John C. Osborne and Jesus Roman-Perez v. Adolfo 'Al' Alvarez

NUMBER 13-19-00044-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESUS ROMAN-PEREZ, Appellant,
v.
ADOLFO ALVAREZ, Appellee.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
NUMBER 13-19-00067-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN C. OSBORNE AND
JESUS ROMAN-PEREZ, Appellants,
v.
ADOLFO ‘AL’ ALVAREZ,
Appellee.
On appeal from the County Court at Law No. 8
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Benavides
Appellants John Osborne and Jesus Roman-Perez challenge the judgments
rendered against them in favor of appellee Adolfo “Al” Alvarez.
2
In appellate cause number 13-19-00044-CV,1 Roman-Perez2 argues that the trial
court erred by granting summary judgment (1) because there was no justiciable
controversy between the parties and a declaratory judgment was not proper and (2)
because there was a material fact issue regarding which of the two judgments (one from
Harris County and one from Hidalgo County) was valid.
In appellate cause number 13-19-00067-CV,3 Osborne and Roman-Perez raise
eight issues: (1–2) whether their bill of review states a cause of action that has a basis in
law or fact; (3) whether their bill of review has a basis in law if the allegations entitled them
to relief; (4) whether the trial court erred because Alvarez waived dominant jurisdiction in
Hidalgo County; (5) whether the trial court erred by granting Alvarez’s motion to dismiss
because the Harris County judgment superseded the Hidalgo County judgment; (6)
whether the Harris County judgment legally disposed of all claims between the parties;
(7) whether the trial court lacked jurisdiction to enter a default judgment because of the
Harris County judgment disposed of all claims between the parties; and (8) whether the
trial court erred when it held there was no showing that the bill of review had no basis in
fact. We reverse and remand in appellate cause number 13-19-00067-CV. We reverse
and render in appellate cause number 13-19-00044-CV.
I. BACKGROUND
A. Background Facts
1 Appellate cause number 13-19-00044-CV relates to trial court case number C-3370-18-A out of
the 92nd District Court in Hidalgo County.
2 Roman-Perez is the appellant in appellate cause number 13-19-00044-CV. Both Osborne and
Roman-Perez are the appellants in appellate cause number 13-19-00067-CV.
3 Appellate cause number 13-19-00067-CV relates to trial court case number CL-18-6733-H out of
County Court at Law Number Eight in Hidalgo County.
3
The multiple cases between the parties stem from an employment agreement gone
wrong. Roman-Perez was indicted on federal drug trafficking charges and retained
Alvarez, an attorney, to defend him. According to their pleadings and brief, Roman-Perez
agreed to pay Alvarez a $15,000 retainer and instructed Alvarez to contact Roman-
Perez’s wife to collect payment of the retainer. Roman-Perez’s wife put Alvarez in touch
with a third-party agent who would pay the retainer. When Alvarez contacted the agent,
Alvarez increased the amount of the retainer to $75,000, which was paid.
Alvarez represented Roman-Perez in the initial federal appearance hearing and
conducted some discovery before Roman-Perez learned of the increased retainer amount
and terminated his employment. Roman-Perez then hired Osborne to represent him and
to recover the unused portion of the $75,000 retainer. On January 8, 2008, Osborne sent
Alvarez a letter requesting an accounting of the $75,000 retainer and a refund of any
unused money stating in accordance with the Texas Disciplinary Rules of Professional
Conduct. Osborne asked for the accounting and refund within one week, or he would
advise Roman-Perez to file a grievance with the State Bar of Texas.
B. Lawsuits Filed
1. Hidalgo County Lawsuit
Instead of providing the requested accounting and refund, Alvarez filed a lawsuit
in Hidalgo County against Osborne and Roman-Perez on January 23, 2008 (Hidalgo
County lawsuit).4 Alvarez alleged that Osborne and Roman-Perez’s conduct “constitutes
conspiracy, breach of contract, and tortious interference with a contract” and requested
4 The Hidalgo County lawsuit refers to case number CL-08-0150-D in County Court at Law No. 4
of Hidalgo County.
4
damages and attorney’s fees. Although Alvarez filed the lawsuit in January 2008, he did
not serve Osborne or Roman-Perez with the lawsuit at that time.
On August 8, 2008, following service of an additional lawsuit filed in Harris County
by Roman-Perez, Alvarez finally served Osborne and Roman-Perez with the Hidalgo
County lawsuit. Following service, on September 19, 2008, Osborne filed a motion to
transfer venue in the Hidalgo County lawsuit alleging that Alvarez “engaged in forum
shopping” and Hidalgo County was not the proper venue because the facts surrounding
the case occurred in Harris County. Osborne’s motion to transfer venue was denied by
the Hidalgo County Court trial court on November 19, 2008.
