Levonne Marie Kukuk v. Timothy Kukuk

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00382-CV
LEVONNE MARIE KUKUK APPELLANT
V.
TIMOTHY KUKUK APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
TRIAL COURT NO. CIV-14-0200
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MEMORANDUM OPINION1
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Appellant Levonne Marie Kukuk appeals the trial court’s order denying her
petition for bill of review. We will affirm.
Appellant and Appellee Timothy Kukuk divorced sometime in the late
1990s. On January 23, 2009, in an effort to modify the terms of custody and
child support, Appellee filed a motion for enforcement, clarification, and
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See Tex. R. App. P. 47.4.
modification of prior order for child support and for possession or access and to
reduce to judgment medical arrearages and enforce and reduce to judgment
dependency exemption allowances. In October 2009, Appellant was contacted
by Appellee’s counsel, requesting to set a date for a hearing on this motion. By
this time, Appellant’s counsel had withdrawn from the case and Appellant was
representing herself pro se.
Appellant became aware of the January 14, 2010 hearing after speaking
with Appellee on the phone seven days before the hearing was set to occur.
However, at the hearing, Appellee’s counsel claimed to have sent a notice letter
containing information about the hearing by certified mail to Appellant on
November 15, 2009. Appellant claims the October 2009 letter was the last
correspondence she received regarding the hearing until receiving the final
judgment, which was signed on March 10, 2010.
Appellant claims that she was first made aware of the hearing when she
discussed it with Appellee on the phone. Further, she claims that in an effort to
delay proceedings, she sent a motion for continuance and a personal letter to the
trial court the day after her conversation with Appellee. Appellant did not hear
anything else regarding the hearing until she received a final judgment shortly
after March 10, 2010. She did not pursue a motion for new trial, appeal, or other
remedy until filing a petition for bill of review on March 7, 2014.
In three issues, Appellant argues that the evidence is legally insufficient to
show that she received sufficient notice of the January 14, 2010 hearing and that
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the evidence is legally and factually insufficient to support the trial court’s denial
of her petition for bill of review.
In our due process review of the evidence, we will determine whether the
trial court’s denial of Appellant’s bill of review constituted an abuse of discretion.
A trial court abuses its discretion if the court acts without reference to any guiding
rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004). An appellate court cannot conclude that a trial court abused its
discretion merely because the appellate court would have ruled differently in the
same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
A trial court also abuses its discretion by ruling without supporting
evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an
abuse of discretion does not occur when the trial court bases its decision on
conflicting evidence and some evidence of substantive and probative character
supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.
2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).
A bill of review allows a party to challenge a judgment after the time for
filing a motion for new trial or an appeal has expired. Valdez v. Hollenbeck,
No. 13-0709, 2015 WL 3640887, at *1 (Tex. June 12, 2015). Although it is an
equitable proceeding, the fact that an injustice has occurred is not sufficient to
justify relief by bill of review. Wembley Inv., Co. v. Herrera, 11 S.W.3d 924, 927
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(Tex. 1999) (citing Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)).
Courts narrowly construe the grounds on which a plaintiff may obtain a bill of
review due to Texas’s fundamental public policy favoring the finality of
judgments. Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812
(Tex. 2012) (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003); Alexander, 226 S.W.2d at 998. A person is not entitled to relief by bill of
review unless he has exhausted all other remedies available at the time the bill is
filed. See Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004); Wembley, 11 S.W.3d
at 927; Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980). If a party allows a
judgment to become final by neglecting to file a motion for new trial, appeal, or
appeal by writ of error, then the party is precluded from proceeding on a petition
for bill of review unless the complaint shows a good excuse for the party’s failure
to exhaust adequate legal remedies. Rundle v. Comm’n for Lawyer Discipline, 1
S.W.3d 209, 216 (Tex. App.—Amarillo 1999, no pet.); see Gold, 145 S.W.3d at
214.
Here, the trial court did not abuse its discretion by denying Appellant’s bill
of review because Appellant failed to exhaust all available legal remedies
beforehand.2 Appellant became aware of the March 10, 2010 final judgment
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Appellee argues alternatively that the bill of review was barred by
limitations because the judgment was rendered more than four years before
Appellant filed the petition. This argument is unpersuasive, however, because
the statute of limitations did not begin to run until the date the judgment was
signed, which was on March 10, 2010. See Tex. R. Civ. P. 306a.
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shortly after it was signed—at the latest, sometime in March 2010. Appellant
thus became aware of the judgment soon enough after it was signed to have filed
a motion for new trial or a direct appeal. See Tex. R. Civ. P. 329b(a) (“A motion
for new trial, if filed, shall be filed prior to or within thirty days after the judgment
or other order complained of is signed.”); Tex. R. App. P. 26.1(a), (b) (expressing
that an appellant can appeal up to thirty days after the final judgment is signed,
or ninety days if the party timely files a motion for new trial, a motion to modify
the judgment, a motion to reinstate, or a request for findings of fact and
conclusions of law). However, Appellant failed to pursue any other legal
remedies until filing a bill of review almost four years later.
When asked why she waited so long to act, Appellant explained that she
was unwilling to seek any legal remedy other than a bill of review and, for that
reason, she had difficulty obtaining counsel. However, an unwillingness to utilize
alternate legal remedies is no excuse for failing to exhaust all available means of
review. See Johnson v. W.J. Hancock Paint & Wallpaper Co., 336 S.W.2d 468,
469 (Tex. Civ. App.—Fort Worth 1960, writ ref’d n.r.e.) (holding that an
unexplained delay of fifty-four days demonstrated lack of due diligence when
appellant had the ability to pursue other legal remedies); see Ruland v. Ley, 144
S.W.2d 883, 884–85 (Tex. 1939) (holding that a four-month delay between
discovery of the judgment and the filing of the bill of review demonstrated lack of
due diligence when appellant failed to take alternate action due to
inconvenience).
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Appellant directs us to Caldwell v. Barnes, arguing, “Even if the individual
becomes aware of the proceedings, he or she has no duty to participate in them
without proper service of process, and is also not at fault for failing to answer.”
975 S.W.2d 535, 537–38 (Tex. 1998). Our case is distinguishable from Caldwell,
however, because the appellant in Caldwell did not become aware of the
judgment until after other legal remedies had already expired. See id. (“Barnes
does not argue that Caldwell failed to use diligence in pursuing legal remedies
under Texas law because . . . no legal remedies remained available to him.”).
Appellant had other means of attacking the judgment available to her, but she
consciously chose to disregard them in order to file a bill of review.
Because Appellant failed to use due diligence in challenging the March 10,
2010 judgment, the trial court’s decision was not arbitrary or unreasonable. See
Low, 221 S.W.3d at 614; Cire, 134 S.W.3d at 838–39; see also Gold, 145
S.W.3d at 214; Wembley, 11 S.W.3d at 927; Rizk, 603 S.W.2d at 775. For this
reason, the trial court did not abuse its discretion by denying her bill of review.
Accordingly, we overrule Appellant’s issues and affirm the trial court’s order
denying the petition for bill of review.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DAUPHINOT, J., concurs without opinion.
DELIVERED: July 23, 2015
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