Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-15-004159, HONORABLE DARLENE BYRNE, JUDGE
Chief Justice Rose, Justices Goodwin and Bourland
OLSON BOURLAND, JUSTICE
Rawston Headifen appeals the district court's judgment
denying his petition for bill of review. Headifen contends
that the trial court erred because he demonstrated that he
had a meritorious ground of appeal, which he was prevented
from presenting by official mistake, unmixed with fault or
negligence on his part. Because we hold that Headifen failed
to exercise due diligence in pursuing his available legal
remedies, we will affirm the district court's judgment.
a bench trial, Headifen and appellee Vanessa Harker were
divorced on May 7, 2015, upon the trial court's signing
of the final decree of divorce. In the decree, the trial
court found that Harker had incurred more than $250, 000 in
attorneys' fees over the four-year divorce proceedings,
and awarded Harker a judgment in the amount of $50, 000 for
attorneys' fees, to be paid on or before July 7, and
another $10, 000 in the event that Headifen filed an appeal,
to be paid on the date the appeal was filed. Headifen timely
filed a motion for new trial on June 8, 2015, which
(according to his brief) objected to the award of
attorneys' fees. Headifen also requested findings of fact
and conclusions of law, which the trial court issued on June
23, 2015. With respect to factors considered in calculating
the amount of the award of attorneys' fees, the findings
included: (1) the fact that Headifen filed more than 27
pleadings in the divorce proceeding; (2) the evidence
presented that Headifen told friends that he would
"'run Harker out of money'" in the suit;
(3) the high volume of emails Headifen sent to Harker's
counsel, which counsel for Harker had to read and to which
she had to respond; (4) the threatening tone of some of the
emails from Headifen to counsel for Harker; and (5) the
evidence presented of an overall pattern of harassing
behavior by Headifen directed at prolonging the litigation
and draining Harker's resources.
30, 2015, while his motion for new trial was pending,
Headifen filed a motion for recusal, claiming that the trial
judge, Judge Orlinda Naranjo, demonstrated a clear bias
against him, as indicated in her findings regarding
attorneys' fees. Judge Naranjo, who had been specially
assigned to the case, referred the motion for recusal to the
regional presiding judge, who then referred the motion to
Judge Dan Mills for a ruling. On July 21, at the expiration
of 75 days following the entry of final judgment,
Headifen's motion for new trial was overruled by
operation of law. Headifen asserts in his brief that he
attempted on July 30 to set his motion for new trial for
hearing on the central docket, but he was told that because
Judge Naranjo had been specially assigned to the case, the
hearing could not take place until the motion seeking her
recusal was addressed. On August 12, Judge Mills heard and
denied Headifen's motion for recusal. On August 24, at
the hearing on Headifen's motion for new trial, Judge
Naranjo entered an order striking Headifen's
motion because thirty days had elapsed since the
motion was overruled by operation of law, so the court no
longer had plenary power to rule on the motion. Headifen
filed an appeal to this Court on August 28, 2015. We
dismissed the appeal for want of jurisdiction because it was
not timely filed. See Headifen v. Harker, No.
03-15-00552-CV, 2015 WL 7422962, at *1 (Tex. App.-Austin Nov.
17, 2015, no pet.) (mem. op.) ("The date that the motion
for new trial is heard or decided has no bearing on the
deadline for filing a notice of appeal.").
September 21, 2015, Headifen filed a petition for bill of
review. Headifen argued that Judge Naranjo made an official
mistake in her referral of Headifen's motion to the
presiding judge by stating in her referral letter that
"there are no pending issues before [the court] at this
time." This, Headifen claims, caused the presiding judge
to not act promptly in setting the hearing on the motion for
recusal, which caused the delay that ultimately resulted in
Headifen's motion for new trial being stricken. The trial
court denied Headifen's petition for bill of review. This
presents a single compound issue on appeal-the trial court
erred in denying his petition for bill of review because he
satisfied the requisite bill-of-review elements. Headifen
maintains that the trial judge's official mistake,
unmixed with any fault or negligence on Headifen's part,
prevented him from presenting his meritorious appeal.
of review is an equitable proceeding to set aside a judgment
that is no longer appealable or subject to a motion for new
trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.
