s failure to rule on Sims’ objections to
Thomas’ no-evidence motion for summary judgment. We affirm the trial court’s
judgment. Because all dispositive issues are settled in law, we issue this
memorandum opinion. See TEX. R. APP. 47.2(a), 47.4.
BACKGROUND1
Three sisters, all adults, inherited a house in south Dallas (the Property) from
their mother in 2010. The sisters are appellee Thomas, Johnson, and appellant Sims.
Dallas County sued all three sisters for delinquent property taxes. Thomas
subsequently filed suit against Johnson and Sims, seeking an order to partition and
sell the Property. Sims answered Thomas’s suit and filed a counterclaim for
reimbursement of property taxes and money she had spent maintaining and
improving the Property. The case was tried to the bench in July 2017.
On August 24, 2017, the trial judge signed the final judgment. The judgment
granted each sister a one-third interest in the Property and granted Sims $2,500 in
reimbursement for improvements to the Property. It also gave Sims thirty days to
attempt to negotiate a buy-out with her sisters, absent which the Property would be
sold by a receiver. Attempts to negotiate a buy-out failed, and on January 22, 2018,
an associate judge signed an order authorizing the receiver to solicit a cash bid on
the Property from Thomas and directing the receiver to proceed with the sale.
Sims filed a notice of restricted appeal, in which she stated her intent to appeal
both the 2017 judgment and the 2018 order authorizing sale. We dismissed as
untimely the portion of the appeal attacking the 2017 judgment and proceeded to
1
The factual and procedural background information in this section is drawn from the clerk’s record
and our previous opinions related to this case on direct appeal. See Sims v. Thomas, No. 05-22-00092-CV,
2022 WL 1210431, at *1 (Tex. App.—Dallas Apr. 25, 2022, no pet.) (mem. op.); Sims v. Thomas, 584
S.W.3d 880, 881 (Tex. App.—Dallas 2019, no pet.); Sims v. Dallas Cty., No. 05-18-00712-CV, 2019 WL
2004054, at *1 (Tex. App.—Dallas May 7, 2019, pet. denied) (mem. op.).
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address Sims’ issues attacking the 2018 order authorizing sale. See Sims v. Thomas,
584 S.W.3d 880, 882 (Tex. App.—Dallas 2019, no pet.). We ultimately agreed with
Sims that the trial court erred by failing to conduct a hearing on the receiver’s
application to sell the Property, sustained that issue, reversed the order, and
remanded the case for further proceedings. See id. at 885.2
Sims filed the instant lawsuit seeking a bill of review to vacate the 2017
judgment and the 2018 order authorizing the sale of that same Property. Sims
repeated the argument she had made on appeal that no hearing took place before the
trial court signed the 2018 order authorizing the sale and argued that the 2017
judgment was rendered against Sims as a result of fraud by Thomas. Sims also
argued the trial court lacked any jurisdiction to partition the Property because “in
Dallas County, only the probate courts of Dallas can render judgments related to the
estates of decedents.”
Thomas answered Sims’ suit, but Johnson did not. According to Thomas,
Sims already appealed the 2017 judgment to this Court and, because she did not raise
any jurisdictional issues then, had waived same. Thomas further answered that the
probate code authorized the partition of the Property.
Sims filed a motion for default judgment against Johnson, urging that she had
been served but had not yet answered.
2
Sims later made a second attempt to appeal the 2017 judgment, but we dismissed that appeal as
untimely. See Sims v. Thomas, No. 05-22-00092-CV, 2022 WL 1210431, at *1 (Tex. App.—Dallas Apr.
25, 2022, no pet.) (mem. op.).