The Hidalgo County trial court granted an interlocutory default judgment against
Roman-Perez for $75,000 on October 27, 2008 based on “Plaintiff’s motion for default
judgment.” Alvarez then filed a “First Amended Plaintiff’s Original Petition” against
Osborne and Roman-Perez on November 19, 2008, which appeared to raise the same
causes of action.
On January 10. 2011, Alvarez requested and was granted a temporary injunction
by the Hidalgo County court in response to a judgment issued in Harris County. On
November 26, 2014, after Roman-Perez did not appear, Alvarez obtained a final judgment
against Osborne and Roman-Perez in the Hidalgo County court for $475,000.
2. Harris County Lawsuit
In the meantime, on June 19, 2008, Roman-Perez filed suit against Alvarez in
Harris County (Harris County lawsuit).5 Roman-Perez alleged legal malpractice, common
5 The Harris County lawsuit refers to case number 2008-36981 in the 164th Judicial District Court
in Harris County.
5
law fraud, negligent misrepresentation, breach of contract, conversion, breach of fiduciary
duties, breach of fiduciary duties-fee forfeiture, gross negligence, intentional conduct,
and/or malice, and requested damages and attorney’s fees. Alvarez was promptly served
with the Harris County lawsuit.
On August 8, 2008, Alvarez filed a motion to transfer venue and motion to abate
in the Harris County lawsuit, stating that Hidalgo County was the proper venue and the
Hidalgo County lawsuit involved the same facts and dispute. Alvarez did not request a
hearing for these motions, never filed an answer, and never filed a special appearance.
On March 3, 2009, Roman-Perez filed a motion for default judgment in the Harris
County lawsuit and Alvarez failed to answer. On March 3, 2010, the Harris County trial
court granted a default judgment on all of Roman-Perez’s causes of action and ordered
that Roman-Perez recover $330,575 for actual and exemplary damages, attorney’s fees,
court costs, and pre and post judgment interest. The default judgment also stated that “all
relief not expressly granted herein is denied.”
In December 2010, Roman-Perez began collection efforts on the Harris County
judgment. On December 22, 2010, Alvarez filed an “Original Bill of Review” on the Harris
County judgment which incorrectly alleged that Roman-Perez filed the Harris County
lawsuit after their motion to transfer venue had been denied. Alvarez argued that Hidalgo
County had dominant jurisdiction. His bill of review stated that what happened after he
filed his motion to abate and motion to transfer venue in the Harris County lawsuit
is not entirely clear. It may be that the Court’s clerk missed Alvarez’s
appearance, because the remaining documents in the file were sent only to
the Defendant Roman-Perez’s counsel, not to the undersigned. Exhibit G.
For whatever reason, counsel for the Defendant Roman-Perez also did not
6
provide copies of the documents he filed in the Court to Alvarez’s counsel
as he was required by rule to do, and in fact none of his filings reflected that
Alvarez had retained the undersigned counsel to represent him. Exhibit H
(documents filed with the court which do not contain a Certificate of Service
and fail to reflect they were sent to Alvarez or his counsel). He then filed a
Motion for Default Judgment affirmatively misrepresenting to the Court that
Alvarez had “failed to appear or file an answer.” Exhibit I. As set forth above,
Alvarez had, in fact, appeared, which counsel for the Defendant knew, as
he received Alvarez’s Motions to Abate and to Transfer Venue. Exhibit J.
E. Neither Alvarez nor his lawyer received any notices from the Court
about this case being retained on the docket or regarding the Defendant’s
request for a default. Nor did the Defendant or his counsel (both of whom
were involved in the suit pending in Hidalgo County) mention the pendency
of the second lawsuit or this request for a default to the undersigned.
F. On March 3, 2010 the Court signed a default judgment against
Alvarez. Exhibit K. For some reason, the Court’s file reflects that no notice
that the default had been taken was sent to Alvarez after it happened.
Exhibit K. The first notice Alvarez had that a default judgment had been
taken against him was when he received a letter from his bank regarding a
Writ of Garnishment that had been served on it by the Defendant, seeking
to enforce the default. Exhibit L.
Roman-Perez filed a motion for summary judgment in the Harris County lawsuit on
September 20, 2013, which countered the allegations Alvarez made in his bill of review.
On October 25, 2013, the Harris County trial court granted Roman-Perez’s motion for
summary judgment and denied Alvarez’s bill of review in “all respects.”
