Court of Appeals of Texas, Twelfth District, Tyler
IN THE INTEREST OF O.C. AND O.C, CHILDREN
FROM THE 321ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen Chief Justice.
appeals the trial court's summary judgment granted in
favor of J.H. and K.H. and denying his petition for bill of
review. He presents three issues on appeal. We
and K.C. are the parents of O.C. and O.C.1. The Department of
Family and Protective Services (the Department) filed an
original petition for protection of a child, for
conservatorship, and for termination on May 12, 2015
regarding O.C. The Department was named temporary sole
managing conservator of O.C. that day. The Department filed
an original petition for protection of a child, for
conservatorship, and for termination on March 17, 2016,
regarding O.C.1, who was born on March 12, 2016. The
Department was appointed sole managing conservator of O.C.1
the same day. In July 2016, J.H. and K.H., the children's
foster parents, filed a petition for intervention for
conservatorship of the children.
parties attended two different mediations and reached a
settlement agreement during the June 13, 2017, mediation.
B.J.S. also executed affidavits for voluntary relinquishment
of his parental rights to both O.C. and O.C.1. At a hearing
on June 14, 2017, B.J.S. testified that he knowingly, freely,
and voluntarily relinquished his parental rights to O.C. and
O.C.1. The court terminated B.J.S.'s parental rights on
August 4, 2017.
February 1, 2018, B.J.S. filed a petition for bill of review
requesting the trial court set aside the voluntary
relinquishments of parental rights to O.C. and O.C.1. B.J.S.
asserted that J.H. and K.H. induced him into relinquishing
his parental rights by promising that B.J.S. would maintain
contact with O.C. and O.C.1. if he relinquished his rights,
when they never planned to keep that promise. K.H. and J.H.
filed a traditional motion for summary judgment on grounds
that B.J.S. could not meet the elements for a bill of review.
The trial court granted that motion and denied the petition
for bill of review. Specifically, the trial court found
"that there is no genuine issue of any material facts
regarding the elements of a Bill of Review, and that [B.J.S.]
was negligent and is not entitled to a Bill of Review as a
matter of law." This appeal followed.
for Summary Judgment
three issues, B.J.S. argues that a fact issue exists as to
whether (1) he has a meritorious defense; (2) he was
prevented from presenting a meritorious defense; and (3) his
failure to assert a meritorious defense is due to his own
standard for reviewing a traditional summary judgment is
well-established. The movant for traditional summary judgment
bears the burden of showing the absence of a genuine issue of
material fact and an entitlement to judgment as a matter of
law. Tex.R.Civ.P. 166a(c). When the movant seeks summary
judgment on a claim in which the nonmovant bears the burden
of proof, the movant must either negate at least one
essential element of the nonmovant's cause of action or
prove all essential elements of an affirmative defense.
See Randall's Food Mkts., Inc. v. Johnson, 891
S.W.2d 640, 644 (Tex. 1995). Once the movant has established
a right to summary judgment, the burden shifts to the
nonmovant to respond to the motion and present the trial
court with any issues that would preclude summary judgment.
See City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678-79 (Tex. 1979). Generally, a trial court may
not consider summary judgment evidence not referenced in or
incorporated into the motion. Fed. Home Loan Mortg. Corp.
v. Pham, 449 S.W.3d 230, 236 (Tex. App.-Houston [14th
Dist.] 2014, no pet.).
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.
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004)
(per curiam). "Although it is an equitable proceeding,
the fact that an injustice has occurred is not sufficient to
justify relief by bill of review." Wembley Inv. Co.
v. Herrera, 11 S.W.3d 924, 927 (Tex. ...