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Bechem v. Reliant Energy Retail Services, LLC

Court of Appeals of Texas, First District

August 29, 2019

REGENIA BECHEM, Appellant
v.
RELIANT ENERGY RETAIL SERVICES, LLC AND COMERICA BANK, Appellees

          On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Case No. 1071269

          Panel consists of Chief Justice Radack and Justices Hightower and Countiss.

          MEMORANDUM OPINION ON REHEARING

          SHERRY RADACK CHIEF JUSTICE

         Appellant, Regenia Bechem, filed a petition for bill of review, asserting that she did not receive notice of the trial court's final judgment, entered after a bench trial, and seeking to restart the appellate timelines.[1] She also filed a motion for summary judgment, asserting that she established the elements of her bill of review as a matter of law. In two issues on appeal, Bechem contended that the trial court erred in denying her motion for summary judgment and dismissing her bill of review. On June 20, 2019, we issued our memorandum opinion and judgment affirming the trial court's judgment. Bechem has filed a motion for en banc reconsideration. See Tex. R. App. P. 49.7. Treating the en banc motion as a request for panel rehearing, [2] we deny rehearing but withdraw our opinion of June 20, 2019, vacate our judgment of the same date, and substitute this opinion and judgment in their stead. Appellant's motion for en banc reconsideration of our prior opinion is moot.[3]

         We affirm.

         Background

         In a prior suit, appellee Reliant Energy Retail Services, LLC ("Reliant") obtained a money judgment against Bechem. Bechem v. Reliant Energy Retail Servs., LLC, No. 01-16-00189-CV, 2017 WL 976069, at *1 (Tex. App.-Houston [1st Dist.] Mar. 14, 2017, pet. denied) (mem. op.). Reliant filed an application for a post-judgment writ of garnishment directed at Bechem's bank, appellee Comerica Bank, which the trial court granted. Id. Comerica answered and identified a joint checking account that Bechem held with her mother. Id. Bechem moved to dissolve the writ, asserting that the account was exempt from seizure because it constituted exempt personal property and a "convenience" account established for the benefit of her mother. Id. Subsequently, Bechem did not appear at the hearing. Id. Reliant and Comerica appeared, announced that they had reached a settlement between them, and requested entry of judgment. Id. The trial court entered a judgment awarding Reliant certain funds from Bechem's joint account in satisfaction of its judgment and awarding Comerica its attorney's fees. Id.

         On appeal, the court rejected the trial court's characterization of the judgment as "agreed" because only Reliant and Comerica, and not Bechem, had so agreed. Bechem v. Reliant Energy Retail Servs., LLC, 441 S.W.3d 839, 845-46 (Tex. App.- Houston [14th Dist.] 2014, no pet.). Rather, the court characterized the judgment as a post-answer default judgment. Id. at 846. And, because no record was taken of the trial, and thus it could not evaluate whether the evidence supported the judgment, the court of appeals reversed and remanded for further proceedings. Id.

         On August 14, 2015, after a bench trial, the trial court entered judgment in Bechem's favor, dissolved the writ of garnishment, and released Comerica as garnishee. Bechem, 2017 WL 976069, at *1. However, the trial court denied Bechem's request for an award of appellate attorney's fees, which she based on having prevailed on her appeal to the Fourteenth Court of Appeals. Id.

         On December 14, 2015, Bechem filed the underlying petition for bill of review, asserting that she did not receive notice of the trial court's August 14, 2015 judgment until November 25, 2015. Id. Bechem asserted that the delay deprived her of an opportunity to appeal the trial court's denial of her request for appellate attorney's fees. Id. Seven days later, on December 18, 2015, the trial court issued a Notice of Disposition Deadline and Notice of Intent to Dismiss, stating that the bill-of-review proceeding would be dismissed for want of prosecution on February 22, 2016, without further notice, if the matter were not set and heard before that date. Id. at *2. Bechem asked the trial court to retain the case, arguing that, because a bill of review is a new and independent lawsuit, all rules of procedure and evidence apply. Id. She asserted that both sides needed time for discovery and that the trial court was required to issue a docket control order. Id. at *2-3.

         On January 4, 2016, Bechem filed a motion for summary judgment, asking the trial court to grant her bill of review and restart the appellate timelines. On January 29, 2016, the trial court denied Bechem's summary-judgment motion, finding that there existed a genuine issue of material fact. Subsequently, the trial court dismissed the case for want of prosecution. Id. at *2.

         On appeal to this Court, Bechem contended that the trial court erred by "prematurely dismissing" her bill-of-review proceeding. Id. We noted that the record did not reflect that Bechem had failed to appear for a hearing or trial. Id. at *3. The record showed that the case had been on file for 2 months and 11 days, which was significantly less than the 18 months provided for in the applicable local rules. Id. Further, while the case was pending, Bechem had filed motions for summary judgment and to retain the case. Id. We held that the trial court erred in dismissing Bechem's bill-of-review proceeding for want of prosecution. Id. We reversed the trial court's dismissal and remanded the case for further proceedings. Id. We did not reach whether the trial court erred in denying Bechem's motion for summary judgment. Id. Our mandate issued on December 15, 2017.

         On remand, the trial court, on June 25, 2018, issued a Notice of Disposition Deadline and Notice of Intent to Dismiss, stating that the disposition deadline for Bechem's bill-of-review proceeding was at 1:00 p.m. on August 27, 2018. The notice instructed: "If you have not set and had this matter heard before the disposition deadline this case WILL BE DISMISSED FOR WANT OF PROSECUTION on [that] date without further notice. Hearing dates may be obtained from the court clerk at . . . ." In her response, Bechem asserted only that, on March 1, 2018, she had filed an Amended Notice of Submission regarding her previously filed motion for summary judgment and that the trial court had not yet ruled on her motion for summary judgment.

         On September 5, 2018, the trial court dismissed the case for want of prosecution, finding that Bechem, although timely served with notice, had failed to appear on August 27, 2018. The trial court further found that it had previously, on January 29, 2016, issued an order denying Bechem's motion for summary judgment. And, Bechem had not filed any new or amended motions since that date and did not attach any motions to her Amended Notice of Submission. Thus, it ...


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