Opinion issued February 21, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                              ————————————

                               NO. 01-10-01063-CV
                            ———————————
 MARIS MARLENE MICHAELS AND STANLEY G. MILLER, Appellants
                                         V.
             DONALD ZIEGLER AND IDA ZIEGLER, Appellees



                    On Appeal from the 212th District Court
                           Galveston County, Texas
                       Trial Court Case No. 09-CV-1686



                        MEMORANDUM OPINION

      Maris Marlene Michaels and Stanley G. Miller appeal from the trial court’s

denial of their original petition for bill of review seeking to set aside a judgment

rendered after a trial on the merits. We affirm.
                                    Background

      Donald Ziegler and Ida Ziegler filed suit against Michaels and Miller

alleging breach of contract and fraud. After a trial on the merits, the jury returned

a verdict in favor of the Zieglers. Approximately two weeks later, on March 25,

2009, the Zieglers filed a motion to enter final judgment, attaching a proposed

judgment, a copy of which was forwarded to Miller and Michael’s counsel. The

trial court signed the final judgment on April 7, 2009.     On September 17, 2009,

appellants filed an original petition for bill of review seeking to set aside the

judgment.

      In their petition for bill of review, appellants claimed that, although they had

meritorious claims, they were prevented from either obtaining a new trial or

perfecting a timely appeal in the underlying case due to “extrinsic fraud” on the

part of the Zieglers and “official mistakes of the Court system,” which were

“unmixed with any fault or negligence” on appellants’ part.            In particular,

appellants alleged that the Zieglers, inter alia, led them to believe that there would

be a hearing on the Zieglers’ motion to enter final judgment, but then failed to set a

hearing on the motion. Appellants also alleged that the Zieglers knowingly made

material misrepresentations to the trial court, which the court relied upon when it

entered the final judgment and denied appellants’ timely motion for new trial.

Appellants further alleged that they were prevented from pursuing post-judgment


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remedies because the district clerk failed to provide them with proper notice that

the trial court had signed orders denying their motion for new trial and motion to

modify, reform, or correct the judgment—even though appellants also contend that

no such orders were ever signed. The trial court denied relief after a brief trial on

September 15, 2010, and subsequently made findings of fact and conclusions of

law. Appellants filed this timely appeal.

                               Standard of Review

      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 subject to challenge by a

motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex.

2004); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). A party seeking a

bill of review who has participated in the trial court proceedings must plead and

prove that (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.

Thompson v. Ballard, 149 S.W.3d 161, 164 (Tex. App.—Tyler 2004, no pet.);

McDaniel v. Hale, 893 S.W.2d 652, 660, 662–63 (Tex. App.—Amarillo 1994, writ

denied); see also 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


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the appellate court as designed, might, and probably would, have caused the

judgment to be reversed.      Petro-Chem., 514 S.W.2d at 245; Thompson, 149

S.W.3d at 164.

      In addition, a bill of review is proper only when a party has exercised due

diligence to prosecute all adequate legal remedies against a former judgment. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). This due diligence

requirement is distinct from the three elements of the bill of review and is a

prerequisite to bringing a bill of review. Caldwell v. Barnes, 975 S.W.2d 535,

537–38 (Tex. 1998); Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston

[1st Dist.] 2007, no pet.). If legal remedies were available but ignored, relief by

equitable bill of review is unavailable. Caldwell, 975 S.W.2d at 537; see also

French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) (stating party who permits

judgment to become final without appealing it cannot seek relief by bill of review

without providing adequate explanation for failure to appeal). This applies even if

the failure results from the negligence or mistake of a party’s attorney. Gracey v.

West, 422 S.W.2d 913, 916 (Tex. 1968) (stating client is bound by acts of his

attorney, and attorney negligence is not sufficient ground to support bill of review).

      We review a trial court’s ruling on a bill of review for an abuse of discretion,

indulging every presumption in favor of the court’s ruling. Davis, 227 S.W.3d at




                                          4
302. A trial court abuses its discretion if it acts in an unreasonable or arbitrary

manner, or without reference to guiding rules and principles. Id.

                                     Discussion

      The trial court found that appellants failed to establish that they were entitled

to a bill of review in this case for several reasons—one of which was that

appellants offered no adequate explanation for their failure to pursue an appeal in

the underlying case despite the fact that they had actual notice of the judgment in

time to file post-judgment motions (e.g., appellants’ motion for new trial and

motion to modify the judgment) on which the trial court held a hearing prior to the

expiration of its plenary power.

      The record, which supports the trial court’s findings and conclusions of law

on this issue, reflects that appellants timely filed their motion for new trial and

motion to modify, reform, or correct the judgment on May 5, 2009. Not only did

appellants’ May 5, 2009 motions expressly acknowledge that the trial court signed

the final judgment in the underlying case on April 7, 2009, but signed copies of the

final judgment were attached to both motions. Even had the trial court not signed

an order denying appellants’ new trial motion (or had the district clerk failed to

provide appellants with notice of such an order), as appellants allege, this would

not justify appellants’ failure to file a timely notice of appeal because the

disposition of the motion for new trial does not affect the appellate timetables. See


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generally TEX. R. CIV. P. 329b(c) (stating that if motion for new trial is not

determined by written order signed within seventy-five days after judgment was

signed, it is considered overruled by operation of law). In this case, assuming no

written order disposing of the motion for new trial had been signed before that

date, appellants’ motion was overruled by operation of law on June 22, 2009.

      The record reflects that, despite their protestations to the contrary on appeal,

appellants had actual knowledge of the final judgment in the underlying case at

least by May 5, 2009. Because appellants filed a timely motion for new trial, they

had until July 6, 2009, to file their notice of appeal. See TEX. R. APP. P. 26.1

(stating notice of appeal must be filed within thirty days after date judgment was

signed, but when motion for new trial has been filed, notice of appeal must be filed

within ninety days after date on which judgment was signed). Appellants have not

adequately explained why they never filed a notice of appeal, despite having ample

opportunity to do so. See French, 424 S.W.2d at 894–95 (stating that party who

permits judgment to become final without appealing it cannot seek relief by bill of

review unless they adequate explanation for failure to appeal; holding bill of

review unavailable to claimant who timely filed motion for new trial but never

appealed when motion was denied by operation of law). Accordingly, appellants

are not entitled to a bill of review.

      We overrule appellants’ issues on appeal.


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                                   Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




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