Court of Appeals of Texas, Fourth District, San Antonio
Sitting: Karen Angelini, Justice, Patricia O. Alvarez,
Justice, Luz Elena D. Chapa, Justice.
motion for rehearing filed on January 12, 2017, by real
parties in interest Peridot Joint Venture, Millennium
Exploration Company, LLC, and Richard Monroy is granted. This
court's opinion and order in this original proceeding
dated December 6, 2016, are hereby withdrawn and this opinion
is substituted. Upon further consideration and for the
reasons set forth in this opinion, we deny the petition for
writ of mandamus.
RPH Capital Partners, LP ("RPH"), filed suit
against Peridot Joint Venture, Millennium Exploration
Company, LLC, and Richard Monroy (collectively
"Peridot"), alleging various claims for relief
based on a dispute arising from a participation agreement
involving a number of oil and gas properties. When Peridot
did not appear for the trial on the merits, RPH obtained a
default judgment. Peridot challenged the default judgment by
filing a petition for bill of review in the trial court.
After the trial court granted Peridot's bill of review on
June 9, 2016, RPH filed this original proceeding.
investment group that invests in oil and gas properties,
entered into a participation agreement with Peridot. In
exchange for payments made to RPH, Peridot was allowed to
participate in drilling and operating various oil and gas
wells and share in any resulting profits. In August 2015,
Peridot demanded that RPH forfeit all future interest in a
well subject to the participation agreement. In response to
Peridot's demand, RPH filed suit against Peridot. In its
petition, RPH alleged Peridot did not make payments under the
participation agreement and engaged in fraud by selling
interests in properties Peridot did not own to outside
investors. RPH sought a declaratory judgment and damages for
breach of contract, detrimental reliance, and promissory
estoppel. RPH also sought an injunction. After a hearing was
held on RPH's request for a temporary injunction on
November 5, 2015, the trial court announced it was granting
the temporary injunction and instructed the parties to submit
an agreed proposed order. RPH sent a draft of the proposed
order, via email, to Wade McClure, lead counsel for Peridot.
The proposed order left a blank for the time and date of
trial on the merits. McClure approved the order as to form,
and RPH filed it with the trial court.
trial court signed the order on November 5, 2015. A trial
date of December 14, 2015, was hand-written into the signed
order. The signed order was emailed to McClure after 5:00
p.m. on November 5, 2015, thus giving Peridot 38 days'
notice of the trial date.
case was called for trial on December 14, 2015. Peridot did
not appear for trial. Counsel for RPH told the trial court
that Peridot received notice of the trial date, but for the
past "30 days or so" Peridot had not responded to
text messages, emails or phone calls. RPH put on evidence of
damages and the trial judge signed a post-answer default
judgment awarding RPH $4, 504, 500.00 in damages,
attorney's fees of $50, 000.00, and punitive damages of
$3, 000, 000.00, each, against Peridot Joint Venture,
Millennium Exploration Company, LLC, and Richard Monroy, for
a total of $13, 554, 500.00.
did not file a motion for new trial, nor did it file a notice
of appeal. On March 24, 2016, after RPH began to garnish
Peridot's bank accounts, Peridot filed an original
petition for bill of review. In the petition, Peridot
contended it never received a copy of the December 14, 2015
judgment, a contention which is undisputed. Because the
temporary injunction order gave only 38 days' notice of
the trial date, Peridot further argued it was deprived of its
due process right to notice of a trial and was entitled to a
reversal of the judgment. On May 17, 2016, Peridot filed a
motion for summary judgment on its bill of review. After a
hearing, the trial court granted summary judgment in
Peridot's favor. The summary judgment order vacated the
December 14, 2015 default judgment based on the trial
court's finding "that as a matter of law, the
Peridott [sic] Plaintiffs were denied due process." RPH
then filed this petition for writ of mandamus, asking this
court to order the trial court to vacate the summary judgment
order and reinstate the December 14, 2015 judgment.
relief is available when a trial court erroneously grants a
bill of review. In re Spiller, 303 S.W.3d 426, 431
(Tex. App.-Waco 2010, orig. proceeding); In re Nat'l
Unity Ins. Co., 963 S.W.2d 876, 877 (Tex. App.-San
Antonio 1998, orig. proceeding). However, in order to be
entitled to mandamus relief, the relator must show the trial
court's ruling was a clear 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 bill-of-review plaintiff must "plead and prove (1) a
meritorious defense or claim to the underlying cause of
action, (2) which the plaintiff was prevented from making by
the fraud, accident, or wrongful act of the opposing party or
official mistake, (3) unmixed with any negligence or fault on
the part of the plaintiff." Eastin v. Dial, 288
S.W.3d 491, 497 (Tex. App.- San Antonio 2009, pet. denied);
see also City of Laredo v. Threadgill, 686 S.W.2d
734, 734-35 (Tex. App-San Antonio, 1985, no writ). However,
that standard is modified when a party is prevented from
filing a motion for new trial because the trial court failed
to send notice of a default judgment. Threadgill,
686 S.W.2d at 735. When a defaulting party shows that it was
not notified that a judgment was taken, and this lack of
notice caused the party to miss the deadline for filing a
motion for new trial, ...