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Pelloat v. Bolenbaucher

Court of Appeals of Texas, Ninth District, Beaumont

May 24, 2018

JAMES ALLEN PELLOAT, Appellant
v.
KATHERINE MCKAY BOLENBAUCHER, Appellee

          Submitted on April 10, 2018

          On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-225, 282

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice

         James Allen Pelloat appeals the trial court's denial of his bill of review challenging the judgment in his divorce from Katherine McKay Bolenbaucher. We affirm the trial court's judgment denying Pelloat's bill of review.

         Background

         Pelloat and Bolenbaucher married in 1987; Bolenbaucher filed for divorce on June 19, 2009, in trial court case number F-206, 437. See Pelloat v, McKay, No. 09-11-00643-CV, 2012 WL 5954114, at *1 (Tex. App.-Beaumont Nov. 29, 2012, pet. denied) (mem. op.) (Pelloat I). Pelloat participated in a jury trial of the contested issues. The decree was signed on April 25, 2011, but the trial court found Pelloat first obtained actual notice that a decree had been signed on July 11, 2011, when he was notified by the district clerk that a judgment nunc pro tunc had been signed on that date. Id. On August 16 and 17, 2011, the trial court signed additional judgments nunc pro tunc. Id. Pelloat filed a notice of appeal on November 9, 2011. Id. In his appeal, we held that Pelloat timely perfected an appeal only as to the August 16 and 17, 2011 judgments. Id. Pelloat presented no challenges unique to the judgments nunc pro tunc. Id. We affirmed the trial court's judgment. Id. at *2.

         In 2015, the trial court signed a qualified domestic relations order (QDRO). See Pelloat v. McKay, No. 13-15-00456-CV, 2017 WL 2375762, at *1 (Tex. App.- Corpus Christi June 1, 2017, no pet.) (mem. op.) (Pelloat II). Pelloat participated in the hearing. Id. at *2. Pelloat's appeal from the QDRO was transferred pursuant to a docket equalization order. Id. at *1 n.1. The Corpus Christi Court of Appeals held: (1) the trial court did not abuse its discretion by moving forward with the QDRO hearing despite Pelloat's request to conduct discovery; (2) Pelloat waived his complaint regarding insufficient notice of the subject of the telephone hearing; (3) the trial court did not abuse its discretion by applying the appropriate formula to Pelloat's retirement account; (4) Pelloat could not collaterally attack the property division in the QDRO appeal; (5) Pelloat failed to preserve his complaints concerning actions taken by his ex-wife's attorney with respect to the QDRO. Id. at *2-4.

         On October 16, 2015, the case that is the subject of this appeal commenced with the filing by Pelloat of a petition for a bill of review in trial cause number F-225, 282. In the amended petition that was the live pleading before the trial court when it denied the bill of review, Pelloat alleged that he did not receive a copy of the signed divorce decree until August 24, 2011. Pelloat alleged that he was deprived of his right to appeal by the failure of his ex-wife's counsel to provide a copy of the decree and the trial court clerk's failure to notify him that the judgment had been signed. See generally Tex. R. Civ. P. 21a(a), 306a.3. The bill of review petition identified and described errors that occurred in the divorce case.

         Pelloat requested a trial date for his bill of review in June 2017. On August 3, 2017, the trial court conducted a hearing on Pelloat's bill of review petition. Pelloat, an inmate, participated in the hearing by telephone, and Bolenbaucher appeared in court through counsel. Pelloat summarized the allegations contained in his unverified petition without producing any documents or formal testimony to support his bill of review. Furthermore, he did not produce a reporter's record of the divorce proceedings for the judge's consideration in the bill of review.

         At the conclusion of the hearing, the trial court signed an order denying the bill of review. At Pelloat's request, the trial court made findings of fact and conclusions of law. The Court failed to find any extrinsic fraud or official mistake, found the bill of review was filed more than four years after the discovery of the alleged fraud, and ruled that all issues raised in the bill of review are barred by res judicata. Pelloat appealed to this Court.

         Bill of Review

         A bill of review is an equitable, independent action brought by a party who seeks to set aside a judgment that is no longer subject to challenge by a 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). A bill of review petitioner who participated in the trial must plead and prove: (1) a meritorious ground of appeal exists, (2) that the party was prevented from presenting in a motion for new trial or an ordinary appeal by the fraud, accident, or wrongful act of the opposing party, or by an official mistake or misinformation, and (3) that was unmixed with any fault or negligence of the petitioner. Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 243 (Tex. 1974). To establish the first element, a meritorious ground of appeal is one that probably would have caused the judgment to be reversed had it been presented to the appellate court. Id. at 245-46. Regarding the second element, a bill of review may be predicated on the trial court clerk's failure to send the required notice. Id. at 245; see also Tex. R. Civ. P. 306a.3. Regarding the third element, a party's failure to pursue a direct appeal when one is available is negligence. Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004). Furthermore, the bill of review petitioner must show that he diligently pursued all adequate legal remedies. Petro-Chem., 514 S.W.2d at 245-46. Availability of a legal remedy precludes relief by bill of review. Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980).

         Arguments ...


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