                                  NO. 07-05-0139-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                 DECEMBER 16, 2005

                         ______________________________

                      IN THE MATTER OF THE MARRIAGE OF
                     VALARIE V. MANLEY AND REX V. MANLEY
                       _________________________________

          FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

               NO. DR-04E-086; HONORABLE ROLAND SAUL, JUDGE
                       _______________________________


Before QUINN, C.J, and REAVIS and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Valarie V. Manley (Valarie), appeals from the trial court’s order granting

appellee’s, Rex. V. Manley (Rex), Motion for No Evidence Summary Judgment and denying

Valarie’s Petition for Bill of Review. We reverse and remand.


                                    BACKGROUND


      Rex filed for divorce from Valarie. Although Valarie was properly served with citation

regarding this divorce action, she did not file an answer or otherwise participate in the

divorce proceedings. As a result, Rex obtained a default divorce on September 25, 2003.
       After discovering that Rex had obtained a divorce by default, Valarie filed a petition

for bill of review in May of 2004. Prior to trial on Valarie’s bill of review, Rex filed a motion

for no evidence summary judgment contending that Valarie could not produce evidence

that her failure to present her meritorious defense to the divorce was unmixed with her own

negligence. Valarie filed a response to the motion, which included affidavits from Valarie

and her sister. After hearing arguments, the trial court granted Rex’s motion for summary

judgment and denied Valarie’s request for bill of review.


       By one issue, Valarie appeals. Valarie contends that the trial court erred in finding

there was no evidence that any fraud, accident, or wrongful act on the part of Rex was

unmixed with any negligence committed by Valarie.


                                  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. See Aguirre v. South Texas Blood & Tissue

Center, 2 S.W.3d 454, 456 (Tex.App.–San Antonio 1999, pet. denied); Roth v. FFP

Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.–Amarillo 1999, pet. denied).

When reviewing a no evidence summary judgment, we must determine whether the non-

movant produced any evidence of probative force to raise a fact issue on the element

challenged by the movant. See Roth, 994 S.W.2d at 195. In deciding whether there is a

material fact issue precluding summary judgment, evidence favorable to the non-movant

will be taken as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984). Every


                                               2
reasonable inference from the evidence must be indulged in favor of the non-movant and

any doubts resolved in his favor. Id. A no-evidence summary judgment is improperly

granted if the non-movant presents more than a scintilla of probative evidence to raise a

genuine issue of material fact as to the element on which the motion is based. Roth, 994

S.W.2d at 195.


                                    BILL OF REVIEW


       A bill of review is an equitable action brought by a party to a previous suit seeking

to set aside a judgment which is no longer appealable or subject to a motion for new trial.

See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). To successfully

challenge a judgment by bill of review, the petitioner must prove: (1) a meritorious defense

to the cause of action, (2) that petitioner was prevented from making the defense by the

fraud, accident, or wrongful act of the opposite party, and (3) that the failure to make the

defense was unmixed with any fault or negligence of the petitioner. Id. The second

requirement may also be satisfied by reliance on erroneous official information given by a

court official which prevented the bill of review petitioner from making the defense. See

Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex. 1979).


                                        ANALYSIS


       By his motion for summary judgment, Rex contended that Valarie could not produce

evidence that her negligence did not contribute to her inability to present her defense, the

third element necessary for a bill of review. Taking Valarie’s summary judgment proof as



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true, as we must, see Montgomery, 669 S.W.2d at 311, her affidavits1 present two

explanations for her failure to make her defense: (1) Rex repeatedly represented to Valarie

that he had or was going to dismiss the divorce, and (2) a representative of the “County

Clerk[’]s office” informed Valarie that no pending divorce action between Rex and Valarie

could be located. We must determine whether Valarie was negligent in failing to file an

answer in the divorce in reliance upon the representations of Rex and the clerk.2


       According to Valarie’s affidavit, Rex asked Valarie, within a week of her receipt of

the divorce petition, if she would agree with his dismissal of the divorce proceeding. Valarie

agreed to the dismissal. In March, Valarie asked Rex “several times” if he had dismissed

the divorce and he informed her that he had contacted his attorney to have the action

dismissed. Valarie attempted to contact Rex’s attorney to confirm the dismissal of the

divorce, but was unable to obtain this information. Valarie had her sister contact Rex to

determine the status of the divorce and Rex told Valarie’s sister that the divorce had been



