Jon McPike and Laurie Beth McPike v. Montgomery Capital Partners I, LP

AFFIRM; Opinion Filed June 9, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00610-CV
JON MCPIKE AND LAURIE BETH MCPIKE, Appellants
V.
MONTGOMERY CAPITAL PARTNERS I, LP, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-05176-2020
MEMORANDUM OPINION
Before Justices Schenck, Molberg, and Pedersen, III
Opinion by Justice Schenck
In this bill of review proceeding, Jon and Laurie Beth McPike appeal the trial
court’s final order granting summary judgment in favor of appellee Montgomery
Capital Partners I, LP (“MCP”). In two issues, the McPikes seek to reverse the trial
court’s grant of summary judgment and obtain a remand of the case for further
proceedings. We affirm. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On June 9, 2020, MCP obtained a default judgment against the McPikes. On
July 17, the McPikes filed a motion to extend post-judgment deadlines and a motion
for new trial, asserting they were never served with process in this case and received
notice of the default judgment for the first time on July 14. On July 30, the McPikes
filed an amended motion to extend post-judgment deadlines and a motion for leave
for discovery in support of a motion for new trial.1 However, the trial court did not
rule on either motion, and the McPikes did not file any appeal of the default
judgment.
In October 2020, the McPikes filed a petition for bill of review, seeking to set
aside the default judgment because they were not served with process and,
alternatively, they met the three elements to invoke a bill of review.2 MCP answered
and, in March 2021, moved for summary judgment, arguing the McPikes offered
insufficient evidence to establish their claims of lack of service and had failed to
exercise due diligence in exhausting all legal remedies before filing a bill of review.
The McPikes responded, and MCP replied in support of their motion. In June 2021,
the trial court signed an order granting summary judgment in favor of MCP and
dismissing the McPikes’ petition with prejudice. This appeal followed.
1
The Texas Rules of Civil Procedure provide for extension of post-judgment deadlines when, as
claimed here by the McPikes, a party does not receive notice of judgment within twenty days of its signing.
See TEX. R. CIV. P. 306a. In order for a party to establish entitlement to extended periods to file an appeal
or motion for new trial, among other things, a party who did not receive notice of an adverse judgment
within twenty days of its signing must prove in the trial court, on sworn motion and notice, the date on
which the party or his attorney first received notice of the judgment or its signing. See TEX. R. CIV. P.
306a(5).
2
Traditionally, a bill of review requires proof of three elements: (1) a meritorious defense, (2) that was
not asserted due to fraud, accident, or wrongful act of an opponent or official mistake, (3) unmixed with
any fault or negligence by the movant. See Ross v. Nat’l Ctr. for Emp’t of Disabled, 197 S.W.3d 795, 797
(Tex. 2006).
–2–
DISCUSSION
In their second issue, the McPikes urge that they exhausted all legal remedies
before filing their petition for bill of review, such that the trial court erred in granting
summary judgment in favor of MCP.3
In their motion for summary judgment, MCP argued that, although the
McPikes had filed a motion to extend post-judgment deadlines pursuant to rule 306a
and a motion for new trial after the trial court signed default judgment, they failed
to obtain rulings on their requests to extend the deadlines and for new trial. MCP
further argues the McPikes abandoned their motion for new trial by failing to include
it in their amended motion to extend post-judgment deadlines.
The McPikes argue on appeal that they exhausted their legal remedies by
filing their motion for extension of post-judgment deadlines and by scheduling a
hearing on their motion. According to the McPikes, at that hearing, the trial court
struck their evidence supporting their motion, and the motion was later overruled by
operation of law, thus precluding them from filing a motion for new trial. The
transcript of that hearing is not in the record before this Court. In a separate
3
In their first issue, the McPikes argue the summary judgment record establishes there is a genuine
dispute of material facts such that the trial court’s grant of summary judgment was error. In its motion for
summary judgment, MCP argued it conclusively negated the McPikes’ claimed lack of service with
evidence from the process server who served each of the McPikes and that the McPikes cannot controvert
those facts. However, if the McPikes failed to exhaust all available legal remedies to set aside the default
judgment after they became aware of the judgment, they are not entitled to relief by bill of review. See
Gunnerman v. Basic Cap. Mgmt., Inc., 106 S.W.3d 821, 826 (Tex. App.—Dallas 2003, pet. denied) (citing
Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam). Accordingly, we review the
McPikes’ second issue first.