C. Actions in Hidalgo County Trial Courts Following the Judgments at Issue
1. Osborne and Roman-Perez’s Bill of Review
On November 26, 2018, Osborne and Roman-Perez filed their petition for bill of
review in the Hidalgo County trial court alleging that Hidalgo County was not the dominant
jurisdiction, denial of due process due to Alvarez’s behavior, fraud, wrongful acts, and
official mistake. Alvarez filed an original answer and motion to dismiss Osborne and
7
Roman-Perez’s bill of review. On January 18, 2019, the Hidalgo County trial court granted
Alvarez’s motion to dismiss with prejudice, awarded attorney’s fees and appellate fees
and stated that any relief not expressly granted herein was denied. Osborne and Roman-
Perez appealed the court’s dismissal order in cause number 13-19-00067-CV.
2. Alvarez’s Default Judgment
On January 12, 2018, Alvarez filed a motion for declaratory judgment against
Roman-Perez in a different Hidalgo County trial court to determine “[Alvarez’s] right to a
complete setoff of the entire judgment owed to [Roman-Perez], for a declaration [Roman-
Perez]’s judgment against [Alvarez] is, thereby, extinguished due to such setoff, and for
a determination of the balance remaining owing on [Alvarez]’s judgment against [Roman-
Perez] after allowing for such setoff.” On October 22, 2018, Alvarez filed his motion for
default judgment stating that Roman-Perez did not file an answer or appear within the
time allowed by law. On November 6, 2018, Osborne filed a general denial on behalf of
Roman-Perez. On November 11, 2018, Alvarez then filed a motion for summary
judgment. Roman-Perez filed a first amended answer on November 19, 2018.
That Hidalgo County trial court held a hearing on Alvarez’s motion for summary
judgment on December 18, 2018. Alvarez’s counsel indicated he had spoken with
Osborne who stated he had been calling the court and could not get an answer. Alvarez’s
counsel also stated Osborne told him had been recently hired on case set for trial
immediately. During the hearing, Alvarez’s counsel explained that his conversation with
Osborne had been on the previous day and Osborne had not filed a motion for
continuance in the meantime. The trial court stated it had Alvarez’s motion and a response
8
from Osborne on file and would review those documents before making its ruling. On
December 21, 2018, the trial court granted Alvarez’s motion for summary judgment
finding, in relevant part, that
2. The Harris County Judgment is declared fully satisfied by way of a
dollar for dollar credit against the Hidalgo County Judgment and is
hereby extinguished;
3. The Hidalgo County Judgment is subject to a dollar for dollar credit
of the Harris County Judgment and is declared to owe an adjusted
balance of $72,437.80 as of the date of entry of this order, which
balance continues to accrue statutory interest of 5% per annum and
which judgment remains subject to enforcement.
....
This judgment disposes of all parties and claims, is final, and is subject to
appeal. Any relief not expressly granted herein is DENIED.
Roman-Perez appealed the court’s order in appellate cause number 13-19-00044-CV.
II. DOMINANT JURISDICTION
In both appellate cause numbers, the parties allege that the county in which they
filed suit is the proper venue. By part of their second issue in appellate cause number 13-
19-00044-CV and by their third issue in appellate cause number 13-19-00061-CV,
Osborne and Roman-Perez argue that Harris County is the proper venue and the Hidalgo
County judgments are void because Alvarez waived dominant jurisdiction. Alvarez argues
that Hidalgo County was the proper venue because his suit was filed first and because it
is the county where his principal place of business is conducted.
A. Standard of Review and Applicable Law
“In instances where inherently interrelated suits are pending in two counties, and
venue is proper in either county, the court in which suit was first filed acquires dominant
9
jurisdiction.” In re Red Dot Bldg. Sys., Inc., 504 S.W.3d 320, 322 (Tex. 2016) (orig.
proceeding); see In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig.
proceeding); Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005); Wyatt
v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988), overruled on other grounds, In
re J.B. Hunt Transp., Inc., 492 S.W.3d 287. In these circumstances, the general rule is
that the court in the second action must abate the suit. In re Red Dot Bldg. Sys., Inc., 504
S.W.3d at 322; In re J.B. Hunt Transp. Inc., 492 S.W.3d at 294; Wyatt, 760 S.W.2d at
247. The reasons for abatement include conservation of judicial resources, avoidance of
delay, and “comity, convenience, and the necessity for an orderly procedure in the trial of
contested issues.” Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (orig. proceeding)
(quoting Wyatt, 760 S.W.2d at 248); see In re J.B. Hunt Transp. Inc., 492 S.W.3d at
294; see also Dodd v. Evergreen Nat’l Constr., L.L.C., No. 01-16-00974-CV, 2017 WL
2645041, at *4 (Tex. App.—Houston [1st Dist.] June 20, 2017, no pet.) (mem. op.). “A
further justification is simple fairness: in a race to the courthouse, the winner’s suit should
have dominant jurisdiction.” Perry, 66 S.W.3d at 252; see In re King, 478 S.W.3d 930,
933 (Tex. App.—Dallas 2015, orig. proceeding). “The default rule thus tilts the playing
field in favor of according dominant jurisdiction to the court in which suit is first filed.” In
re J.B. Hunt Transp., Inc., 492 S.W.3d at 294 (footnotes and internal quotations
omitted); see Mayfield v. Peek, 546 S.W.3d 253, 265 (Tex. App.—El Paso 2017, no pet.).
