                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION
                                               No. 04-14-00660-CV

                                        IN THE INTEREST OF J.A.E.

                      From the County Court at Law No. 2, Webb County, Texas
                     Trial Court Nos. 2011CVQ002377-C3 & 1995CVS001672-C3
                                Honorable Jesus Garza, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 3, 2015

AFFIRMED

           In December of 2011, Jorge Garcia filed a petition for bill of review in the underlying cause

seeking to set aside an order entered in February of 1996 which established Garcia’s paternity of

J.A.E. The Office of the Attorney General filed a no-evidence motion for summary judgment

asserting no evidence existed to support each element of Garcia’s bill of review claim. The trial

court granted the OAG’s motion and denied the relief requested in Garcia’s amended petition for

bill of review. On appeal, Garcia contends the OAG’s motion did not give fair notice of the

elements it was challenging, and the trial court erred in granting the motion. 1


1
 Garcia also contends the trial court abused its discretion in basing its ruling on the affirmative defense of limitations.
The OAG concedes a no-evidence summary judgment would be improper on the affirmative defense of limitations.
See Foreman v. Whitty, 392 S.W.3d 265, 279-80 (Tex. App.—San Antonio 2012, no pet.); Pollard v. Hanschen, 315
S.W.3d 636, 639 (Tex. App.—Dallas 2010, no pet.); Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). However, the OAG further asserts, “nothing in the record shows that the trial
court based its judgment on the affirmative defense of limitations.” Having reviewed the record, we note the OAG’s
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                                                 FORM OF MOTION

         Garcia contends the OAG’s motion failed to give “fair notice” of which elements of his

bill of review were being challenged. We disagree.

         In a no-evidence motion for summary judgment, the movant “must state the elements as to

which there is no evidence.” TEX. R. CIV. P. 166a(i); see also Thomas v. Omar Invs., Inc., 156

S.W.3d 681, 685 (Tex. App.—Dallas 2005, no pet.) (noting motion must specify which elements

lack supporting evidence). The elements a bill-of-review plaintiff must plead and prove are: (1) a

meritorious defense to the underlying cause of action; (2) which the plaintiff was prevented from

making by the fraud, accident, or wrongful act of the opposing party or official mistake; (3)

unmixed with any fault or negligence on his own part. Mabon Ltd. v. Afri-Carib Enters., Inc., 369

S.W.3d 809, 812 (Tex. 2012); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751-52 (Tex. 2003).

The OAG’s motion specifically lists each of these elements as lacking supporting evidence; 2

therefore, the OAG’s motion was in proper form. See King Ranch, Inc., 118 S.W.3d at 752 (noting

motion asserted there was no evidence of the defendant’s alleged extrinsic fraud or the plaintiffs’

lack of negligence); Doonan v. Wood, 224 S.W.3d 271, 273-74 (Tex. App.—El Paso 2005, no pet.)

(holding motion that specifically enumerated each of the elements of the causes of action as to

which there was no evidence was not defective).




attorney expressly raised and argued the issue of limitations at the hearing on the OAG’s motion, limitations was
extensively discussed at the hearing, and both parties addressed limitations in the supplemental briefing requested by
the trial court. Nevertheless, we agree the trial court signed a broad order that does not specify the basis for its ruling.
Therefore, because the trial court’s order does not establish that it erroneously based its ruling on the affirmative
defense of limitations and we uphold the trial court’s ruling on a different basis, Garcia’s contention is overruled.
2
  The motion states, “There is no evidence to support the following elements of GARCIA’s claim for a bill of review:
                     a.        that the judgment being challenged in the bill of review petition was the result of
           accident, mistake, extrinsic fraud, or other wrongful act of the opposite party.
                     b.        that GARCIA has a meritorious defense to the cause of action in the suit that led
           to the judgment being challenged in the bill of review petition.
                     c.        that the rendition of the judgment being challenged, or its becoming final, was not
           at least partly the result of GARCIA’s own negligence.”

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                                                                                         04-14-00660-CV


                    FRAUD, ACCIDENT, OR WRONGFUL ACT OF OPPOSING PARTY

          One of the elements Garcia was required to prove to prevail on his bill of review was that

he was prevented from making his meritorious defense due to the fraud, accident, or wrongful act

of a party or by official mistake. As previously noted, the OAG specifically stated no evidence

existed to support this element.

