                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00316-CV


OFFICE OF THE ATTORNEY                                                APPELLANT
GENERAL

                                         V.

CHRISTOPHER BRIAN SCOTT                                                 APPELLEE


                                      ----------

          FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 360-553178-14

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      Appellant Office of the Attorney General appeals the trial court’s judgment

dismissing appellant’s petition for bill of review. In one issue, appellant contends

that the trial court erred by granting appellee Christopher Brian Scott’s no-




      1
       See Tex. R. App. P. 47.4.
evidence motion for summary judgment. We reverse the judgment and remand

this case to the trial court.

                                Background Facts 2

        In 2006, appellant filed a lawsuit against appellee and another party

concerning child support obligations. In April 2008, the trial court included that

suit on a list of cases that would be dismissed for want of prosecution “unless

there [was] good cause for the case to be maintained on the docket.” The April

2008 notice stated that each case on the list would be dismissed unless a party

filed a motion to retain its suit prior to the dismissal date, which was May 21,

2008.

        On May 21, 2008, the trial court, in one order, dismissed several cases,

including appellant’s case. The May 2008 dismissal order stated, “After due

notice as required by the rules of civil procedure as amended, it is the order and

decree of the court that [the] following causes of action be dismissed for want of

prosecution . . . .” Neither the April 2008 notice nor the May 2008 order listed

appellant as a named party to the suit being dismissed; instead, those

documents referred to appellee and the other party who were respondents to

appellant’s original suit.




        2
        The facts recited in this section include uncontroverted procedural
allegations made by appellant in the trial court and on appeal. We note that
appellee has not filed a brief in this appeal.


                                        2
      In March 2014, appellant filed a petition for bill of review. 3       Appellant

alleged that it had never received notice of the trial court’s intent to dismiss the

prior action for want of prosecution, therefore violating its right to due process. 4

Appellant also alleged that it did not receive notice of the trial court’s May 2008

dismissal order until May 2013, which was long after appellant could file a motion

to reinstate or a motion for new trial. In summary, appellant contended that it

“had no notice of the Court’s intent to dismiss for want of prosecution . . . or the

Order of Dismissal within an adequate time to pursue alternative legal remedies,

and . . . the lack of notice was not because of its own fault or negligence.” As

relief, appellant asked the trial court to grant the bill of review and set aside the

May 2008 order. The second respondent to the original suit filed a letter in June

2014 to inform the court that she had no objection to appellant’s petition for bill of

review.




      3
        A bill of review is an equitable action brought by a party to a prior action
who seeks to set aside a judgment that is no longer appealable or subject to a
motion for new trial. See Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809,
812 (Tex. 2012) (describing the elements that a bill-of-review plaintiff must plead
and prove). We do not intend to opine about whether appellant will ultimately be
entitled to relief on its petition for bill of review; we conclude below only that the
trial court erred by granting appellee’s motion for summary judgment and by
dismissing appellant’s petition on that basis.
      4
       See Tex. R. Civ. P. 165a (“Notice of the court’s intention to dismiss and
the date and place of the dismissal hearing shall be sent by the clerk to each
attorney of record . . . by posting same in the United States Postal Service.”).


                                          3
      Appellee answered appellant’s petition by pleading a general denial,

several specific denials, and affirmative defenses.     Appellee also filed a no-

evidence motion for summary judgment. In the motion, appellee solely asserted,

            1. There is no evidence of one or more of the following
      elements of lack of notice of the dismissal setting . . . on which
      [appellant] has the burden of proof at trial.

                    a. That the [appellant] did not receive notice of
             the dismissal setting.

             2. [Appellee] claims [appellant] cannot produce evidence of
      lack of notice of the dismissal setting.

      Appellant responded to appellee’s motion by contending that it could prove

that it did not receive the April 2008 dismissal notice. To its response, appellant

attached affidavits by two of its employees, Cheryl Lewis and Lydia Leal. 5

Lewis’s affidavit stated in part,

             I am a Child Support Officer - Financial Specialist with the
      Office of the Attorney General of Texas, Child Support Division. I
      am a custodian of records for the Child Support Division of the Office
      of the Attorney General of Texas . . . .

             ....

            I have reviewed the business records of the Office of the
      Attorney General for [the original suit filed by appellant]. They were
      kept in the regular course of the business of the Office of the
      Attorney General, and it was in the regular course of business of the
      Office of the Attorney General for an employee or representative of
      the Office of the Attorney General, with knowledge of the act, event,
      condition, opinion, or diagnosis, recorded to make the record or to


      5
       Appellant also attached an affidavit from an assistant attorney general,
who stated that he had asked the district clerk to provide an affidavit about what
occurred in 2008 but that the district clerk had declined to do so.


                                        4
      transmit information thereof to be included in such record . . . at or
      near the time or reasonably soon thereafter.

            I am familiar with the Office of the Attorney General’s
      procedures and processes regarding notices from courts of intent to
      dismiss for want of prosecution in 2008. The process of handling
      such notices would have been to record the receipt of the notice on
      the computer system, note the date of dismissal, and route the
      notice to an Assistant Attorney General.

            I can find no indication that the Office of the Attorney General
      ever received notice from the clerk of this Court of the intent to
      dismiss this case for want of prosecution, on or about April 2, 2008.
      I can find no indication that the Office of the Attorney General ever
      received notice from the clerk of this Court of the dismissal of this
      case for want of prosecution, on or about May 27, 2008.

             ....

             I am familiar with the discovery by the Office of the Attorney
      General of the dismissal of this case for want of prosecution. On or
      about May 6, 2013, I met with [appellee]. At that time he advised me
      that the case had been dismissed for want of prosecution in 2008.

