Opinion
No. 05-04-01388-CV
Opinion Filed February 23, 2006.
On Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-970.
Reverse and Remand.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Rudolf W. Gunnerman, RWG, Inc., A-55, L.P. and A-55, Inc., appeal the trial court's judgment denying their bill of review challenging a no-answer default judgment against them. In two issues, appellants complain of charge error and the factual sufficiency of the evidence to support the jury's failure to find that they exercised due diligence. For the reasons set forth below, we conclude the jury charge contained an improper instruction which constituted reversible error. Accordingly, we reverse the trial court's judgment and remand for further proceedings.
This is the second appeal of this case to this Court. Because the facts of the first appeal are necessary to an understanding of the dispositive issue here, we will recount them briefly. Basic Capital Managment, Inc. (BCM) sued appellants and obtained a no-answer default judgment. Almost eleven months later, appellants filed a petition for bill of review to vacate the default judgment. During the course of that litigation, the trial court granted summary judgment in appellants' favor on the issue of appellants' entitlement to relief by bill of review. After a trial on the merits, the trial court ultimately entered judgment that BCM recover $100,000 from appellants. See Gunnerman v. Basic Capital Management, Inc., 106 S.W.3d 821, 823-24 (Tex.App.-Dallas 2003, pet. denied). Both sides appealed.
In that appeal, BCM contended the trial court erred in granting appellants' motion for summary judgment and setting aside the default judgment. We agreed with BCM, concluding there were fact issues as to whether appellants were diligent in exhausting all legal remedies, including whether appellants could have filed a restricted appeal under Texas Rule of Appellate Procedure 30. We therefore reversed the trial court's judgment and remanded the case to the trial court for further proceedings.
On remand, a jury trial was held on whether appellants were entitled to a bill of review remedy. The sole issue tried was whether appellants exercised due diligence in availing themselves of all legal remedies against the default judgment. As part of the question, the trial court instructed the jury, in accordance with our previous opinion, that a restricted appeal is a legal remedy available to set aside a default judgment. To the question of whether appellants exercised due diligence, the jury answered "No." In accordance with the jury's answer, the trial court rendered a final judgment denying appellants' bill of review and leaving the default judgment in place. This second appeal ensued. In their first issue, appellants assert the judgment should be reversed because the trial court erred in instructing the jury about the availability of a restricted appeal as a legal remedy. As support, appellants rely on the Texas Supreme Court's opinion in Gold v. Gold, 145 S.W.3d 212 (Tex. 2004) (per curiam), which issued three months after the jury trial in this case. In Gold, the court explained that it had never "included a restricted appeal among the `adequate legal remedies' a bill of review claimant must pursue; we have only applied this rule to motions that could have been filed in the trial court's first proceeding." Id. at 214. Consequently, in light of Gold, we conclude it was error to instruct the jury that a restricted appeal was a legal remedy available to set aside the default judgment. The question is whether the error is harmful.
Appellants objected that the charge contained "an instruction to the jury related to the availability of a restricted appeal" and, more specifically, that appellee had judicially admitted "that restricted appeal would not be a legal remedy available to the A-55 [p]laintiffs." In its brief, appellee argues that appellants' objection failed to preserve error because it "had absolutely nothing to do with whether a restricted appeal is a legally sufficient alternative to a bill of review." Even if we agreed with appellee, which we do not, this trial was being conducted in accordance with our opinion, which concluded there was a fact issue on whether appellants could have filed a restricted appeal. Thus, we conclude apppellants' objection was sufficient to apprise the trial court of their complaint.
That question is answered by Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). In Casteel, the trial court submitted a single broad-form liability question to jurors and instructed the jury on thirteen independent grounds for liability. The question requested a single answer, which the jury answered affirmatively. The court held it was error to submit four of the liability theories; it then had to determine whether the error was harmless. The court ultimately concluded that when a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory. Casteel, 22 S.W.3d 378, 379 (Tex. 2000). However, when questions are submitted in a manner that allows the appellate court to determine that the jury's verdict was actually based on a valid liability theory, the error may be harmless. Id.
Initially, we note that this case addressed legal remedies in the context of a bill of review as opposed to liability theories. Regardless, here, as in Casteel, the trial court submitted two theories and asked a single question, and one of theories was ultimately determined to be improper. Thus, the charge contained valid and invalid grounds for denying appellants' remedy, i.e. bill of review. Importantly, it was the only question asked of the jury; thus, there were no other questions by which this Court could conclude the jury based its answer on a finding that appellant could have filed a motion for new trial. Because we cannot determine whether the jury based its verdict on the improperly submitted theory, we sustain the first issue. Our disposition of this issue makes it unnecessary to consider the second issue. See Tex.R.App.P. 47.1.
We reverse the trial court's judgment and remand for proceedings consistent with this opinion.