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Thomas filed a no-evidence motion for summary judgment, challenging Sims’
evidence of any official mistake or act of fraud, accident or wrongful act of the
opposing party, or that Sims was not at fault, or that Sims has a meritorious ground
of appeal. Sims filed an amended petition and later a response to Thomas’ motion,
which included objections to Thomas’ motion. After hearing Thomas’ motion by
submission, the trial court signed an order granting the motion and dismissing with
prejudice Sims’ petition for bill of review. Thomas filed an objection to the entry of
default judgment against Johnson, relying on the trial court’s grant of no-evidence
summary judgment. After hearing Sims’ motion for default judgment by
submission, the trial court signed a judgment denying the motion for default
judgment, ordering that Sims take nothing from either Thomas or Johnson, and
dismissing with prejudice her petition for bill of review.
Sims filed a motion for new trial. That motion was overruled by operation of
law, and this appeal followed.3
DISCUSSION
I. Sims Failed to Produce Sufficient Evidence to Defeat Summary
Judgment
In her first issue, Sims challenges the trial court’s grant of Thomas’ no-
evidence motion for summary judgment. She urges she produced sufficient evidence
3
Sims filed her appellant’s brief, but no other party filed a brief in this case. Nor is any appellee’s brief
required in order for this appeal to be determined. See King Aerospace, Inc. v. King, No. 05-19-00245-CV,
2020 WL 2079177, at *3 n.3 (Tex. App.—Dallas Apr. 30, 2020, no pet.) (mem. op.).
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to support her petition for bill of review and that Thomas failed to object to any of
that evidence.
We review a trial court’s granting of summary judgment de novo. Arana v.
Figueroa, 559 S.W.3d 623, 627 (Tex. App.—Dallas 2018, no pet.) (citing Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). No-evidence summary
judgments are reviewed under the same legal sufficiency standard as directed
verdicts. Id. The nonmovant must present evidence that raises a genuine issue of
material fact on the challenged elements of the claim. TEX. R. CIV. P. 166a(i); see
id. (citing S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)). A no-
evidence challenge will be sustained when (a) there is a complete absence of
evidence of a vital fact, (b) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact. Arana, 559 S.W.3d at 627
(citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)).
A bill of review is an equitable proceeding to set aside a prior judgment that
is no longer subject to challenge by a motion for a new trial, direct appeal, or
restricted appeal. See Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812
(Tex. 2012). Ordinarily, a bill-of-review plaintiff must plead and prove: “(1) a
meritorious defense to the underlying cause of action, (2) which the plaintiff[ ] [was]
prevented from making by the fraud, accident, or wrongful act of the opposing party
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or official mistake, (3) unmixed with any fault or negligence on [its] own part.” Id.But when a bill-of-review plaintiff claims a due process violation for no service or
notice, it is relieved of proving the first two elements set out above. Id. The third
element, lack of negligence, is conclusively established if the bill-of-review plaintiff
can prove it was never served with process. Id.Sims’ amended petition alleged the trial court in the underlying suit lacked
jurisdiction because it was a matter related to a decedent’s estate over which probate
courts in Dallas County have exclusive jurisdiction, Thomas lacked standing to bring
the underlying suit because she was not named as heir to the estate, and her due-
process rights were violated when the trial court failed to conduct a hearing or
provide Sims notice of any hearing on the sale of the Property. The petition also
alleged various acts of fraud or official mistake, particularly that Thomas
misrepresented the ownership of the Property, that their parents died intestate, and
that ownership of the Property had not been conferred on Thomas or her and Sims’
siblings.
In her motion for summary judgment, Thomas asserted there was no evidence
to support Sims’ allegations of an official mistake or act of fraud, accident or
wrongful act of the opposing party, Sims’ lack of fault, or a meritorious ground of
defense. In her response, Sims provided evidence that she urges, at a minimum,
raises a fact issue regarding each element of a bill of review.