1979); Schwartz v. Jefferson, 520 S.W.2d 881, 889
(Tex. 1975). A bill of review is proper where a party has
exercised due diligence to prosecute all adequate legal
remedies against the judgment it seeks to set aside, and at
the time the bill of review is filed, no such adequate legal
remedy remains available because, through no fault of the
petitioner, fraud, accident, or official mistake precluded
presentation of a meritorious claim. Wembley Inv. Co. v.
Herrera, 11 S.W.3d 924, 927 (Tex.1999). To obtain relief
by a bill of review, the petitioner must plead and prove to
the trial court three elements: (1) a meritorious ground for
appeal; (2) which he was prevented from making through fraud,
accident, or a wrongful act of the opposing party or official
mistake; (3) unmixed with any fault or negligence by the
petitioner. Caldwell v. Barnes, 154 S.W.3d 93, 96
(Tex. 2004); Zeigler v. Zeigler, No. 02-10-00146-CV,
2011 WL 2989003, at *2 (Tex. App.-Fort Worth July 11, 2011,
no pet.) (mem. op.). The grounds upon which a bill of review
can be obtained are narrow because the procedure conflicts
with the fundamental policy that judgments must become final
at some point. Alexander v. Hagedorn, 226 S.W.2d
996, 998 (Tex. 1950); Crouch v. McGaw, 138 S.W.2d
94, 96 (Tex. 1940) (noting that a bill of review requires
"something more than injustice").
review the grant or denial of a bill of review under an
abuse-of-discretion standard, indulging every presumption in
favor of the trial court's ruling. Moore v.
Brown, 408 S.W.3d 423, 432 (Tex. App.-Austin 2013, pet.
denied). The trial court abuses its discretion if it rules in
an unreasonable or arbitrary manner, or without reference to
any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985);
Morris v. O'Neal, 464 S.W.3d 801, 806 (Tex.
App.-Houston [14th Dist.] 2015, no pet.). Where, as here,
there are no findings of fact or conclusions of law in the
record, we will "affirm the trial court's judgment
on any legal theory supported by the evidence."
Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex.
App.-Austin 2004, no pet.) (citing Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).
stated above, a bill-of-review petitioner must have exercised
due diligence in pursuing all appropriate legal remedies
against the former judgment. See Wembley, 11 S.W.3d
at 927. If reasonable legal remedies were available and
disregarded, relief by bill of review is generally
unavailable. See id. The required due diligence is
separate and distinct from the bill-of-review elements.
Perdue v. Patten Corp., 142 S.W.3d 596, 606 (Tex.
App.-Austin 2004, no pet.). The petitioner's due
diligence in pursuing available legal remedies is judged by
the objective standard of what "prudent and careful men
would ordinarily use in their own cases of equal
importance." See In re A.L.H.C., 49 S.W.3d 911,
916 (Tex. App.-Dallas 2001, pet. denied).
Texas Supreme Court has established that where a defendant
fails to avail himself of an appeal, he is not entitled to
relief by bill of review. French v. Brown, 424
S.W.2d 893, 895 (Tex. 1967). In French, a contract
action was disposed of by summary judgment. Alleging he did
not have notice of the motion for summary judgment or its
hearing setting, petitioner filed a motion for new trial,
which was subsequently overruled by operation of law. The
court held that a bill of review was unavailable where the
petitioner had timely filed a motion for new trial but failed
to appeal its denial by operation of law. Id.
Similarly, in Narvaez v. Maldonado, the trial court
entered a default decree of divorce that ordered Narvaez to
pay child support. Narvaez, 127 S.W.3d at 316.
Narvaez filed a motion for new trial that was subsequently
overruled by operation of law. Id. Though evidence
did not show whether the motion was timely, this Court held
that Narvaez had not exercised due diligence in exhausting
his legal remedies because he had not appealed the judgment
after the motion was overruled by operation of law (if motion
was timely filed) or pursued a restricted appeal (if not
timely filed). Id. at 321. Similarly, in
Zeigler, petitioner's motion for new trial had
been granted on condition of petitioner's payment of
attorneys' fees but was overruled by operation of law
because the petitioner failed to pay the attorneys' fees.
See Zeigler, 2011 WL 2989003, at *3. The Dallas
Court of ...