“As long as the forum is a proper one, it is the plaintiff’s privilege to choose the forum,”
and a defendant is “simply not at liberty to decline to do battle in the forum chosen by the
plaintiff.” Wyatt, 760 S.W.2d at 248; see In re Amoco Fed. Credit Union, 506 S.W.3d 178,
10
184 (Tex. App.—Tyler 2016, orig. proceeding). We conduct our dominant jurisdiction
analysis under the deferential abuse of discretion standard. In re J.B. Hunt Transp., Inc.,
492 S.W.3d at 293; In re PlainsCapital Bank, 13-17-00021-CV, 2018 WL 2979836, at *6
(Tex. App.—Corpus Christi–Edinburg June 8, 2018, no pet.).
B. Discussion
We begin our analysis to determine dominant jurisdiction by deciding if the Harris
County lawsuit and Hidalgo County lawsuits are inherently interrelated.
Both parties agree in their motions that the Harris County and Hidalgo County
lawsuits arise from the same set of facts. See In re Tex. Christian Univ., 571 S.W.3d 384,
389 (Tex. App.—Dallas 2019, no pet.) (listing the requirements to determine if cases are
inherently interrelated). Therefore, we hold that the lawsuits are inherently interrelated.
Generally, when two suits are inherently interrelated, a “plea in abatement in the second
action must be granted.” In re J.B. Hunt, 492 S.W.3d at 294 (emphasis in original).
However, there are exceptions to the “first-filed” rule.
Exceptions to the “first-filed” rule may apply when the rule’s purposes are not being
served, such as when the first court does not have the full matter before it, when
conferring dominant jurisdiction on the first court will delay or even prevent a prompt and
full adjudication, or “when the race to the courthouse was unfairly run.” Perry v. Del Rio,
66 S.W.3d 239, 252 (Tex. 2001). A plaintiff who filed the first suit may be estopped from
asserting the dominant jurisdiction of the first court if it is found that he is guilty of
inequitable conduct. In re Tex. Christian Univ., 571 S.W.3d at 391. Texas courts have
found parties guilty of inequitable conduct and applied the estoppel exception to the first-
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filed rule when plaintiffs in the first-filed suit (1) filed suit merely to obtain priority, without
a bona fide intention to prosecute the suit; or (2) prevented their adversaries from filing
the subsequent suit more promptly by fraudulently representing that they would settle. Id.;
In re Henry, 274 S.W.3d 185, 191 (Tex. App.—Houston [1st Dist. 2008, orig. proceeding).
Other examples of inequitable conduct sufficient to defeat the first-filed rule are when
plaintiffs in the first-filed suit affirmatively represented to the court in the second-filed suit
that it had jurisdiction or manipulated the courts by sitting in silence while conflicting
orders on the same subject matter are issued in another court. In re Tex. Christian Univ,
571 S.W.3d at 392. However, “establishing inequitable conduct alone is insufficient”
because the inequitable conduct exception is a remedy for the second-filer “who is
delayed—that is, prejudiced—by inequitable conduct. If there is no prejudiced and no
allegation of prejudice, then there is no harm to remedy.” In re J.B. Hunt, 492 S.W.3d at294–95.
Osborne and Roman-Perez assert that Alvarez filed suit to “obtain priority, without
a bona fide intention to prosecute the suit.” Id. at 295. The Texas Supreme Court has
stated that “the mere physical filing of the petition is not sufficient” to establish the requisite
intent. Id. (quoting V.D. Anderson Co. v. Young, 101 S.W.2d 798, 800–01 (1937)). The
first-filer must exhibit “actual diligence thereafter in getting out citation and otherwise
prosecuting his suit.” Reed v. Reed, 311 S.W.2d 628, 631 (1958). When a party has “a
cause of action, files suit, and immediately takes steps to advance that suit, a party cannot
be said to lack the bona fide intent to prosecute its case.” In re J.B. Hunt, 492 S.W.3d at
12
297.6 In In re J.B. Hunt, the supreme court discussed prior cases where it had found that
a delay of twenty-six days before service did not satisfy the exception requirement, but
that a delay of fifteen months before service did satisfy the exception. Id. at 296. Here,
Alvarez waited almost seven months to request service on Osborne and Ramon-Perez
and only requested service on his Hidalgo County lawsuit after he received service on the
Harris County lawsuit. Also, in contrast to In re J.B. Hunt, Alvarez did not attempt to
complete service of process or conduct discovery matters until after he was aware of the
Harris County lawsuit. See id. at 297.
