in the Matter of the Marriage of Valerie v. Manley and Rex v. Manley

NO. 07-05-0139-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 16, 2005

______________________________

IN THE MATTER OF THE MARRIAGE OF VALARIE V. MANLEY AND REX V. MANLEY _________________________________

FROM THE 222^ND DISTRICT COURT OF DEAF SMITH COUNTY;

NO. DR-04E-086; HONORABLE ROLAND SAUL, JUDGE _______________________________

Before QUINN, C.J, and REAVIS and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Valarie V. Manley (Valarie), appeals from the trial court's order granting appellee's, Rex. V. Manley (Rex), Motion for No Evidence Summary Judgment and denying Valarie's Petition for Bill of Review. We reverse and remand.

BACKGROUND

Rex filed for divorce from Valarie. Although Valarie was properly served with citation regarding this divorce action, she did not file an answer or otherwise participate in the divorce proceedings. As a result, Rex obtained a default divorce on September 25, 2003.

After discovering that Rex had obtained a divorce by default, Valarie filed a petition for bill of review in May of 2004. Prior to trial on Valarie's bill of review, Rex filed a motion for no evidence summary judgment contending that Valarie could not produce evidence that her failure to present her meritorious defense to the divorce was unmixed with her own negligence. Valarie filed a response to the motion, which included affidavits from Valarie and her sister. After hearing arguments, the trial court granted Rex's motion for summary judgment and denied Valarie's request for bill of review.

By one issue, Valarie appeals. Valarie contends that the trial court erred in finding there was no evidence that any fraud, accident, or wrongful act on the part of Rex was unmixed with any negligence committed by Valarie.

STANDARD OF REVIEW

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. See Aguirre v. South Texas Blood & Tissue Center, 2 S.W.3d 454, 456 (Tex.App.-San Antonio 1999, pet. denied); Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.-Amarillo 1999, pet. denied). When reviewing a no evidence summary judgment, we must determine whether the non-movant produced any evidence of probative force to raise a fact issue on the element challenged by the movant. See Roth, 994 S.W.2d at 195. In deciding whether there is a material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984). Every reasonable inference from the evidence must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact as to the element on which the motion is based. Roth, 994 S.W.2d at 195.

BILL OF REVIEW

A bill of review is an equitable action brought by a party to a previous suit seeking to set aside a judgment which is no longer appealable or subject to a motion for new trial. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). To successfully challenge a judgment by bill of review, the petitioner must prove: (1) a meritorious defense to the cause of action, (2) that petitioner was prevented from making the defense by the fraud, accident, or wrongful act of the opposite party, and (3) that the failure to make the defense was unmixed with any fault or negligence of the petitioner. Id. The second requirement may also be satisfied by reliance on erroneous official information given by a court official which prevented the bill of review petitioner from making the defense. See Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex. 1979).

ANALYSIS

By his motion for summary judgment, Rex contended that Valarie could not produce evidence that her negligence did not contribute to her inability to present her defense, the third element necessary for a bill of review. Taking Valarie's summary judgment proof as true, as we must, see Montgomery, 669 S.W.2d at 311, her affidavits ⁽¹⁾ present two explanations for her failure to make her defense: (1) Rex repeatedly represented to Valarie that he had or was going to dismiss the divorce, and (2) a representative of the "County Clerk[']s office" informed Valarie that no pending divorce action between Rex and Valarie could be located. We must determine whether Valarie was negligent in failing to file an answer in the divorce in reliance upon the representations of Rex and the clerk. ⁽²⁾

According to Valarie's affidavit, Rex asked Valarie, within a week of her receipt of the divorce petition, if she would agree with his dismissal of the divorce proceeding. Valarie agreed to the dismissal. In March, Valarie asked Rex "several times" if he had dismissed the divorce and he informed her that he had contacted his attorney to have the action dismissed. Valarie attempted to contact Rex's attorney to confirm the dismissal of the divorce, but was unable to obtain this information. Valarie had her sister contact Rex to determine the status of the divorce and Rex told Valarie's sister that the divorce had been dismissed. Valarie also contacted a "County Clerk[']s office" and was informed that no pending divorce action could be located. ⁽³⁾ Taking the evidence presented by Valarie as true, we conclude that Valarie raises genuine issues of material fact as to whether she acted without negligence in relying on the representations of Rex and as to whether she exercised reasonable diligence in determining that she did not need to file an answer.

Rex cites Gone v. Gone, 993 S.W.2d 845 (Tex.App.-Houston [14^th Dist.] 1999, no pet.), and Ramos v. Ramos, No. 01-98-00913-CV, 2000 Tex.App. LEXIS 8042 (Tex.App.-Houston [1^st Dist.] 2000, pet. denied), for the proposition that, after proper service is had upon a party to a lawsuit, reliance upon erroneous representations of dismissal by the opposing party constitutes negligence as a matter of law. However, both of these cases involved review of the actual bill of review proceedings, in which the burden of proof is on the petitioner, rather than summary judgments, where the burden is on the movant.

