Opinion
No. 05-02-01903-CV
Opinion issued October 15, 2003
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-00076-02
AFFIRMED
Before Justices JAMES, FITZGERALD, and LANG.
MEMORANDUM OPINION
George Miller appeals from an order denying his bill of review in which he attacked a default judgment entered in the divorce action between him and Caroline Alma Miller. Appellant brings six issues, arguing (1) the order inaccurately states the trial court's action; (2) appellee made an oral motion that was required to be in writing and preceded by three days notice; and (3) the trial court erred by striking appellant's witnesses, excluding all testimony and evidence, and denying his bill of review. The facts are well known to both parties; thus we do not recite them here in detail. We affirm the trial court's judgment.
In his first issue, appellant argues the trial court erred in signing the order denying the bill of review because the order "inaccurately states the Court's action taken at the call of the case for trial on September 16, 2002." Appellant provides no authority to support his argument. Accordingly, he has waived this issue and we resolve it against him. See Tex.R.App.P. 38.1(h).
In his second and third issues, appellant argues the trial court erred by hearing appellee's oral motions. Appellant contends any motions were required to be in writing and served on him with at least three days' notice. However, motions are neither required to be preceded by three days' notice nor are they required to be in writing when they are presented during a hearing or trial. Tex.R.Civ.P. 21.
The court called this case, inquired as to the parties' readiness, and heard preliminary matters raised by appellee. Appellant argues this was not a hearing, but by reviewing the record it is clear the trial court heard argument of counsel regarding the preliminary matters. Appellant argues the Eastland Court of Appeals concluded a motion presented during preliminary matters before addressing a motion for summary judgment was not "presented during a hearing or trial." See Lee v. Palo Pinto County, 966 S.W.2d 83, 85 (Tex.App.-Eastland), pet. denied, 988 S.W.2d 739 (Tex. 1998) (per curiam). However, appellant fails to note the supreme court's subsequent disposition of the case. In its opinion denying Palo Pinto County's petition for review, the supreme court specifically disapproved of the language of the court of appeals "to the extent the court concluded that Palo Pinto did not present its oral motion to strike during a hearing." Palo Pinto County v. Lee, 988 S.W.2d 739, 739-40 (Tex. 1998). We resolve issues two and three against appellant.
In appellant's sixth issue, appellant generally contends the trial court erred by "summarily denying" his petition for bill of review. After the trial court entered the order denying appellant's bill of review, appellant did not submit his request for findings of fact and conclusions of law until after the deadline for doing so had passed. Accordingly, the trial court did not enter any findings of fact or conclusions of law. Because the trial court did not make findings of fact or conclusions of law, we must assume that it made all findings in support of its judgment. Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex. 1996); Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam). Furthermore, when findings of facts and conclusions of law are not requested or filed, we "must affirm that judgment on any legal theory finding support in the pleadings and evidence." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); see Amer. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 531 (Tex.App.-Dallas 2002, pet. denied); Chang v. Linh Nguyen, 81 S.W.3d 314, 316 n. 1 (Tex.App.-Houston [14th Dist.] 2001, no pet.);
Relief by bill of review is available only if a party has exercised due diligence to pursue all adequate legal remedies against a former judgment but no adequate remedy was available. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989). An "adequate remedy" means a remedy that is plain and complete and as practical and efficient to the ends of justice and its prompt administration as a remedy in equity. Blum v. Mott, 664 S.W.2d 741, 743-44 (Tex.App.-Houston [1st Dist.] 1983, no writ). Generally, legal remedies include a motion for new trial, direct appeal, or restricted appeal. See Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (referring to writs of error which are now known as restricted appeals).
The "due diligence requirement" requires a petitioner, before he may bring his claim for bill of review, to allege and prove that he has exercised all due diligence to pursue all adequate legal remedies to the judgment in controversy or show good cause for failing to exhaust the same. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); Griffith v. Conard, 536 S.W.2d 658, 661 (Tex.Civ.App.-Corpus Christi 1976, no writ). If a petitioner had legal remedies which were available but ignored, relief by equitable bill of review is unavailable. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999); French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967). A person who has an available appeal but fails to pursue it is not entitled to seek relief by way of bill of review. Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980).
After the judge called the case for trial, counsel for appellee stated she had two preliminary issues with going forward in presenting testimony. One issue concerned appellee's contention appellant failed to file a motion for new trial even though he received the default judgment only eleven days after the judgment was entered Appellee quoted appellant's verified pleading in support of her contention, and appellant made no objection to appellee's use of his pleading. During the hearing appellant responded:
We recognize appellee's raising this issue preliminarily when the case was called for trial appears to consist of a complaint regarding appellant's pleadings. The correct manner for doing so would be by special exception. However, appellant neither complained of this at trial nor on appeal. He has, accordingly, waived complaint regarding special exceptions. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex. 1990); Higbie Roth Constr. Co. v. Houston Shell Concrete, 1 S.W.3d 808, 811 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).
Your Honor, our proof would show, and as stated in the verified pleading, Mr. Miller . . . had earlier received a letter directly from the Court in October that informed him that this matter was set for trial December 17, and he was acting on that belief that the matter would go to trial at that point.
Appellant did not explain how his belief the matter was set for trial December 17-an issue relating to why he failed to show for trial and why the default judgment may have been improperly entered against him-served as good cause for failing to file a motion for new trial.
Appellant's pleading was verified by him that "each and every and all of the statements contained in such Petition are within [appellant's] personal knowledge and are true and correct." Appellant's pleading states the following:
Plaintiff only learned of the entry of a Final Decree of Divorce by default in this cause when Plaintiff received a copy of the Final Decree of Divorce from the Clerks of this Court on or about November 5, 2001. Even then, Plaintiff believed that the document that he received by mail was simply a filing with the Court of the Defendant's proposal for a Decree and did not constitute a Final Decree of Divorce whose entry was based on Plaintiff's default.
We may consider an assertion of fact in appellant's pleadings as a judicial admission. Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 207 (Tex. 2000). Appellant admits he received a copy of the Final Decree of Divorce on November 5, 2001, only eleven days after it was entered by the court. Appellant's only reason for not filing the motion for new trial was that he did not know the document he received in the mail was a final decree. The document, attached to appellant's verified pleading and thus before the trial court at the bill of review hearing, was entitled, "FINAL DECREE OF DIVORCE" and it was signed by the judge of the court. The document also stated, "On October 25, 2001, the Court heard this case."
The order denying appellant's bill of review states the trial court considered "the pleadings, argument of counsel, and evidence submitted." Based on the record before it, the trial court could have determined appellant failed to exercise all due diligence to pursue all adequate legal remedies to the judgment in controversy or show good cause for failing to exhaust the same. See Caldwell, 975 S.W.2d at 537. We conclude, therefore, there is a legal theory with support in the pleadings and evidence on which the trial court could have based its ruling. See IKB Indus., 938 S.W.2d at 445; In re W.E.R., 669 S.W.2d at 717. We resolve appellant's sixth issue against him. Our disposition of this issue resolves the appeal; accordingly, we do not address appellants' fourth and fifth issues. See Tex.R.App.P. 47.1.
We affirm the trial court's judgment.