in Re Pollo Gordo, Inc. D/B/A Pollo Zapata and Telemedia, Inc., Relator

OPINION
No. 04-11-00715-CV
IN RE POLLO GORDO, INC.
D/B/A POLLO ZAPATA and TELEMEDIA, INC.
Original Mandamus Proceeding 1
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: January 11, 2012
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
On September 28, 2011, relators Pollo Gordo, Inc. d/b/a Pollo Zapata and Telemedia, Inc.
(“relators”) filed a petition for writ of mandamus, complaining the trial court abused its
discretion in granting real party in interest Isabel Ancira’s (“Ancira”) bill of review. We agree
and conditionally grant the petition for writ of mandamus.
BACKGROUND
This proceeding arises out of a bill of review granted to Ancira. The underlying suit
involves a restaurant named Pollo Gordo in Zapata, Texas. The majority owner and President of
Pollo Gordo is Arn Ramirez, and Gilberto A. Rodriguez was hired as the director of the
1
This proceeding arises out of Cause No. 7,300, styled Isabel Ancira v. Pollo Gordo, d/b/a Pollo Zapata, and
Telemedia, Inc., pending in the 49th Judicial District Court, Zapata County, Texas, the Honorable Joe Lopez
presiding.
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restaurant. Pollo Gordo opened in 2004. In the summer of 2005, relators allege it was
discovered that Rodriguez had failed to deposit approximately $5,700.00 of the restaurant’s
money in the bank, and another $20,544.13 in company funds was later discovered to be
missing. Furthermore, relators contend Rodriguez entered into a joint venture on an “eightliner
casino” with Ancira, which had Rodriguez overseeing the casino instead of attending the
restaurant. Pollo Gordo was subsequently closed, but before the restaurant equipment could be
removed, relators allege Rodriguez and Ancira misappropriated the equipment.
In October of 2005, relators filed suit against Ancira for theft, conversion, and civil
conspiracy, and against Rodriguez for theft, conversion, fraud, breach of fiduciary duty, and civil
conspiracy. Both Rodriguez and Ancira filed an answer by and through their attorney Andres A.
Ramos in November of 2005. Beginning in June of 2007, Ancira and Rodriguez’ attorney
Ramos was served with requests for disclosure, interrogatories, requests for production, requests
for admissions, a rule 11 agreement, and a motion to compel; none of which were ever responded
to. On September 9, 2008, relators filed a traditional motion for summary judgment based on
deemed admissions, which Ancira and Rodriguez again failed to respond to. On December 8,
2008, the trial court signed an order granting relators’ traditional motion for summary judgment,
and entered a final judgment of $44,234.57 in damages and $4,750.00 in attorneys’ fees against
Rodriguez and Ancira, jointly and severally.
On January 13, 2010, Ancira filed a bill of review, seeking to set aside the judgment
against her. The bill of review contends Ancira’s attorney Ramos failed to inform her of the
discovery propounded, the summary judgment, or the judgment entered against her. Ancira
further asserts she did not become aware of the judgment until after June 15, 2009 when she was
served with a writ of execution. She relies on an affidavit from Ramos, in which he
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acknowledges that although he was retained to represent Ancira, he failed to provide her with
notice and completely neglected the lawsuit due to domestic problems he was having. However,
at the hearing on the bill of review, Ancira claimed the basis of the bill of review was due to
fraud on the part of Ramirez. Specifically, she claimed Ramirez told a third party, Juan Ochoa,
that he would drop the suit, which was then communicated to Rodriguez, Ancira’s co-defendant,
who then told her. She argued she relied on the third party statement that the suit had been
dismissed. After conducting a hearing on the bill of review on June 9, 2010, the trial court
signed an order granting the bill of review on May 16, 2011. This petition for writ of mandamus
ensued.
ANALYSIS
This court, along with other courts, has previously held mandamus relief is available
when a trial court erroneously grants a bill of review. See In re Spiller, 303 S.W.3d 426, 431
(Tex. App.—Waco 2010, orig. proceeding); In re Off. of Attorney Gen., 276 S.W.3d 611, 621
(Tex. App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]); In re Attorney Gen. of
Tex., No. 04-00-00672-CV, 2001 WL 8547, at *1 (Tex. App.—San Antonio Jan. 3, 2001, orig.
proceeding); In re Nat’l Unity Ins. Co., 963 S.W.2d 876, 877 (Tex. App.—San Antonio 1998,
orig. proceeding). We review the trial court’s ruling for an abuse of discretion. In re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). “A trial court has no ‘discretion’ in
determining what the law is or applying the law to the facts,” and “a clear failure by the trial
court to analyze or apply the law correctly will constitute an abuse of discretion.” Walker, 827
S.W.2d at 840.
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In light of the overriding public interest in the finality of judgments, a bill of review may
be obtained only on narrow grounds. See Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d
407, 408 (Tex. 1987). In order to succeed in setting aside the final judgment against her, Ancira
had the burden to establish: (1) she has a meritorious defense to the cause of action alleged to
support the judgment; (2) which she was prevented from making by the fraud, accident or
wrongful act of the opposite party; (3) unmixed with any fault or negligence of her own. See
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
In Ancira’s bill of review, she asserted she failed to respond to the suit due to accident
and/or official mistake. Specifically, she relied on the affidavit of her former attorney Ramos, to
the extent that he acknowledged that he had neglected the lawsuit. However, “allegations of
fraud or negligence on the part of a party’s attorney are insufficient to support a bill of review.”
Id. (citing Transworld, 722 S.W.2d at 408); In re Nat’l Unity Ins. Co., 963 S.W.2d 876, 879
(Tex. App.—San Antonio 1998, orig. proceeding) (holding that an error in the judgment not
timely discovered by the party’s attorney was negligence attributable to the attorney, and such
attorney negligence thwarted the party’s success in a bill of review). Therefore, a bill of review
in which a petition alleges that the wrongful act of their attorney caused an adverse judgment is
not excused from the necessity of pleading and proving their opponent’s extrinsic fraud. King,
118 S.W.3d at 751 (citing Transworld, 722 S.W.2d at 408).
At the hearing on the bill of review, in an effort to avoid relying solely on her attorney’s
negligence as she had in the bill of review petition, Ancira argued that Ramirez engaged in
extrinsic fraud that led her to believe the suit had been dismissed. However, Ancira never plead
this defense in her bill of review. Id. Furthermore, the record indicates there is no evidence the
alleged fraud was ever reported to the attorney and thus cannot serve as an excuse for the
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attorney’s failure to respond. As established in attorney Ramos’ affidavit, his failure to respond
was due to domestic problems he was having. 2 Ancira’s failure to respond to the suit was solely
the result of the conduct of her attorney and such negligence thwarts Ancira’s success in the bill
of review. See Nat’l, 963 S.W.2d at 879. Therefore, we conclude Ancira failed to establish she
was prevented from asserting her defense by the fraud, accident or wrongful act of Ramirez. See
King, 118 S.W.3d at 751. Based on the foregoing, we conclude Ancira failed to establish a
proper basis for relief through a bill of review.
CONCLUSION
Accordingly, we conclude the trial court abused its discretion in granting the bill of
review. Therefore, we conditionally grant the petition for writ of mandamus. The trial court is
ordered to withdraw its May 16, 2011 order granting the bill of review. The writ will issue only
if the trial court fails to comply within fourteen days.
Phylis J. Speedlin, Justice
2
Ancira contends that any notice acquired by Ancira’s attorney is not imputed to her because the attorney-client
relationship had been terminated. However, there is no evidence in the record to suggest that Ancira had any notice
that the attorney-client relationship had been terminated.
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