Following being served in the Harris County suit, Alvarez filed a motion to transfer
venue and a motion to abate. In his motion to transfer venue, he alleged that venue was
mandatory in Hidalgo County because Roman-Perez alleged “legal malpractice for a
violation of Texas Disciplinary Rules of Professional Conduct 1.04, 1.14, and Rule
8.04(a).” Alvarez stated in his motion that in suits for lawyer discipline, “venue is in the
county of the attorney’s principal place of practice, in the county of the attorney’s
residence, or in the county where the misconduct occurred in whole or part.” In his motion
to abate, Alvarez explained to the Harris County trial court that the “parties are litigating
this same dispute in another state court. The disputes in both cases arise out of the legal
representation of Roman-Perez.” He also stated that he filed suit “on or about January
6 While the existence of diligence is generally a question of fact, if no excuse is offered for the long
delay, or if the time lapses and the plaintiff’s acts conclusively negate diligence, a lack of diligence will be
found as matter of law. Southern Cty Mutual Insur. Co. v. Ochoa, 19 S.W.3d 452, 462 (Tex. App.—Corpus
Christi–Edinburg 2000, no pet.); Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex.
App.—Corpus Christi–Edinburg 1994, no writ); Newman v. Broadus, 847 S.W.2d 249, 251 (Tex. App.—
Corpus Christi–Edinburg 1992, no writ). Courts have consistently held that unexplained delays of five or six
months in procuring issuance and service of citation constitute a lack of due diligence as a matter of law.
Ochoa, 19 S.W.3d at 462.
13
22, 2008” in Hidalgo County. However, according to Osborne and Roman-Perez’s brief,
Alvarez never requested a hearing on his motions to transfer venue and abate. No court
action was taken on Alvarez’s motion to transfer venue and abate until March 3, 2010,
when the Harris County trial court denied the motions in its final judgment.
In the meantime, in September 2008, Osborne filed his motion to transfer venue,
stating that Harris County was the proper venue, Alvarez engaged in forum shopping,
and Roman-Perez’s criminal case (for which Alvarez had been retained initially) was in
the Houston Division of the Southern District of Texas. Osborne also stated that Alvarez
filed the Hidalgo County lawsuit but “never sought service of his petition.” Osborne
attached exhibits to provide evidence that he and Roman-Perez were served with the
Hidalgo County lawsuit after they served Alvarez on the Harris County lawsuit. Osborne’s
motion to transfer venue was denied on December 1, 2008. Additionally, the Hidalgo
County trial court granted an interlocutory default judgment against Roman-Perez in
October 2008.
Here, although both parties proceeded as if their lawsuit was in the mandatory
venue, we agree with Osborne and Roman-Perez. Although Alvarez had the “first-filed”
lawsuit, he did nothing to show an intent to prosecute until after he learned of the Harris
County lawsuit. See id. at 295. When Roman-Perez filed his lawsuit in Harris County,
neither Osborne nor Roman-Perez had notice of a previously pending lawsuit against
them arising from the same facts in Hidalgo County. Therefore, we hold, that in this
situation and under these set of facts, the Harris County lawsuit was the dominant
jurisdiction. We sustain Osborne and Roman-Perez’s third issue in appellate cause
14
number 13-19-00067-CV and part of issue two in appellate cause number 13-19-00044-
CV.
III. BILL OF REVIEW/MOTION TO DISMISS
In appellate cause number 13-19-00067-CV, Osborne and Roman-Perez
challenge the trial court’s granting of Alvarez’s motion to dismiss their bill of review. By
their first and seventh issues, Osborne and Roman-Perez argue their bill of review stated
a cause of action that had a basis in law and fact. By their second issue, they argue the
bill of review had a basis in law that entitled them to relief. By their fourth issue, Osborne
and Roman-Perez allege the trial court erred by granting Alvarez’s motion to dismiss
because the Harris County judgment superseded the Hidalgo County lawsuit judgment.
By their fifth issue, Osborne and Roman-Perez state that the Harris County judgment
legally disposed of all claims between the parties arising out of this transaction or
occurrence. By their sixth issue, they state the Hidalgo County trial court lacked
jurisdiction to enter a default judgment against them as a result of the Harris County
judgment. By their eight issue, they argue the Hidalgo County trial court erred when it
decided there was no cause of action in fact because the allegations could were
believable to a reasonable person.