          A.     Standard of Review

          “A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply

the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in

reviewing a directed verdict.” King Ranch, Inc., 118 S.W.3d 750-51. “Accordingly, we review

the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and

inferences.” Id. at 751. “[A] no-evidence summary judgment is improperly granted if the

respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of

material fact.” Id. “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do

no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem,

Inc., 650 S.W.2d 61, 63 (Tex. 1983)). “More than a scintilla of evidence exists when the evidence

‘rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.’” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)).

          B.     Applicable Law

          “Fraud in relation to attacks on final judgments is either extrinsic or intrinsic,” but “[o]nly

extrinsic fraud will support a bill of review.” King Ranch, Inc., 118 S.W.3d at 752. “Extrinsic

fraud is fraud that denied a party the opportunity to fully litigate at trial all the rights or defenses

that could have been asserted.” Id. “Such fraud must be purposeful in nature.” Alderson v.

Alderson, 352 S.W.3d 875, 878 (Tex. App.—Dallas 2011, pet. denied). “There must be proof of
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                                                                                     04-14-00660-CV


some deception practiced by the [other party], collateral to the issues in the case.” Id. Extrinsic

fraud “is fraud that occurs in the procurement of a judgment.” Layton v. Nationsbanc Mortg.

Corp., 141 S.W.3d 760, 763 (Tex. App.—Corpus Christi 2004, no pet.); see also K.B. Video &

Elec., Inc. v. Naylor, 847 S.W.2d 401, 406 (Tex. App.—Amarillo 1993, writ denied) (noting

extrinsic fraud “refers to the manner in which the judgment was procured”); Lambert v. Coachmen

Indus. of Tex., Inc., 761 S.W.3d 82, 87 (Tex. App.—Houston [14th Dist.] 1988, writ denied)

(same).

          C.     Garcia’s Evidence

          As evidence supporting this element of his bill of review claim, Garcia relied on his

affidavit stating he was incarcerated from July 31, 1995 to July 3, 2000, from December 13, 2000

to December 18, 2000, and from July 13, 2001 to July 18, 2009. To “determine what had occurred

at the [1996] hearing,” Garcia stated that he visited the OAG’s office on three occasions: (1) in

September of 2000, he was told the matter was under review; (2) in February of 2001, he was

advised to return in 90 days; and (3) on July 18, 2009, he was advised to retain an attorney. With

regard to these visits, Garcia stated he “was given the run around having relied on their answer to

me that they would be looking into the case, therefore I believe they acted wrongfully in this

matter.”

          At the hearing on the OAG’s motion, Garcia’s attorney referred to a letter Garcia sent to

the OAG’s office in November of 1997, in which Garcia denied knowing J.A.E.’s mother and

requested paternity testing. The OAG objected to the letter as being untimely filed. The trial court

did not rule on the OAG’s objection, and the letter was attached to Garcia’s supplemental brief

filed in the trial court.




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                                                                                                  04-14-00660-CV


        D.       Analysis

        Construing Garcia’s evidence in the light most favorable to him, we accept Garcia’s

statement that the OAG’s office misled him on the three occasions he visited. Even accepting this

statement, however, Garcia’s affidavit contains no evidence of any wrongful act by the OAG that

resulted in the procurement of the 1996 order. See Layton 141 S.W.3d at 763; K.B. Video & Elec.,

Inc., 847 S.W.2d at 406; Lambert, 761 S.W.3d at 87. Instead, each of Garcia’s visits occurred

after the 1996 order was already procured. In addition, even if the 1997 letter was considered as

evidence by the trial court, this letter also was sent after the 1996 order was entered. Therefore,

Garcia offered no evidence of any purposeful deception practiced by the OAG prior to the entry

of the 1996 order that deprived Garcia of the opportunity to fully litigate his defenses to the

establishment of his paternity at trial. See King Ranch, Inc., 118 S.W.3d at 752; Alderson, 352

S.W.3d at 878. Accordingly, the trial court did not err in granting the OAG’s motion. 3

                                                 CONCLUSION

        Although Garcia may believe an injustice has been done, the Texas Supreme Court has

explained, “The grounds on 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.”

King Ranch, Inc., 118 S.W.3d at 751. This policy readily applies in this case where Garcia filed

his petition for bill of review fifteen years after the 1996 order was entered. The trial court’s

judgment is affirmed.

                                                         Sandee Bryan Marion, Chief Justice




3
  Because we hold the trial court did not err in granting the OAG’s motion based on this element of Garcia’s bill of
review claim, we do not further analyze the other two elements of Garcia’s claim that also were challenged in the
OAG’s motion. See TEX. R. APP. P. 47.1 (providing opinion should address only those issues necessary to final
disposition of the appeal).

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