In Gone, the trial court found that the bill of review respondent did not represent to the bill of review petitioner that the divorce had been dismissed and, in the absence of any other explanation, further found that the bill of review petitioner had provided no evidence of why he failed to file an answer to the divorce. Gone, 993 S.W.2d at 847. By contrast, the trial court made no such finding in the present case. Further, because we must accept

Valarie's affidavit evidence as true, we must conclude that Rex did represent to Valarie that he had dismissed the divorce. As a result, we conclude that Gone is inapposite.

In Ramos, an unpublished opinion, the bill of review petitioner relied upon the representation of the respondent's attorney that the respondent intended to dismiss the divorce and that, if she did not, the attorney would notify the petitioner of any future court settings. Ramos, 2000 Tex.App. LEXIS 8042, at *11. Citing Gone, the Ramos court concluded that the bill of review petitioner's "lack of diligence in failing to file an answer after receiving notice of the divorce action . . . was negligence that contributed to the entry of the default judgment against him." Id. at *12. However, we fail to see how Gone supports the Ramos court's conclusion. Further, it appears that the Ramos petitioner made no effort to confirm the dismissal of the divorce. By contrast, Valarie's summary judgment evidence raises a material fact issue as to whether she exercised reasonable diligence in attempting to confirm that Rex had dismissed the divorce.

Thus, we conclude that neither the Gone or Ramos opinions apply to our review of the summary judgment rendered in this case. Further, we conclude that Rex has failed to show that Valarie's failure to file an answer, after proper service, based on erroneous representations of dismissal made by him constitutes negligence as a matter of law. CONCLUSION

We conclude that Valarie's summary judgment evidence raises a genuine issue of material fact as to whether her reliance upon Rex's representations that he had dismissed the divorce was non-negligent. Therefore, we reverse the Order Granting Respondent's Motion for No Evidence Summary Judgment and remand this cause to the trial court for further proceedings.

Mackey K. Hancock

Justice

1. We note that Rex objected, at the summary judgment hearing, to the affidavits constituting and containing hearsay. The context in which the court stated that "On those grounds, it will be admitted" makes it unclear whether the court was ruling that the affidavit was being admitted excluding those portions which were hearsay, or that the affidavit, as presented, was being accepted as an affidavit, or both. Thus, we are uncertain whether the trial court ruled on Rex's hearsay objection. See Tex. R. App. P. 33.1(a)(2)(A).

Further, both at the hearing and on appeal, Rex indicates only that the affidavits are "composed of hearsay statements." However, a general objection that an affidavit contains hearsay is insufficient to direct our attention to those portions which are objectionable. See Jensen Constr. Co. v. Dallas County, 920 S.W.2d 761, 769 (Tex.App.-Dallas 1996, writ denied).

2. Because we conclude that Valarie's summary judgment evidence raises a material fact question as to whether she was negligent in relying on Rex's representations that the divorce had been dismissed, we need not address the issue of Valarie's reliance on the representations of the clerk. See Tex. R. App. P. 47.1.

3. We express no opinion as to whether the information received by Valarie from the "County Clerk[']s office" constituted a mistake or error of a functionary of the court in the discharge of their official duties. See Baker, 582 S.W.2d at 407. Rather, we note Valarie's attempt to contact a clerk as relevant to the determination of whether Valarie has raised a genuine fact issue relating to the diligence she exercised in determining whether she needed to file an answer in the divorce.

s's claim challenges the validity of a policy rather than of an instrument, statute, ordinance, contract, or franchise, the Uniform Declaratory Judgment Act does not remove governmental immunity for Ackers's primary claim for declaratory relief and, therefore, it is barred by governmental immunity.

While Ackers's challenge of the constitutionality of the City's policy is not specifically identified in section 37.004(a), we conclude that the failure of the section to specifically list a city's policy as being capable of challenge by declaratory action does not mean that such an action is barred by governmental immunity. First, section 37.003(c) provides that the enumerations in Section 37.004 "do not limit or restrict the exercise of the general powers conferred by this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty." Tex. Civ. Prac. & Rem. Code Ann. § 37.003(c) (Vernon 1997). We conclude that the primary declaration sought by Ackers in the present case will remove uncertainty regarding rights and will resolve the controversy regarding whether the City's policy is valid. Further, because Ackers is not requesting monetary damages, but rather is seeking a declaration that the City's policy is unconstitutional, he does not need an express statutory waiver of governmental immunity to seek declaratory relief. See Tex. Natural Res. Conservation Comm'n, 74 S.W.3d at 855. As a result, we conclude that Ackers's request for a declaration that any policy or procedure of the City that was used to justify any unlawful action taken against Ackers be found to be unconstitutional and declared void as a matter of law falls within the scope of the Uniform Declaratory Judgment Act. However, because this request for declaratory relief does not seek to impose liability on the City, an express statutory waiver of governmental immunity is not required for the trial court's exercise of subject matter jurisdiction.