A. Standard of Review
1. Bill of Review
“A bill of review is brought as a direct attack on a judgment that is no longer
appealable or subject to a motion for new trial.” Frost Nat’l Bank v. Fernandez, 315
S.W.3d 494, 504 (Tex. 2010). Because it is a direct attack, a bill of review must be filed
15
in the court that rendered the original judgment, and only that court may exercise
jurisdiction over the bill. Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015). A bill of
review proceeding is filed as a separate cause of action. Alaimo v. U.S. Bank Trust Nat’l
Assoc., 551 S.W.3d 212, 214 (Tex. App.—Fort Worth 2017, no pet.). To obtain an
equitable bill of review, a petitioner must generally plead and prove (1) a meritorious claim
or defense to the judgment, (2) which the petitioner was prevented from making by official
mistake or by the opposing party’s fraud, accident, or wrongful act, (3) unmixed with any
fault or negligence on the petitioner’s own part. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751–52 (Tex. 2003).
2. Motion to Dismiss
Rule 91a of the Texas Rules of Civil Procedure states:
A party may move to dismiss a cause of action on the grounds that it has
no basis in law or fact. A cause of action has no basis in law if the
allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought. A cause of action has
no basis in fact if no reasonable person could believe the facts pleaded.
TEX. R. CIV. P. 91a.1; In re Odebrecht Const. Inc., 548 S.W.3d 739, 745 (Tex. App.—
Corpus Christi–Edinburg 2018, no pet.). “A motion to dismiss must state that it is made
pursuant to this rule, must identify each cause of action to which it is addressed, and must
state specifically the reasons the cause of action has no basis in law, no basis in fact, or
both.” Id. R 91a.2. The rule allows the responding party to either nonsuit or amend the
challenged cause of action at least three days before the date of the hearing on the motion
to dismiss. See id. R. 91a.5(a), (b). “The trial court may, but is not required to, conduct an
oral hearing on the motion.” Id. R. 91a.6. Further, “the court may not consider evidence
16
in ruling on the motion and must decide the motion based solely on the pleading of the
cause of action, together with any pleading exhibits” permitted by the rules of civil
procedure. Id.; see City of Dallas v. Sanchez, 494 S.W.3d 722, 725 (Tex. 2016); Reaves
v. City of Corpus Christi, 518 S.W.3d 594, 599 (Tex. App.—Corpus Christi–Edinburg
2017, no pet.); Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet.
denied); In re Butt, 495 S.W.3d 455, 461 (Tex. App.—Corpus Christ–Edinburg 2016, orig.
proceeding); see also TEX. R. CIV. P. 59 (governing the incorporation of exhibits into
pleadings.)
We perform a de novo review of the trial court’s ruling on a Rule 91a motion to
dismiss. See City of Dallas, 494 S.W.3d at 725; In re Odebrecht Const. Inc., 548 S.W.3d
739, 745–46; Parkhurst v. Office of Att’y Gen. of Tex., 481 S.W.3d 400, 402 (Tex. App.—
Amarillo 2015, no pet.); Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied); Dailey v. Thorpe, 445 S.W.3d 785, 788 (Tex. App.—
Houston [1st Dist.] 2014, no pet.); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822
(Tex. App.—Austin 2014, no pet.); GoDaddy.com, L.L.C. v. Toups, 429 S.W.3d 752, 754
(Tex. App.—Beaumont 2014, pet. denied). We apply a de novo standard because the
availability of a remedy under the facts alleged is a question of law and the rule’s factual-
plausibility standard is akin to a legal-sufficiency review. See City of Dallas, 494 S.W.3d
725.
B. Applicable Law and Discussion
Osborne and Roman-Perez argue that their bill of review had a basis in law and in
fact. Alvarez’s motion to dismiss was required to show that the bill of review had no basis
17
in law or fact. The final resolution of the bill of review proceeding will involve either a one-
step or a two-step process, depending on the trial court’s determination. Alaimo, 551
S.W.3d at 215.
Osborne and Roman-Perez argued in their bill of review that Alvarez was not
entitled to dominant jurisdiction under the “first-filed” rule because he did not intend to
prosecute the lawsuit, as evidenced by his lack of service. They further explained that
determination of any estoppel exceptions was determined by the court of second filing
(Harris County), which determined that Alvarez’s conduct “warranted application of the
estoppel exception,” thereby depriving the Hidalgo County courts of jurisdiction.
