Prisoner's Bill of Review suit fails following appellate win in prior case

First Court of Appeals, in memo opinion by Justice Tim Taft, affirms trial court's denial of inmate's bill of review. Same plaintiff had won a reversal in the other Houston court of appeals in prior suit. In restating the requirements for a successful attack on a judgment by bill of review, reviewing court holds that the fact that an injustice was committed does not provide sufficient grounds for relief.

Williams v. TDCJ-ID No. 01-06-00404-CV (Tex.App.- Houston [1st Dist.] Jan. 10, 2008)(Taft)(bill of review denied, multiple suits and appeals)
Before Justices Taft, Hanks and Higley) Howard Vanzandt Williams v. Texas Department of Criminal Justice-ID
Appeal from 23rd District Court of Brazoria County (Judge Ben Hardin)
Disposition: Trial court's judgment affirmed

MEMORANDUM OPINION BY JUSTICE TAFT

Howard Vanzandt Williams appeals the trial court’s order denying his bill of review. We affirm.

Factual and Procedural Background

Howard Vanzandt Williams, an inmate of the Texas Department of Criminal Justice-Institutional Division (“TDCJ–ID”), sued Dale Denault, a corrections officer employed by TDCJ–ID, and TDCJ–ID. The trial court dismissed the suit in its entirety, and Williams appealed to the 14th Court of Appeals. The 14th Court of Appeals affirmed the dismissal as to Denault only and reversed it as to claims against TDCJ–ID. See Williams v. Denault, No. 14-00-00889-CV, 2001 WL 1249311, *5 (Tex. App.—Houston [14th Dist.] October 18, 2001, no pet.) (memo op.).
Concluding that Williams had stated a claim against TDCJ–ID subject to the Texas Tort Claims Act, but that Williams had not served TDCJ–ID nor had TDCJ–ID answered the allegations, the 14th Court held that “the trial court abused its discretion in ordering that the case was dismissed with prejudice and in its entirety as frivolous.” Id. at *4. In so holding, the court determined that the trial court’s order dismissing the entire action with prejudice “cannot be said to operate as a dismissal on the merits of a defendant that has not yet been served or answered on the record.” Id. at *4.

The opinion from the 14th Court of Appeals issued on October 18, 2001. On March 12, 2003, Denault’s attorney, a representative from the Attorney General’s office, filed an amicus motion to dismiss the claims against TDCJ–ID for want of prosecution and as frivolous because the statute of limitations had run. An order of dismissal was signed in July and again in December of 2003. The orders are identical, except that the December order includes the language, “All relief not specifically granted is denied.”

In April of 2006, Williams filed a petition for a bill of review seeking to set aside the court’s judgment dismissing his claims against TDCJ–ID. That petition does not contain a certificate of service. As best we can determine, Williams alleged that TDCJ–ID waived service. The trial court denied the petition for bill of review without a hearing.

Bill of Review

A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987); Alexander v. Hagedorn, 148 Tex. 565, 569, 226 S.W.2d 996, 998 (1950). The mere fact that an injustice has been done is not sufficient to warrant granting a bill of review. Alexander, 148 Tex. at 569, 226 S.W.2d at 998.

A party who has participated in the trial court proceedings must plead and prove three elements to obtain a bill of review: (1) a meritorious ground of appeal exists; (2) which the party was prevented from presenting in a motion for new trial or ordinary appeal by the fraud, accident, or wrongful act of the opposing party, or official mistake or misinformation; (3) unmixed with the fault or negligence of the petitioner. McDaniel v. Hale, 893 S.W.2d 652, 660, 662–63 (Tex. App.—Amarillo 1994, writ denied); see Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245–46 (Tex. 1974). A meritorious ground of appeal is one that, had it been presented to the appellate court as designed, might, and probably would, have caused the judgment to be reversed. Petro-Chem., 514 S.W.2d at 245.

In our review, we must indulge every presumption in favor of the trial court’s ruling. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We will not disturb that ruling unless the petitioner is able to show affirmatively that there was an abuse of judicial discretion. Id. A trial court abuses its discretion only if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. Id. Finally, because we have no findings of fact or conclusions of law entered in this case, we must affirm the trial court’s ruling on any theory finding support in the record. See id. When the inquiry on the bill of review concerns questions of law, such as whether an appellant presented prima facie proof of a meritorious ground of appeal, we review the trial court’s decision de novo. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

As a pretrial matter, the plaintiff must present prima facie proof to support the alleged meritorious claim. Caldwell v. Barnes, 154 S.W.3d 93, 97 (Tex. 2004); Baker, 582 S.W.2d at 408; Martin v. Martin, 840 S.W.2d 586, 591 (Tex. App.—Tyler 1992, writ denied). If the trial court concludes that a prima facie meritorious ground of appeal has not been shown, it may dismiss the case without conducting a trial. Beck v. Beck, 771 S.W.2d 141, 142 (Tex. 1989); Baker, 582 S.W.2d at 409.

Prima facie proof may consist of documents, admissions, and affidavits, along with other evidence that the trial court may receive. Baker, 582 S.W.2d at 409. Williams presented no proof to support the allegations contained in his petition for bill of review. See Caldwell, 154 S.W.3d at 97. Thus, the trial court did not err if it concluded that Williams failed to establish a meritorious claim in his bill of review.

