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Phelan v. Norville

Court of Appeals of Texas, Tenth District

July 26, 2017

R. SCOTT PHELAN, Appellant
v.
H. SCOTT NORVILLE, Appellee

         From the 237th District Court Lubbock County, Texas Trial Court No. 2015-516, 400

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins [*] (Chief Justice Gray dissenting with note)

          MEMORANDUM OPINION

          AL SCOGGINS Justice

         R. 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.

         Background Facts

         Phelan 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.

         The 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 behalf.

         In May 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

         In the 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 prior case.

         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 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.

         In our 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. 1985).

          The 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 underlying case.

         Phelan 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 ...


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