Additionally, they explained that the Harris County court had issued a default judgment in
2010 that finally disposed of “all parties and claims and was a final and appealable
judgment,” that Alvarez filed a bill of review that was denied, and Alvarez did not appeal
the default judgment rendered against him, which means that “all claims between the
parties have been fully adjudicated.” Osborne and Roman-Perez argued that the “legal
tactics” employed by Alvarez were “knowingly wrongful and illegal because he had actual
knowledge that the claims he was asserting [in the Hidalgo County lawsuit] had been
disposed of and adjudicated in the default judgment in the Harris County lawsuit on March
3, 2010.” They also argued that Alvarez knew he failed to assert compulsory
counterclaims, that Harris County had dominant jurisdiction over the cases, and his
actions “constituted a fraud on the court because such actions were a gross
misrepresentation and omission by Alvarez in his pleadings to the court when seeking
such relief.”
18
In order for the trial court to dismiss Osborne and Roman-Perez’s bill of review, it
must have found that the cause of action had no basis in law or fact. “A cause of action
has no basis in law if the allegations, taken as true, together with inferences reasonably
drawn from them, do not entitle the claimant to the relief sought.” TEX. R. CIV. P. 91a.1.
“A cause of action has no basis in fact if no reasonable person could believe the facts
pleaded.” Id. Although the trial court granted the motion to dismiss, we disagree with its
determination that the cause of action had no basis in law or fact. Upon review of the bill
of review and attached exhibits, we hold that the allegations, which we are required to
take as true, would entitle the claimant to the relief sought. Id. Osborne and Roman-Perez
state that the Hidalgo County lawsuit was not filed in a court of dominant jurisdiction, and
because we have already held that Harris County was the county of dominant jurisdiction
in this case, we agree. Additionally, reviewing the allegations and exhibits in the bill of
review, we disagree with the trial court that a reasonable person would not believe the
facts as presented. Id. It was apparent from the pleadings that the facts showed that two
lawsuits were filed, the Harris County trial court issued a judgment prior to the Hidalgo
County trial courts, and that Harris County could have had dominant jurisdiction, as we
found earlier. The trial court committed error by granting Alvarez’s motion to dismiss
Osborne and Roman-Perez’s bill of review.
We next evaluate the bill of review. To obtain relief, Osborne and Roman-Perez
were required to show: (1) a meritorious claim or defense to the judgment, (2) which the
petitioner was prevented from making by official mistake or by the opposing party’s fraud,
accident, or wrongful act, (3) unmixed with any fault or negligence on the petitioner’s own
19
part. Chapman, 118 S.W.3d at 751–52. Here, Osborne and Roman-Perez raised a
defense to the judgment by stating that Harris County was the dominant jurisdiction and
that the Harris County judgment entered in 2010, which disposed of all issues between
the parties, was the controlling judgment. Their bill of review and attached exhibits also
showed that although Alvarez knew of the Harris County lawsuit and judgment, he
continued to litigate his case in Hidalgo County. Osborne filed a motion to transfer venue
putting the Hidalgo County courts on notice of another lawsuit, which was denied in
December 2008. Alvarez, although he filed a motion to transfer venue and motion to
abate, never requested a hearing on his motion. As a result, it was eventually denied
when the final judgment was entered in March 2010. Alvarez was aware of the disposition
of the Harris County suit because he filed his own bill of review with the Harris County
court in December 2010. Alvarez did not seek a final judgment in the Hidalgo County trial
court until November 2014, four years after the Harris County final judgment was entered
and one year after the summary judgment denying his bill of review was entered. His
continued litigation in the Hidalgo County case constituted a wrongful act on his part
because he was well-aware of the outcome of the Harris County lawsuit. See id. Osborne
and Roman-Perez also did not commit negligence or fault in their handling of the Harris
County or Hidalgo County cases prior to the final judgment rendered in Harris County.
Osborne filed a motion to transfer venue shortly after they were served with the Hidalgo
County case, which was denied. Osborne and Roman-Perez proceeded with the Harris
County case. After Alvarez had sat idly on his motion to transfer venue and abate, the
trial court denied the motion to transfer venue and disposed of any and all claims between
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the parties arising from this transaction in the 2010 Harris County final judgment. With no
motion for new trial or appeal of the final judgment and the denial of Alvarez’s bill of
review, the Harris County judgment is the final judgment in this matter. Therefore, we hold
that Osborne and Roman-Perez’s bill of review should have been granted. We sustain
Osborne and Roman-Perez’s first, second, fourth, fifth, sixth, seventh, and eighth issues.7
IV. SUMMARY JUDGMENT
In cause number 13-19-00044-CV, Roman-Perez challenges the trial court’s grant
of Alvarez’s summary judgment that offset the amount he owed. By his first issue, Roman-
Perez allege the trial court erred in granting summary judgment because there was no
justiciable controversy between the parties. By part of his second issue, he states the trial
court erred because there was a material fact issue regarding the validity of the judgment
rendered in Hidalgo County.8
A. Standard of Review
We review a trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We review the evidence presented
7 Because we hold that the bill of review should have been granted, the trial court must now
undertake the second step of the bill of review process–the adjudication of the original, underlying cause
of action. See Alaimo v. U.S. Bank Trust Nat’l Assoc., 551 S.W.3d 212, 215 (Tex. App.—Fort Worth 2017,
no pet.). Because “only one final judgment may be rendered in a bill of review proceeding,” that judgment
must contain two components: (1) whether “the complainant is suffering under a wrongfully-obtained
judgment,” and if so (2) whether the bill of review defendant, the original plaintiff, has proved the elements
of his original cause of action.” Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979). A final judgment in
a bill of review should either: (1) deny any relief to the bill of review petitioner, or (2) “grant the bill of review
and set aside the former judgment, insofar as it is attacked, and substitute a new judgment which properly
adjudicates the entire controversy.” In re J.B.A., 127 S.W.3d 850, 851 (Tex. App.—Fort Worth 2004, no
pet.).
