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Blair v. McClinton

Court of Appeals of Texas, First District

July 13, 2017

GLENN BLAIR, Appellant
v.
ANGELA MCCLINTON, Appellee

         On Appeal from the 505th District Court Fort Bend County, Texas Trial Court Case No. 15-DCV-228828

          Panel consists of Justices Higley, Bland, and Brown.

          MEMORANDUM OPINION

          Jane Bland Justice.

         This is an appeal from an order denying a petition for a bill of review, seeking to set aside a child support order. On appeal, Glenn Blair contends that the trial court erred in denying his petition because the trial court's child support order is void. We affirm.

         Background

         Glenn Blair and Angela McClinton had a child and resided together in Houston from 2000 until 2011, when they unsuccessfully sought a common-law divorce. In November 2011, the Attorney General's office filed a "Petition for Confirmation of Non-Agreed Child Support Review Order." The petition contained a proposed order for conservatorship that had been signed by McClinton but not by Blair.

         In June 2011, the trial court convened a conference in the case. A representative from the Attorney General's office attended the conference; also, Blair and McClinton were each present and represented by counsel. Following the conference, Blair, McClinton, the Attorney General's representative, and the presiding judge signed an order confirming child support. The order appointed Blair and McClinton as joint managing conservators of their child, awarded McClinton the exclusive right to determine the primary residence of the child, and required Blair to pay $340 per month in child support and $55 per month in medical support. The trial court's order incorporated the proposed order that the Attorney General's office had filed with the court, with the parties' interlineated amendments, as an exhibit to the child support order. Blair, McClinton, and their attorneys signed the order. They also signed the accompanying exhibit, as it was amended at the conference. Blair did not appeal the order.

         In December 2015, Blair petitioned for a bill of review, seeking to set aside the 2011 order. Blair asserted that his attorney and McClinton had committed extrinsic fraud, and that the 2011 child-support order was void because the trial court had lacked jurisdiction over the case. Proceeding pro se, Blair called himself as a witness. Blair testified that the 2011 order was void because the Attorney General's child-support claim was prematurely brought. He testified that the Attorney General's office "would have had to wait until the Judge signed the actual order" in connection with the parties' attempt to secure a common-law divorce before it instituted a child-support proceeding.

         Blair adduced no other evidence in support of the petition for a bill of review. The trial court denied the petition.

         Discussion

         A. Standard of Review

         A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010); Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). A bill-of-review plaintiff must plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiff was unable to present due to the fraud, accident or wrongful act of the opposite party or official mistake, (3) unmixed with any negligence of his own. Caldwell, 154 S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979). The fact that an injustice may have occurred is not sufficient to justify relief by bill of review. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam). Fraudulent or improper conduct of a petitioner's own attorney does not satisfy the second requirement for a bill of review. See Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987) ("We hold that bill of review petitioner who alleges that he suffered adverse judgment because of fraudulent or wrongful acts of his attorney is not excused from necessity of pleading and proving extrinsic fraud on part of his opponent.").

         We review a trial court's ruling on a bill of review for an abuse of discretion, indulging every presumption in favor of that court's ruling. Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.-Houston [1st Dist.] 2007, no pet.). A self-represented litigant, as Blair is in this appeal, is held to the same standard as a licensed attorney. Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.- Houston [1st Dist.] 1985, no writ). There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Litigants who represent themselves thus must comply with the applicable procedural rules. Id. at 185.

         B.Analy ...


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