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Bechem v. Reliant Energy Retail Services, LLC

Court of Appeals of Texas, First District

March 14, 2017

REGENIA BECHEM, Appellant
v.
RELIANT ENERGY RETAIL SERVICES, LLC AND COMERICA BANK, Appellees

         On Appeal from the County Court at Law No. 2 Harris County, Texas Trial Court Case No. 1071269

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd

          MEMORANDUM OPINION

          Sherry Radack Chief Justice

         This is an appeal from the trial court's dismissal of appellant Regenia Bechem's bill of review for failure to diligently prosecute. Because we conclude that the trial court abused its discretion by dismissing Bechem's case that had been pending less than three months, we reverse and remand for further proceedings.

         A. Prior Litigation and Appeal

         In a prior suit, appellee Reliant Energy Retail Services obtained a money judgment against Bechem.

         Reliant later filed an Application for Writ of Garnishment seeking a post-judgment writ of garnishment directed at Bechem's bank, appellee Comerica Bank. The trial court issued the writ, and Comerica filed an answer stating that it had two deposit accounts associated with Bechem's name: (1) a joint checking account held by Bechem and her mother, and (2) a custodial account Bechem held on behalf of her daughter. The Bank's answer asserted that the custodial account might be exempt from seizure because Bechem was not the beneficial owner. Reliant agreed and released any claim to that account.

         Bechem filed an Original Answer and Motion to Dissolve the Writ claiming that the joint account was also exempt from seizure because (1) it was exempt personal property, and (2) it was a "convenience" account established for the benefit of her mother.

         Bechem did not appear at trial, but Reliant and Comerica did. Reliant and Comerica announced a settlement had been reached between them and requested entry of judgment. The trial court entered a judgment awarding funds from Bechem's joint account to Reliant in satisfaction of its judgment and to Comerica for its attorneys' fees. Bechem filed an objection to the settlement and a motion for new trial, which the trial court denied.

         The Fourteenth Court of Appeals reversed. Bechem v. Reliant Energy Retail Servs., 441 S.W.3d 839 (Tex. App.-Houston [14th Dist.] 2014, no pet.). It rejected the trial court's characterization of the judgment as "agreed" since Bechem did not agree to the settlement-only Reliant and Comerica did. Id. at 845-46. The court of appeals explained that the judgment was instead properly characterized as a post-answer default judgment. Id. at 846. Because no record was taken of trial, the court of appeals could not evaluate whether evidence supported the default judgment. Id. Accordingly, it reversed the judgment and remanded to the trial court. Id.

         On remand, the trial court set a January 12, 2015 trial date. At the agreed request of the parties, the trial court continued that setting. Trial was reset for, and held on, March 30, 2015.

         On August 14, 2015, the trial court entered judgment in Bechem's favor, dissolved the writ of garnishment and released Comerica as garnishee. The court denied, however, Bechem's request to recover her attorneys' fees.

         B. The Underlying Proceeding

         On December 11, 2015, Bechem filed the underlying bill of review contending that the parties did not receive notice of the August 14, 2015 judgment until November 25, 2015. It was supported by a sworn affidavit from her attorney, who alleged that "as a result of not being given official notice that the judgment had been signed, the timetables and deadlines contained in Tex.R.Civ.P. 306a(4) and 329b have expired, and the only relief available to the Judgment Defendant-Petition is through a Bill of Review." Finally, he contended the bill of review was filed promptly after receiving notice, and that Bechem "has a meritorious ...


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