8
Although Alvarez filed motions for extension of time to file a brief with this Court, a brief on his
behalf was never filed in this cause number.
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in the motion and response in the light most favorable to the nonmovant against whom
the summary judgment was rendered, crediting evidence favorable to the party if
reasonable jurors could and disregarding contrary evidence unless reasonable jurors
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002). The party moving for
traditional summary judgment bears the burden of showing no genuine issue of material
fact exists and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see
also Knott, 128 S.W.3d at 216.
Because the trial court’s order does not specify the grounds for its summary
judgment, we must affirm the summary judgment if any of the theories presented to the
trial court and preserved for appellate review are meritorious. See Knott, 128 S.W.3d at
216.
B. Applicable Law and Discussion
Alvarez first filed a petition requesting a declaratory judgment authorizing offset
between the Harris County judgment and the Hidalgo County lawsuit judgment. A month
after he filed his petition, he then filed a motion for default judgment against Roman-
Perez. When Roman-Perez filed a general denial, Alvarez then filed a motion for
summary judgment requesting the offset of mutual judgments and attorney’s fees.
Roman-Perez filed an amended answer where he generally denied the allegations and
affirmatively pleaded he was not liable due to estoppel, res judicata, and waiver. Roman-
Perez also requested that the Hidalgo County judgment be determined to be void for want
of jurisdiction, which would render Alvarez’s “claim in this cause of action baseless and
22
moot.” Alvarez responded that Roman-Perez had waived raising any affirmative defenses
because Roman-Perez had not raised them previously in the underlying case. Alvarez’s
first supplemental response also discusses void and voidable judgements and how “all
errors, other than lack of jurisdiction, render a judgment merely voidable; the only grounds
for collateral attack is a showing jurisdiction did not attach.” He also states that “the record
shows the parties were litigating over tort/contract issues over which the trial court very
clearly has jurisdiction as a county court at law of the State of Texas.”
The trial court found there were “valid, subsisting judgment[s]” in Harris and
Hidalgo counties and granted summary judgment in favor of Alvarez. It also held that the
Harris County judgment was “fully satisfied” by a credit against the Hidalgo County
judgment and was extinguished. The Hidalgo County judgment was “subject to a dollar
for dollar credit of the Harris County Judgment” and Roman-Perez was declared to owe
“$72,437.80” to Alvarez, as well as reasonable attorney’s fees in the amount of
$4,500.00 work at the trial court and through all trial court proceedings
through default judgment; $10,000.00 for any work on an appeal at the court
of appeals; $4,000.00 for work on a petition for review or response to same
before the Texas Supreme Court; $8,000.00 to brief the Texas Supreme
Court; $7,000.00 to argue and to conclude proceedings before the Texas
Supreme Court.
Roman-Perez argues the trial court lacked jurisdiction because the judgment was
void. A judgment is void when “the court rendering judgment had no jurisdiction of the
parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the
particular judgment, or no capacity to act.” PNS Stores, Inc. v. Rivera, 379 S.W.3d 267,
272 (Tex. 2012) (quoting Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.
2010)). Due to our previous holding that the Harris County court had dominant jurisdiction,
23
we agree with Roman-Perez. The final judgment issued in 2010 by Harris County
terminated all claims and controversies between the parties, and the 2014 Hidalgo County
judgment is rendered void based on that finding. Therefore, there was no Hidalgo County
judgment for the trial court to offset the Harris County judgment with. We sustain Roman-
Perez’s first and second issues.
V. CONCLUSION
In appellate cause number 13-19-00067-CV, we reverse and remand to the case
to the trial court for further proceedings consistent with this opinion. In appellate cause
number 13-19-00044-CV, we reverse and render judgment in favor of Roman-Perez.
GINA M. BENAVIDES
Justice
Delivered and filed the
19th day of November, 2020.
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