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A. Lack of Service of Process
Because Sims alleged in her petition a due process violation for no service or
notice, if she provided evidence of same, she would then be relieved of proving the
first two elements of the bill of review. Mabon Ltd., 369 S.W.3d at 812. And, if she
offered evidence she was never served with process, that evidence would satisfy the
third element, lack of negligence. Id. But, in her response to Thomas’ motion, she
did not offer evidence to support her allegation that she did not receive notice before
the trial court “rendered a judgment against plaintiff.” Indeed, it appears that what
Sims complains of in her petition is the same error she complained of in her earlier
restricted appeal, that the trial court erroneously failed to conduct a hearing on the
receiver’s application to sell the Property. See Sims v. Thomas, 584 S.W.3d 880,
885 (Tex. App.—Dallas 2019, no pet.) (sustaining Sims’ challenge on restricted
appeal to order authorizing sale of Property). She is not complaining, nor did she
offer any evidence, about any lack of notice regarding the lawsuit or the trial that
resulted in the underlying judgment. Nor could she. See id. at 881–82 (reciting facts
of underlying trial and noting Sims was one of the three witnesses at trial).
Accordingly, we review the remainder of Sims’ evidence to determine
whether she offered evidence on all three elements. See Mabon Ltd., 369 S.W.3d at
812.
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B. Meritorious Defense
Sims urges she offered evidence of a meritorious defense to the underlying
cause of action, particularly that the trial court lacked subject matter jurisdiction over
the lawsuit and that the parties did not have standing to seek partition of the Property.
She offered as evidence a special warranty deed conveying the Property to Sims’
and Thomas’ parents in 1966 and an affidavit of heirship signed by Sims in 2012 in
which she identifies herself, Thomas, and Johnson as her mother’s heirs and further
attests that her father predeceased her mother. Sims argues this evidence—along
with lack of evidence that she, Thomas, or Johnson owned the Property—creates at
least a fact issue as to whether her parents’ estate, including the Property, had been
probated such that Thomas, Johnson, or Sims had any ownership of the Property and
therefore standing to partition it. However, this evidence constitutes no evidence
that the estate had not been probated or otherwise settled upon one or more of the
parties in the years between the decedent’s death in 2010 and the trial on the partition
of the Property in 2017.
C. Fraud, Accident, or Wrongful Act of the Opposing Party or Official
Mistake
Even if the foregoing evidence were sufficient to raise a fact issue regarding
a meritorious defense, Sims failed to offer evidence to raise a fact issue regarding
fraud, accident, or wrongful act of the opposing party or official mistake. She
offered the underlying trial transcript as evidence that Thomas never introduced the
“existing deed into evidence or called a disinterested witness to determine the heirs
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of both Lawrence and Juanita Sims.” However, we construe that argument to be a
challenge to the sufficiency of the evidence and the argument that Thomas offered
or prevailed with insufficient evidence does not raise a fact issue regarding whether
the judgment in the underlying lawsuit was the product of any fraud, accident, or
wrongful act by an opposing party or official mistake so as to subject it to attack by
bill of review.
We overrule Sims’ first issue.
II. Trial Court Did Not Err By Overruling Sims’ Objections to Thomas’
Motion
In her second issue, Sims challenges the trial court’s failure to rule on her
objections to Thomas’ no-evidence motion for summary judgment. In her response
to Thomas’ motion, Sims raised the following objections: (1) Thomas’ motion was
filed before the end of the discovery period; (2) Sims amended her petition after
Thomas’ motion was filed, and Thomas’ motion does not address those
amendments; (3) Thomas’ motion was conclusory; and (4) Thomas’ motion is an
improper, global challenge to Sims’ petition instead of proper special exceptions.
Sims filed her original petition for bill of review on November 3, 2020, along
with discovery requests pursuant to Texas Rule of Civil Procedure 190.3. The
discovery period began when the first initial disclosures were due through the earlier
of 30 days before the date set for trial or nine months after the first initial disclosures
were due. See TEX. R. CIV. P. 190.3(b). Thomas filed her answer on November 11,
2020, such that her initial disclosures were due on December 11, 2020. See id.
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194.2(a). The record reflects the case was set for trial on July 26, 2021. Thirty days
before the trial date would have been June 26, 2021, and nine months after the first
initial disclosures were due would have been September 11, 2021. Thus, the
discovery period ended June 26, 2021. Thomas filed her no-evidence motion for
summary judgment on March 18, 2021.
