Saturday, August 8, 2009

Bill of Review Denied where petitioners could have brought conventional appeal, but didn't

Does the taxpayers' failure to pursue a direct appeal from the judgment preclude the setting aside of the judgment through an equitable bill of review?

ANSWER BY THE COURT OF APPEALS: Yes, taxpayers should have filed notice of appeal, and pursued direct attack on the judgment in the tax suit, after their motion for new trial was overruled.


Under their first issue, the Langstons argue that the summary-judgment evidence raises a genuine issue of material fact as to each of the essential elements that the Langstons needed to prove to obtain relief under an equitable bill of review. The Langstons were served with process in the property-tax collection suit. They had notice of the trial setting. They were aware of the trial court's rendition of the Judgment. The Langstons timely filed a motion for new trial; however, they did not pursue a direct appeal of the Judgment.

Though the Langstons allege that an opposing attorney made a fraudulent representation that prevented them from attending the trial in the tax-collection suit, the Langstons do not allege that they were prevented from pursuing a direct appeal from the Judgment by any fraud, accident, or wrongful act of the Taxing Authorities.

Under these circumstances, the requirement that the Langstons be free from fault or negligence is negated as a matter of law, and the trial court properly granted summary judgment in favor of the Taxing Authorities. See French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) (affirming summary judgment in favor of bill-of-review-action defendants under these circumstances); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 295-96 (Tex. App.- Houston [14th Dist.] 2002, no pet.) (same). Accordingly, we overrule the Langstons' first issue.

Langston v. City of Houston et al. (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost) (bill of review denied, taxpayer suit, failure to avail oneself of available remedies, i.e. direct appeal, precludes bill-of-review relief) (fundamental error claim based on constitutional arguments also rejected)
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