Appeal from the 387th District Court Fort Bend County, Texas
Trial Court Case No. 15-DCV-226932.
consists of Chief Justice Radack and Justices Keyes and
MEMORANDUM OPINION ON REHEARING
MICHAEL MASSENGALE JUSTICE.
Appellant Howard Grant and appellee Ariann M. Grant Pradia
have been married, divorced, remarried, and divorced again.
Howard appeals from the denial of a bill of review regarding
their first divorce decree from 2011. He contended that he
had no notice of the trial setting and did not receive notice
of the entry of default judgment because Ariann gave the
trial court an incorrect last known address for him. Ariann
denied the allegations and asserted that the bill of review
was barred by the four-year residual statute of limitations.
On appeal, Howard raises four issues, arguing that the
statute of limitations should have been tolled because he
proved extrinsic fraud and that the court erred by denying
his bill of review.
and Ariann were married in 1994. In 2010, Ariann sued for
divorce. Howard answered and filed a counterpetition for
divorce. In spite of this, they continued to live in the same
house in Missouri City. Meanwhile, before the divorce was
finalized, Howard was convicted of health-care fraud and
sentenced to three years in prison. An order dated February
25, 2011 required him to surrender to federal prison in
Beaumont on March 15, 2011.
to testimony from Vicki Pinak, the attorney who represented
Ariann in the first divorce, the trial date was set to ensure
that it occurred before Howard had to leave for federal
prison, and that issue was discussed with the trial judge.
Trial was set for March 8, 2011. A notice of trial, which
stated the date, time, and location of trial, was sent to
Howard, who was representing himself in the divorce. The
certificate of service on the notice of trial stated that a
"true and correct copy of the foregoing instrument was
sent to Howard Grant by Certified Mail . . . Return Receipt
Requested, and U.S. Regular Mail, on this the 15th day of
appeared for trial, but Howard did not. At the close of
evidence in the first divorce proceeding, the trial court
awarded Ariann property that Howard now contends was his
separate property. Ariann did not claim that she had a
community interest in the property. The record on appeal does
not show when the court rendered judgment, but on April 5,
2011, after Howard reported to prison, a notice of the trial
court's entry of a final decree of divorce was sent to
him at the Missouri City address. Neither party notified the
trial court of Howard's change of address. Howard
acknowledges that he learned of the first divorce decree no
later than a year after it was entered.
year after the first divorce, Howard and Ariann remarried.
While Howard was incarcerated, Ariann sold, through a
trustee, some of the property awarded to her in the first
divorce. Howard now contends that property was his separate
property. In late 2015, Howard and Ariann divorced for a
second time. After entry of the second divorce decree, on
October 7, 2015, Howard filed a bill of review assailing the
first divorce decree. Ariann filed a motion for summary
judgment arguing that the bill of review was barred by
limitations and that Howard failed to use due diligence to
set aside the default judgment in the first divorce.
trial court held a hearing on the bill of review. Ariann
testified that Howard "opted not to show up" for
trial. She testified that Howard had actual notice of the
trial setting because her attorney had conducted a deposition
at their home the prior week. Ariann testified, "He was
properly notified, whether he signed the green card or not.
Ms. Pinak came to our home, she did a deposition with him . .
. . Howard was fully aware that we were going to trial."
She also said, "He used the excuse that he had a home
monitor on his ankle and he couldn't go. Okay. That may
be true, but you can get permission to do everything else.
You could have appeared. So I can't respond why he
didn't appear; and I don't know why he didn't
sign the green card."
addition, both Ariann and her attorney testified that neither
of them represented to the court that the property in
question was community property. The attorney explained the
trial court's award of the property to Ariann, saying
that Howard was not "there to put on evidence."
alleged that at the time of the first divorce's trial
setting, he was living in the same house and sleeping in the
same bed as Ariann. He asserted that Ariann did not inform
him of the trial date, and her actions misled him to believe
that she was not pursuing the divorce. However, Howard did
not support this assertion with testimony or other evidence.
trial court denied the bill of review and a subsequent motion