The rules of civil procedure provide that “after adequate time for discovery,”
a party may move for summary judgment. See TEX. R. CIV. P. 166a(i) (emphasis
added). The rule’s use of “adequate” rather than “ended” or “exhausted” is not
accidental. See In re Silver, 540 S.W.3d 530, 538 (Tex. 2018) (when interpreting
rule, courts presume every word was used with a purpose in mind). This Court has
thus refused to read into the rule a bright-line requirement that the discovery period
be completed before a no-evidence motion for summary judgment can be filed. See
Dobrushkin v. Davenport Meadows, LP, No. 05-12-01285-CV, 2013 WL 5948023,
at *1 (Tex. App.—Dallas Nov. 5, 2013, no pet.) (mem. op.) (citing Dishner v. Huitt–
Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.—Dallas 2006, no pet.)). We have
stressed, instead, that whether a nonmovant has had adequate time for discovery
under the rules of civil procedure is case specific. See id. (citing Rest. Teams Int’l.,
Inc. v. MG Secs. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas 2002, no pet.)).
Although Sims objected to the timing of Thomas’ motion in her response, she
did not file any affidavit explaining the need for further discovery or a verified
motion for continuance. See, e.g., id. (appellant failed to file affidavit explaining
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need for further discovery for verified motion for continuance). Accordingly, she
did not preserve her complaint that the no-evidence summary judgment was
premature. See id.Sims also objected that Thomas’ motion did not address the amendments Sims
made to her petition, which she urged in her response in the trial court provided
evidence of every challenged element of Sims’ petition for bill of review.4 The
record reflects Sims amended her petition after Thomas filed her no-evidence motion
for summary judgment, but the record does not reflect that Sims attached to her
amended petition any evidence. And, in order to defeat Thomas’ motion, Sims must
have produced summary judgment evidence raising a genuine issue of material fact.
See TEX. R. CIV. P. 166a(i).
We construe Sims’ third and fourth objections to Thomas’ motion to challenge
the sufficiency of the motion. In her response, Sims urged Thomas’ motion did not
challenge specific elements of Sims’ cause of action and that it failed to identify a
particular defect in Sims’ pleadings. Indeed, a no-evidence motion that only
generally challenges the sufficiency of the nonmovant’s case and fails to state the
specific elements that the movant contends lack supporting evidence is
fundamentally defective and cannot support summary judgment as a matter of law.
See De La Cruz v. Kailer, 526 S.W.3d 588, 593 (Tex. App.—Dallas 2017, pet.
4
Sims does not argue on appeal, nor did she argument to the trial court, that her amended petition raised
any new claims not asserted in her original petition. But, even had she made such an argument, the no-
evidence motion was sufficiently broad to address all Sims’ claims in her amended petition.
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denied) (citing Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas
2013, pet. denied) (en banc)).
In her motion, Thomas set forth the elements necessary to prevail on a bill of
review:
1. A failure to file a motion for new trial or a failure to advance an
appeal,
2. caused by the fraud, accident or wrongful act of the opposing party
or by an official mistake,
3. unmixed with any fault or negligence of their own; and,
4. [a] meritorious ground of appeal (prima facie proof only).5
She then asserted Sims had “presented no evidence in support of an official mistake
or act of fraud, accident or wrongful act of the opposing party, or Plaintiff was not
at fault, or a meritorious ground of appeal.” Thus, Thomas’ motion challenged
sufficiency of the evidence of the last three elements necessary to prevail on a bill
of review. We conclude Thomas’ motion was sufficient as a matter of law to give
Sims notice of which elements Thomas contended Sims lacked supporting evidence
to support. Compare Kailer, 526 S.W.3d at 594 (holding motion sufficient where it
set out elements of claim and alleged nonmovant “cannot provide sufficient evidence
to sustain each and every element”) with Alfaro, 418 S.W.3d at 284–85 (holding
motion insufficient where it listed elements of claim and alleged nonmovants had no
evidence to support “one or more” of elements).
