R. SCOTT PHELAN, Appellant
H. SCOTT NORVILLE, Appellee
the 237th District Court Lubbock County, Texas Trial Court
No. 2015-516, 400
Chief Justice Gray, Justice Davis, and Justice Scoggins
Justice Gray dissenting with note)
Scott Phelan sought a bill of review to set aside a final
judgment against H. Scott Norville. The trial court denied
the bill of review, and Phelan appeals. We affirm.
was an assistant professor in the Department of Civil
Engineering at Texas Tech University, and Norville was the
Chair of the Department of Engineering. Phelan brought suit
against Norville for assault and defamation. Texas Tech
University was originally a party defendant, but was
dismissed by summary judgment. In November 2012, a jury found
that Norville assaulted and libeled Phelan and awarded $590,
000 in damages. During the trial, Texas Tech School of Law
offered the trial judge who presided over the original
lawsuit a position as an adjunct professor at the law school.
The judge accepted the offer. In January 2013, the judge
granted Norville's motion for judgment N.O.V in part and
set aside the jury award of $250, 000 for mental anguish.
case was appealed to the Amarillo Court of Appeals, and the
court held oral argument in the courtroom of the Texas Tech
School of Law on October 10, 2013. On August 12, 2014, while
the case was pending on appeal, all four justices of the
Amarillo Court of Appeals signed agreements to be adjunct
professors at Texas Tech School of Law. On September 22,
2014, the Amarillo Court of Appeals issued an opinion that
rendered judgment that Phelan take nothing on his libel
claim. That reduced the damages from $590, 000 to $15, 000.
Texas Tech University paid the judgment on Norville's
of 2015, Phelan learned that Texas Tech School of Law hired
the judge and justices as adjunct professors, and Phelan
filed the bill of review on June 26, 2015 seeking to set
aside the rulings that reduced his recovery. The trial court
denied the bill of review, and Phelan appealed to the
Amarillo Court of Appeals. The case was transferred to this
Court for review.
Bill of Review
first issue, Phelan argues that the trial court erred in
denying his bill of review because he proved the three
required elements. In the second issue, Phelan contends that
the trial court erred in denying his bill of review because
he required Phelan to show "conscious" wrongdoing.
In the fifth issue, Phelan argues that the trial court erred
when it left "undisturbed" the judgment in the
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 motion for new trial or appeal.
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004);
Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979).
To set aside a judgment by bill of review, a petitioner must
ordinarily plead and prove (1) a meritorious claim or defense
to the cause of action alleged to support the judgment, (2)
that he was prevented from making by the fraud, accident, or
wrongful act of his opponent, or official mistake, and (3)
unmixed with any fault or negligence of his own. Caldwell
v. Barnes, 154 S.W.3d at 96; Baker v.
Goldsmith, 582 S.W.2d at 406-7.
review of a trial court's ruling on a bill of review, we
indulge every presumption in favor of the trial court's
determination, and will not disturb it absent an abuse of
discretion. Singh v. Trinity Marketing & Distributing
Company, Inc., 397 S.W.3d 257, 262 (Tex.App.-El Paso
2013, no pet.). A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner, or without
reference to guiding rules and principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
trial court found that Phelan did not meet the second
requirement for a bill of review: that he was prevented from
making a meritorious claim by the fraud, accident, or
wrongful act of his opponent or by official mistake. Phelan
argues on appeal that he showed wrongdoing, or official
mistake by providing evidence that the judge and justices
were hired by Texas Tech School of Law prior to rendering
decisions favorable for Norville. The trial court found that
there was "no evidence or other reasonable basis to
conclude that the opportunity to supplement income for
services rendered over a semester was sufficient to cause
these judges to violate their oaths of office." After
reviewing the entire record, we agree that Phelan did not
establish that he was prevented from making a meritorious
claim based upon the wrongdoing or official mistake of the
judges. The record does show that the trial judge as well as
the appellate justices were hired as adjunct professors by
Texas Tech School of Law. However, that evidence alone does
not show wrongdoing or official mistake by the judge or
justices. There is nothing in the record to suggest that the
acceptance of the offer from Texas Tech School of Law to
serve as adjunct professors influenced the decisions in the
argues that the trial court imposed an additional standard to
require him to show "conscious" wrongdoing in the
hiring of the judges. In its findings of fact, the trial
court stated "No conscious wrongdoing. Any suggestion of
conscious wrongdoing (by the University or by the judges) is