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In re O.C.

Court of Appeals of Texas, Twelfth District, Tyler

March 29, 2019

IN THE INTEREST OF O.C. AND O.C, CHILDREN

          APPEAL FROM THE 321ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS (Tr.Ct.No. 18-0234-D)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice.

         B.J.S. appeals the trial court's summary judgment granted in favor of J.H. and K.H. and denying his petition for bill of review.[1] He presents three issues on appeal. We affirm.

         Background

         B.J.S. and K.C. are the parents of O.C. and O.C.1.[2] 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.

         The 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.

         On 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.

         Motion for Summary Judgment

         In his 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 negligence.

         Standard of Review

         The 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.).

         Applicable Law

         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. 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. ...


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