5
By asserting a lack of prima facie evidence of meritorious appeal, we presume Thomas intended to
allege Sims lacked evidence of any meritorious defense. See Mabon Ltd., 369 S.W.3d at 812.
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III. Trial Court Did Not Err By Denying Sims’ Motion for Default
Judgment against Johnson
In her third and fourth issues, Sims argues the trial court erred by sustaining
Thomas’ objection to Sims’ motion for default judgment against Johnson and by
denying Sims’ motion for entry of default judgment against Johnson. Sims urges
both were erroneous because Johnson was served but did not answer.
As noted above, Sims requested the trial court enter default judgment against
Johnson after she failed to file an answer nearly two months after Sims filed her
petition. After the trial court granted her motion for summary judgment, Thomas
filed her objection to entry of default judgment against Johnson, urging that, since
the trial court had found no evidence to support Sims’ claims against Thomas, no
evidence could support her claims against Johnson.
We may consider the trial court’s denial of a motion for default judgment
when, as here, the denial is challenged in an appeal from a final judgment or order.
See Crown Asset Mgmt., L.L.C. v. Loring, 294 S.W.3d 841, 843 (Tex. App.—Dallas
2009, pet. denied). We review the denial of a default judgment for abuse of
discretion. Harris N.A. v. Obregon, No. 05-07-01647-CV, 2009 WL 4263815, at *2
(Tex. App.—Dallas Dec. 1, 2009, no pet.) (mem. op.).
With respect to factual matters, a trial court abuses its discretion if the record
shows it reasonably could have reached only one decision and it failed to do so. Id.However, because a trial court has no discretion in determining what the law is or
applying the law to the facts, a clear failure by the trial court to analyze or apply the
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law correctly will constitute an abuse of discretion. Id. (citing Moroch v. Collins,
174 S.W.3d 849, 864-65 (Tex. App.—Dallas 2005, pet. denied) (citations omitted)).
Another way of stating the test is whether the act was arbitrary or unreasonable. Id.(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)).
Here, the trial court had already granted summary judgment against Sims on
her claims against Thomas, which are indistinguishable from Sims’ claims against
Johnson. Thus, denying Sims’ motion for default judgment was neither arbitrary
nor unreasonable. Accordingly, we overrule Sims’ fourth issue.
As for her third issue challenging the implied ruling on Thomas’ objection,
the trial court’s order denying default judgment did not include any findings in
support of the order or any ruling on Thomas’ objection. But, even if the order
denying Sims’ motion for entry of default judgment and dismissing her bill of review
could be construed to sustain Thomas’ objection, we cannot conclude such a ruling
was in error or resulted in the rendition of an improper judgment. See TEX. R. APP.
P. 44.1(a)(1). Accordingly, we overrule Sims’ third issue.
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CONCLUSION
We affirm the trial court’s order denying entry of default judgment against
Johnson and judgment granting Thomas’ no-evidence for summary judgment and
dismissing Sims’ petition for bill of review against Thomas and Johnson.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
210814F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SANDRA L. SIMS, Appellant On Appeal from the 160th Judicial
District Court, Dallas County, Texas
No. 05-21-00814-CV V. Trial Court Cause No. DC-20-16441.
Opinion delivered by Justice
TINA THOMAS AND SIMONE Schenck. Justices Reichek and
JOHNSON, Appellees Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees TINA THOMAS AND SIMONE
JOHNSON recover their costs of this appeal and the full amount of the trial court’s
judgment from appellant SANDRA L. SIMS and from Rickie Hamilton, as surety
located at 2917 Lenway Street Dallas, Texas 75215, and Jason O’Neal, as surety
located at 3552 Keyridge Drive, Dallas, Texas 75241, on appellant’s supersedeas
bond.
Judgment entered this 29th day of November 2022.
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