The City argues that Ackers's Discovery Control Plan allegation that the suit involves a defendant who is likely to be liable in an amount in excess of $50,000 establishes that his claims are actually claims for monetary damages and are, therefore, barred by the doctrine of governmental immunity. However, in his live pleading, Ackers makes a claim that would entitle him to monetary damages. The Texas Constitution permits a party to seek equitable relief in the form of adequate compensation for a governmental taking of their property. See Tex. Const. art. I, sec. 17; City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). Because Ackers's live pleading includes a taking claim, for which monetary damages may be awarded, we do not construe his primary request for declaratory judgment to be a veiled claim for monetary damages.

However, even were we to construe Ackers's primary request for declaratory relief to request monetary damages, the trial court should not have dismissed his case without first giving Ackers an opportunity to amend his pleadings. See Fryman v. Wilbarger Gen. Hosp., 207 S.W.3d 440, 442 (Tex.App.-Amarillo 2006, no pet. h.). The record does not reflect that Ackers was afforded an opportunity to amend his pleadings before the trial court dismissed his case with prejudice. Thus, even if the construction of Ackers's pleading that is advanced by the City were accepted, Ackers could amend his pleading to remove the assertion that the defendant will likely be liable in excess of $50,000 from his identification of the Discovery Control Plan.

Findings of Fact and Conclusions of Law

By his third issue, Ackers contends that the trial court's findings of fact and conclusions of law relate solely to the merits of the suit and, therefore, are immaterial to a determination of whether the trial court has subject matter jurisdiction over Ackers's suit. The trial court made factual findings that the LPD officers involved in this matter "were acting within the scope of their official duties as city police officers during the investigation" and that the actions of the officers were "proper and lawful as a response to keep the peace." The trial court made conclusions of law that the City "is immune from liability" in this case, the City is "immune from liability for the actions of its peace officers" in this case, and Ackers "demonstrated no waiver" of the City's immunity.

Based on the scope of our review of a ruling on a plea to the jurisdiction, we conclude that the trial court's findings of fact are not supported by evidence or Ackers's pleading and relate to the merits of the case rather than to the trial court's authority to hear the case. The scope of our review of a ruling on a plea to the jurisdiction is limited to the claims in the plaintiff's pleadings, taking the facts pled therein as true, to determine whether those facts support the trial court's jurisdiction. Nueces County, 97 S.W.3d at 213. Evidence submitted that is necessary to resolve the issue of jurisdiction must also be considered. Bland Indep. Sch. Dist., 34 S.W.3d at 555. In the present case, no evidence necessary to resolution of the jurisdictional issue was submitted. Thus, our review of the jurisdictional issue is limited to the allegations made in Ackers's live pleading. Nowhere does Ackers allege facts that would support the trial court's factual findings that the LPD officers were acting within the scope of their official duties during the investigation of the present matter. Further, Ackers makes no allegation that the reason that the officers became involved in this matter was because they received a "request to keep the peace." Consequently, we see no support in the record before us for either of the trial court's findings of fact. Further, we note that the trial court's findings go to the merits of Ackers's claims and are, therefore, immaterial to a ruling on a plea to the jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d at 554.

As to the trial court's conclusions of law, each is subject to de novo review by this court. Mayhew, 964 S.W.2d at 928. As addressed in regard to Ackers's first issue, Ackers may bring certain declaratory judgment actions against a governmental entity without express legislative consent or statutory waiver of immunity. Nueces County, 97 S.W.3d at 217-18. Because Ackers pled a claim for declaratory judgment that we construe as not requesting monetary damages, the City is not immune from the suit and the trial court's dismissal was in error. ⁽³⁾

Conclusion

For the foregoing reasons, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

Mackey K. Hancock

Justice

1. In review of a trial court's ruling on a plea to the jurisdiction, we must take all factual allegations pled as true, unless jurisdictionally relevant evidence was offered that negates jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex.App.-Corpus Christi 2002, no pet.). All facts recited in this opinion are from Ackers's live pleading unless otherwise noted.

2. We note that Texas Penal Code section 21.15 makes it an offense to photograph another without the person's consent and with intent to arouse or gratify the sexual desire of any person. See Tex. Pen. Code Ann. § 21.15(b) (Vernon Supp. 2007). The City's policy, as alleged by Ackers, removes the mens rea element of this offense. Thus, Ackers's pleading is not challenging the validity of section 21.15 nor is the City's policy authorized by this section.

3. We note that the trial court's conclusions of law specifically reference the City's immunity from liability. For a declaratory judgment action to avoid the bar of governmental immunity, it may not seek monetary damages. Tex. Natural Res. Conservation Comm'n, 74 S.W.3d at 855; Nueces County, 97 S.W.3d at 218. As a result, our analysis of Ackers's primary declaratory judgment claim establishes only that the City is not immune from suit and does not negate the court's conclusion that the City is immune from liability. However, Ackers's claim for adequate compensation for a governmental taking does implicate the court's conclusions.