       1
          We note that Rex objected, at the summary judgment hearing, to the affidavits
constituting and containing hearsay. The context in which the court stated that “On those
grounds, it will be admitted” makes it unclear whether the court was ruling that the affidavit
was being admitted excluding those portions which were hearsay, or that the affidavit, as
presented, was being accepted as an affidavit, or both. Thus, we are uncertain whether
the trial court ruled on Rex’s hearsay objection. See TEX . R. APP . P. 33.1(a)(2)(A).
        Further, both at the hearing and on appeal, Rex indicates only that the affidavits are
“composed of hearsay statements.” However, a general objection that an affidavit contains
hearsay is insufficient to direct our attention to those portions which are objectionable. See
Jensen Constr. Co. v. Dallas County, 920 S.W.2d 761, 769 (Tex.App.–Dallas 1996, writ
denied).
       2
        Because we conclude that Valarie’s summary judgment evidence raises a material
fact question as to whether she was negligent in relying on Rex’s representations that the
divorce had been dismissed, we need not address the issue of Valarie’s reliance on the
representations of the clerk. See TEX . R. APP . P. 47.1.

                                              4
dismissed. Valarie also contacted a “County Clerk[’]s office” and was informed that no

pending divorce action could be located.3 Taking the evidence presented by Valarie as

true, we conclude that Valarie raises genuine issues of material fact as to whether she

acted without negligence in relying on the representations of Rex and as to whether she

exercised reasonable diligence in determining that she did not need to file an answer.


       Rex cites Gone v. Gone, 993 S.W.2d 845 (Tex.App.–Houston [14th Dist.] 1999, no

pet.), and Ramos v. Ramos, No. 01-98-00913-CV, 2000 Tex.App. LEXIS 8042

(Tex.App.–Houston [1st Dist.] 2000, pet. denied), for the proposition that, after proper

service is had upon a party to a lawsuit, reliance upon erroneous representations of

dismissal by the opposing party constitutes negligence as a matter of law. However, both

of these cases involved review of the actual bill of review proceedings, in which the burden

of proof is on the petitioner, rather than summary judgments, where the burden is on the

movant.


       In Gone, the trial court found that the bill of review respondent did not represent to

the bill of review petitioner that the divorce had been dismissed and, in the absence of any

other explanation, further found that the bill of review petitioner had provided no evidence

of why he failed to file an answer to the divorce. Gone, 993 S.W.2d at 847. By contrast,

the trial court made no such finding in the present case. Further, because we must accept


       3
        We express no opinion as to whether the information received by Valarie from the
“County Clerk[’]s office” constituted a mistake or error of a functionary of the court in the
discharge of their official duties. See Baker, 582 S.W.2d at 407. Rather, we note Valarie’s
attempt to contact a clerk as relevant to the determination of whether Valarie has raised a
genuine fact issue relating to the diligence she exercised in determining whether she
needed to file an answer in the divorce.

                                             5
Valarie’s affidavit evidence as true, we must conclude that Rex did represent to Valarie that

he had dismissed the divorce. As a result, we conclude that Gone is inapposite.


       In Ramos, an unpublished opinion, the bill of review petitioner relied upon the

representation of the respondent’s attorney that the respondent intended to dismiss the

divorce and that, if she did not, the attorney would notify the petitioner of any future court

settings. Ramos, 2000 Tex.App. LEXIS 8042, at *11. Citing Gone, the Ramos court

concluded that the bill of review petitioner’s “lack of diligence in failing to file an answer

after receiving notice of the divorce action . . . was negligence that contributed to the entry

of the default judgment against him.” Id. at *12. However, we fail to see how Gone

supports the Ramos court’s conclusion. Further, it appears that the Ramos petitioner made

no effort to confirm the dismissal of the divorce. By contrast, Valarie’s summary judgment

evidence raises a material fact issue as to whether she exercised reasonable diligence in

attempting to confirm that Rex had dismissed the divorce.


       Thus, we conclude that neither the Gone or Ramos opinions apply to our review of

the summary judgment rendered in this case. Further, we conclude that Rex has failed to

show that Valarie’s failure to file an answer, after proper service, based on erroneous

representations of dismissal made by him constitutes negligence as a matter of law.


                                       CONCLUSION


       We conclude that Valarie’s summary judgment evidence raises a genuine issue of

material fact as to whether her reliance upon Rex’s representations that he had dismissed

the divorce was non-negligent. Therefore, we reverse the Order Granting Respondent’s

                                              6
Motion for No Evidence Summary Judgment and remand this cause to the trial court for

further proceedings.




                                             Mackey K. Hancock
                                                 Justice




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