Conclusion

We affirm the order of the trial court.

Tim Taft
Justice

Panel consists of Justices Taft, Hanks, and Higley.

One criminal conviction in child abuse case vacated on order of higher court

Gregory Lee Villanueva v. The State of Texas, No. (Tex.App.-Houston, Aug. 22, 2007)(Opinion by Justice Taft)(criminal case; injury to child, double jeopardy)(Before Justices Taft, Keyes and Hanks)
Appeal from 21st District Court of Burleson County

On Appeal from the 21st District CourtBurleson County, Texas
Trial Court Cause No. 12742 (Count II)

O P I N I O N

In a single proceeding, the trial court permitted the jury in trial court cause number 12742 to convict appellant, Gregory Lee Villanueva, of both injury to a child by act and by omission. See Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon Supp. 2006). On June 8, 2006, this Court issued an opinion in appellate cause numbers 01-04-01070-CR and 01-04-01072, holding that appellant's right against double jeopardy was not violated by his convictions on both counts of injury to a child by act and injury to a child by omission. See Villanueva v. State, 194 S.W. 3d. 146, 152-53 (Tex. App.--Houston [1st Dist.] 2006), aff'd in part & rev'd in part, Nos. 0718-06, 0719-06, 2007 WL 1828766, at *5 (Tex. Crim App. June 27, 2007).

Appellant filed petitions for discretionary review in the Court of Criminal Appeals. The Court of Criminal Appeals granted appellant's petitions for discretionary review. In an opinion issued on June 27, 2007, the Court of Criminal Appeals held that "punishing the appellant in the same proceeding for injury to a child by act and injury to a child by omission violated appellant's double-jeopardy protection." See Villanueva, 2007 WL 1828766, at * 5.

The Court of Criminal Appeals affirmed the judgment of this Court in cause number 01-04-01070-CR, which had affirmed the trial court's judgment of the conviction for Count I (injury to a child by act), and reversed the judgment of this Court in cause number 01-04-01072-CR, which had affirmed the trial court's judgment for Count II (injury to a child by omission). The Court of Criminal Appeals remanded our cause number 01-04-01072-CR to this Court with instructions to vacate the trial court's judgment of appellant's conviction for Count II.

Conclusion

Accordingly, we vacate that portion of the trial court's judgment, signed July 21, 2004, pertaining to Count II, injury to a child by omission, and dismiss the portion of the trial court cause (number 12742) relating to Count II.

Tim Taft
Justice

Panel consists of Justices Taft, Keyes, and Hanks.
Publish. See Tex. R. App. P. 47.2(b).

Klein, M.D. and BCM v. Hernandez (Tex.App.- Houston [1st Dist.] Aug. 3, 2007)

Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez as the Parent and Next Friend of N.H., A Minor, No (Tex.App.- Houston [1st Dist.] August 3, 2007)(Opinion by Justice Taft)( (Before Justices Taft, Jennings and Alcala)
Appeal from 152nd District Court of Harris County
Trial court judge: Hon. Kenneth P. Wise

O P I N I O N

Appellants, Baylor College of Medicine (“Baylor”) and Geoffrey Klein (together, “appellants”), appeal the trial court’s two interlocutory orders denying their joint motions for summary judgment and their joint pleas to the jurisdiction. We determine (1) whether we have jurisdiction over Baylor’s appeal in whole or in part; (2) assuming that the answer to (1) is in the affirmative, whether Baylor’s summary-judgment motions had become moot before the trial court denied them; (3) whether we have jurisdiction over Klein’s appeal in whole or in part; and (4) assuming that the answer to (3) is in the affirmative, whether the trial court erred by denying summary judgment for Klein on the basis of immunity from liability under Texas Health and Safety Code sections 312.006 or 312.007. See Tex. Health & Safety Code Ann. §§ 312.006, 312.007 (Vernon 2001). We rule as follows:

●we dismiss Baylor’s appeal of the order denying its jurisdictional pleas;

●we vacate that portion of the trial court’s separate summary-judgment order that denied Baylor’s summary-judgment motions;

●we dismiss Klein’s appeal from the order denying his jurisdictional pleas and from the order denying his summary-judgment motions to the extent that those motions asserted what Klein alleged to have been jurisdictional grounds; and

●we affirm the order denying summary judgment to the extent that the order denied that part of Klein’s summary-judgment motions that asserted individual immunity from liability.

* * * [body of opinion omitted]

Conclusion

We dismiss Baylor’s appeal of the order denying its jurisdictional pleas. We vacate that portion of the trial court’s separate order denying Baylor’s summary-judgment motions. We dismiss Klein’s appeal from the order denying his jurisdictional pleas and from the order denying his summary-judgment motions to the extent that those motions asserted what Klein alleged to have been jurisdictional grounds. We affirm the order denying summary judgment to the extent that the order denied that part of Klein’s summary-judgment motions that asserted immunity from individual liability.

Tim Taft
Justice
Panel consists of Justices Taft, Jennings, and Alcala.