–3–
memorandum, the trial judge listed findings in support of the grant of summary
judgment, including that the McPikes failed to pursue legal remedies in at least three
instances:
(1) the failure to file timely motion for new trial;
(2) the failure to follow up with the judge to have an order entered on
the TRCP 306a(4) request for [extension of post-judgment
deadlines] . . . ; and
(3) the failure to either appeal the implied denial of the TRCP 306a(4)
request or seek a mandamus for failing to timely rule on the motion.
While the parties debate whether the McPikes abandoned their motion for new
trial by later filing an amended motion and whether the McPikes failed to secure a
ruling on their motion to extend post-judgment deadlines, we need not resolve those
disputes because we conclude they failed to timely file a motion for new trial and
further failed to appeal the implied denial of that ruling or seek a writ of mandamus
ordering the trial court to rule on their motion. See TEX. R. CIV. P. 329b. Therefore,
we hold that the trial court did not err in concluding that the McPikes failed to
exhaust their legal remedies before filing their petition for bill of review. See
Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998) (holding person must exercise
due diligence to avail himself of all adequate legal remedies against former judgment
before filing bill of review).4
4
Cf. Gunnerman, 106 S.W.3d at 826 (reversing summary judgment where issue of fact existed
regarding whether bill of review petitioners had received notice of judgment in time to file motion pursuant
to rule 306a(4) of Texas Rules of Procedure and motion for new trial); see, e.g., French v. Brown, 424
S.W.2d 893, 895 (Tex. 1967) (holding that party was not entitled to bill of review with respect to summary
–4–
Accordingly, we overrule the McPikes’ second issue. Therefore, we need not
address the McPikes’ first issue regarding whether the record contains a disputed
material fact regarding their claimed lack of service in the default judgment
proceedings. See TEX. R. APP. P. 47.1; see also Gunnerman v. Basic Cap. Mgmt.,
Inc., 106 S.W.3d 821, 826 (Tex. App.—Dallas 2003, pet. denied).
CONCLUSION
We affirm the trial court’s judgment.
/David J. Schenck//
210610f.p05 DAVID J. SCHENCK
JUSTICE
judgment when he failed to file notice of appeal although he did file motion for new trial which was
overruled by operation of law); Simmons v. Slalom Shop, LLC, No. 07-12-0169-CV, 2012 WL 5305791, at
*1 (Tex. App.—Amarillo Oct. 29, 2012, no pet.) (mem. op.) (same); Blakely v. Mortg. Elec. Registration
Sys., No. 10–09–00341–CV, 2010 WL 2523428 (Tex. App.—Waco June 23, 2010, no pet.) (mem. op.)
(holding that failure to pursue remedy by appeal even if document could be construed as motion for new
trial precludes entitlement to bill of review).
–5–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JON MCPIKE AND LAURIE BETH On Appeal from the 401st Judicial
MCPIKE, Appellants District Court, Collin County, Texas
Trial Court Cause No. 401-05176-
No. 05-21-00610-CV V. 2020.
Opinion delivered by Justice
MONTGOMERY CAPITAL Schenck. Justices Molberg and
PARTNERS I, LP, Appellee Pedersen, III participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee MONTGOMERY CAPITAL PARTNERS I,
LP recover its costs of this appeal from appellant JON MCPIKE AND LAURIE
BETH MCPIKE.
Judgment entered this 9th day of June 2022.
–6–