Court of Appeals of Texas, Ninth District, Beaumont
Submitted on April 10, 2018
Appeal from the 279th District Court Jefferson County, Texas
Trial Cause No. F-225, 282
McKeithen, C.J., Kreger and Horton, JJ.
CHARLES KREGER Justice
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.
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.
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.
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.
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.
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.
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).