Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nixon v. Attorney General of Texas

Court of Appeals of Texas, Fifth District, Dallas

June 21, 2018

TRACY NIXON, Appellant
v.
ATTORNEY GENERAL OF TEXAS, TEXAS COMPTOLLER OF PUBLIC ACCOUNTS, TEXAS HOUSE OF REPRESNTATIVES, GOVERNOR OF TEXAS, AND KIMBERLYN RHYNES, Appellees

          On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-01234

          Before Justices Lang, Fillmore, and Schenck

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         Tracy Nixon appeals the trial court's decision denying his petition for bill of review, which sought to set aside a 2012 order enforcing his obligation to pay child support to Kimberlyn Rhynes. In several issues, Nixon asserts the trial court erred by denying his right to a jury trial, refusing to grant a default judgment against Rhynes, converting a pre-trial hearing into a hearing on the merits, failing to set a docket control order, striking Nixon's third amended petition, permitting the Attorney General to file a supplemental answer, denying Nixon's motion to transfer venue, failing to make findings of fact and conclusions of law in connection with an order declaring Nixon to be a vexatious litigant, denying Nixon's motion for new trial, and failing to sever claims in this case. Nixon also urges that the cumulative errors merited reversal of the trial court's order. We affirm.

         Background

         In 2001, the trial court ordered Nixon to pay child support to Rhynes, his children's mother. Nixon failed to pay as ordered, and in 2005, the trial court rendered an arrearage judgment against him ("2005 Order"). Nixon continued to fail to pay the ordered amounts of child support. The Attorney General filed a motion on behalf of Rhynes to enforce the 2005 Order. While the proceeding was pending, Nixon filed for voluntary bankruptcy protection and notified the trial court of that filing. The trial court did not stay the proceedings, and instead on April 23, 2012, the trial court entered an order rendering another arrearage judgment, finding him in contempt, committing him to the county jail for 180 days, and suspending his barber's license until further order of the court ("2012 Order").

         Nixon filed a petition for writ of habeas corpus, which this Court denied. See In re Nixon, 05-12-01387-CV, 2013 WL 873818, at *1 (Tex. App.-Dallas Jan. 3, 2013, orig. proceeding) (mem. op.). Nixon then appealed the 2012 Order to this Court, arguing the trial court should have stayed the proceedings pending the outcome of his bankruptcy. See Nixon v. Office of Attorney Gen. of Texas, 05-12-01065-CV, 2013 WL 4781535, at *1 (Tex. App.-Dallas Aug. 5, 2013, pet. denied) (mem. op.). We resolved Nixon's issues against him and affirmed the trial court's judgment. See id.

         In 2016, Nixon filed a petition for a bill of review to set aside the 2012 Order, naming the Attorney General as a defendant. He later amended his petition to add the Governor of Texas, the Texas House of Representatives, and the Texas Comptroller of Public Accounts as defendants.[1]On the Attorney General's motion and after conducting a hearing, the trial court signed an order that declared Nixon to be a vexatious litigant and required him to obtain permission from a local administrative judge prior to filing new litigation and to provide a $300 security.

         Nixon filed a third amended petition, adding a claim for $10 million in damages. The Attorney General moved to strike Nixon's third amended petition as untimely and because Nixon failed to comply with the order declaring him to be a vexatious litigant by failing to obtain permission from the local administrative judge prior to filing new litigation. The trial court signed an order striking Nixon's third amended petition.

         The trial court conducted two further hearings, at which Nixon argued the trial court erred in issuing the 2012 Order, which he urged was void because it was issued in violation of the automatic stay imposed during the bankruptcy proceedings. At the conclusion of the second hearing, the trial court signed an order denying the petition for bill of review. Nixon filed this appeal.

         Discussion

         We liberally construe pro se pleadings and briefs; however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Id. at 212. The law is well established that, to present an issue to this Court, a party's brief shall contain, among other things, a concise, non-argumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex.R.App.P. 38.1. Bare assertions of error, without argument or authority, waive error. In re N.E.B., 251 S.W.3d at 212. When a party, despite notice and an opportunity to cure, fails to adequately brief a complaint, he waives the issue on appeal. See Bertaud v. Wolner Indus., No. 05-15-00620-CV, 2017 WL 1360197, at *2 (Tex. App.-Dallas Apr. 12, 2017, pet. dism'd) (mem. op.).

         The record shows that after Nixon filed his appellate brief, this Court notified him of several briefing deficiencies. Nixon filed a motion requesting the appeal be allowed to proceed on his uncorrected brief, which this Court granted. The Attorney General filed a responsive brief on behalf of its own office, the Comptroller, and the House of Representatives. The Attorney General was able to discern and address eleven issues in Nixon's brief. Applying to Nixon's brief the liberal construction accorded to him under the appellate rules and our prior authority, we construe Nixon's brief to present fifteen issues.

         I. Automatic Stay

         In his first issue, Nixon urges the trial court in the underlying case erred by ordering him to pay child support and by ordering his barber's license suspended in violation of the automatic stay imposed by the ongoing bankruptcy proceeding.

         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 a motion for new trial or appeal. In re M.C.B., 400 S.W.3d 630, 633-34 (Tex. App.-Dallas 2013, no pet.). The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must be accorded finality. Transworld Fin. Serv. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.1999) (per curiam).

         To set aside a judgment by bill of review, the petitioner must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part. In re M.C.B., 400 S.W.3d at 633-34. A bill of review may not be used as an additional remedy by a litigant who has made a timely but unsuccessful appeal. McIntyre v. Wilson, 50 S.W.3d 674, 679 (Tex. App.-Dallas 2001, pet. denied). As noted above, Nixon filed both an unsuccessful petition for writ of habeas corpus and an unsuccessful appeal of the 2012 Order. Further, the authority he relies upon here existed at the time of both proceedings in this Court. See In re Small, 286 S.W.3d 525, 529 (Tex. App.-Houston [14th Dist.] 2009), orig. proceeding).[2] Thus, bill of review relief is not available to Nixon. See id.

         Accordingly, we overrule Nixon's first issue.

         II. Default Judgment

         We construe Nixon's second and fifth issues to argue the trial court erred by denying him a default judgment against the appellees who failed to appear at trial. He argues Rhynes failed to file an answer or to appear at the trial conducted on April 19, 2017. Nixon also urges that other appellees failed to appear at trial. The record reflects Nixon filed and later withdrew a motion for no-answer default judgment against the Attorney General. The record contains no other motion for default judgment other than the one asserted against Rhynes. Accordingly, he has not preserved any issue regarding a default judgment against any appellee other than Rhynes. See Tex. R. App. P. 33.1(a)(1) (requiring party to make complaint to trial court by timely, request, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.