Similarly, Leal’s affidavit explained,

            I am a Child Support Officer with the Office of the Attorney
      General of Texas, Child Support Division. I am a custodian of
      records for the Child Support Division of the Office of the Attorney
      General of Texas . . . .

             ....

             I have reviewed the business records of the Office of the
      Attorney General for [the original suit]. . . . I can find no record of the
      Office of the Attorney General ever [receiving] notice from the clerk
      of this Court of the intent to dismiss this case for want of
      prosecution, either before or after April 2, 2008. I can find no record
      of the Office of the Attorney General ever [receiving] notice from the
      clerk of this Court of the dismissal of this case for want of
      prosecution, either before or after May 27, 2008.

             In April and May of 2008, I was assigned to the Legal Support
      function of the Northeast Tarrant County office (Office 906) of the


                                          5
      Office of the Attorney General’s Child Support Division. As such, I
      was responsible for processing notices from courts of intent to
      dismiss for want of prosecution at that time, and notices of dismissal
      for want of prosecution. The process of handling such notices would
      have been to record the receipt of the notice on the computer
      system under the case, note the date of dismissal, and route the
      notice to an Assistant Attorney General.

            I do not recall ever seeing any notice from the clerk of this
      Court of the intent to dismiss this case for want of prosecution . . . on
      or about April 2, 2008. I do not recall ever seeing any notice from
      the clerk of this Court of the dismissal of this case for want of
      prosecution . . . on or about May 27, 2008.

      Appellee did not file a reply in the trial court to address whether the

affidavits that appellant filed were sufficient to survive the motion for summary

judgment. The trial court granted appellee’s motion for summary judgment and

dismissed appellant’s petition for bill of review. Appellant brought this appeal.

                        Propriety of Summary Judgment

      Appellant contends that the trial court erred by granting appellee’s no-

evidence motion for summary judgment. After an adequate time for discovery,

the party without the burden of proof may, without presenting evidence, move for

summary judgment on the ground that there is no evidence to support an

essential element of the nonmovant’s claim. Tex. R. Civ. P. 166a(i). The motion

must specifically state the elements for which there is no evidence. Id.; Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant

the motion unless the nonmovant produces summary judgment evidence that

raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008).


                                         6
      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).              If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

      Appellant contends that its employees’ affidavits raise at least a genuine

issue of material fact on the sole issue raised by appellee’s motion for summary

judgment: whether in April 2008, appellant received notice of the trial court’s

intent to dismiss the original suit.   Examining the affidavits in the light most

favorable to appellant’s position, we agree. See Sudan, 199 S.W.3d at 292.

      The affidavits, taken together, produce more than a scintilla of evidence

that appellant did not receive the April 2008 notice because they state that


                                         7
appellant keeps records related to such notices in the regular course of business,

that appellant has a process of documenting and archiving receipt of such

notices, that the receipt of a notice in April 2008 related to the prior case was not

archived, and that the employee responsible for receiving and processing such

notices does not remember receiving and processing the notice related to this

case.   We conclude that under the circumstances of this case, the negative

evidence about what appellant does not have archived and about what its

employee does not remember produces a positive inference, sufficient to survive

a no-evidence motion for summary judgment, that appellant did not receive the

notice. Cf. Hampton v. State, 109 S.W.3d 437, 441 n.3 (Tex. Crim. App. 2003)

(stating that the absence of a record may be evidence when someone would

expect to find the record within a repository if it existed); Sudduth v.

Commonwealth Cnty. Mut. Ins. Co., 454 S.W.2d 196, 197–98 (Tex. 1970)

(holding that a plaintiff’s testimony that she did not receive a letter created a

genuine issue of material fact, sufficient to defeat a motion for summary

judgment, that the defendant did not send the letter); Guerra v. Wal-Mart Stores,

Inc., 943 S.W.2d 56, 60 (Tex. App.—San Antonio 1997, writ denied) (concluding

that a jury could infer that no accident occurred in a store from evidence that the

store maintained records concerning accidents and that the store could not

locate a record of the plaintiff’s alleged accident); Gross v. State, 624 S.W.2d

287, 289 (Tex. App.—Fort Worth 1981, pet. ref’d) (holding that in a criminal case

in which a defendant was charged with unlawfully practicing dentistry, a list of


                                         8
licensed dentists that did not contain the defendant’s name was sufficient

evidence to show that the defendant was not licensed).

       Considering the entire record in the light most favorable to appellant and

indulging every reasonable inference against appellee’s no-evidence motion for

summary judgment, we hold that the evidence is sufficient to raise a genuine

issue of material fact concerning whether appellant received notice in 2008 of the

trial court’s intent to dismiss the prior case for want of prosecution. See Sudan,

199 S.W.3d at 292. Thus, we conclude that the trial court erred by granting

appellee’s no-evidence motion for summary judgment, and we sustain

appellant’s only issue. See Smith, 288 S.W.3d at 424; Sudan, 199 S.W.3d at

292; see also Hall v. RDSL Enters. LLC, 426 S.W.3d 294, 304 (Tex. App.—Fort

Worth 2014, pet. denied) (reversing a summary judgment when the nonmovant

presented “more than a scintilla of probative evidence that raised a genuine issue

of material fact”).

                                   Conclusion

       Having sustained appellant’s only issue, we reverse the trial court’s

judgment and remand this case to the trial court for further proceedings.

                                                  /s/ Terrie Livingston

                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: July 2, 2015



                                        9
