Opinion issued March 17, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-14-00271-CV
                            ———————————
                       BILLY RAY BARNES, Appellant
                                         V.
                      MARQUITA DEADRICK, Appellee


                    On Appeal from the 257th District Court
                             Harris County, Texas
                       Trial Court Case No. 2013-06126


                                   OPINION

      Billy Ray Barnes appeals the trial court’s denial of his petition for bill of

review to set aside a default judgment rendered in a suit affecting the parent-child

relationship. In one issue, Barnes asserts that the trial court abused its discretion
by denying his petition based on appellee Marquita Deadrick’s affirmative defense

of res judicata.

      We reverse and remand.

                                    Background

      Billy Ray Barnes is the father of M.B., a minor child born on February 8,

1997. Marquita Deadrick is M.B.’s half-sister. In 2007, Deadrick filed a suit

affecting the parent-child relationship (SAPCR) with respect to M.B., following

the death of M.B.’s mother.

      On April 9, 2009, the trial court signed an order in the SAPCR proceeding.

The order recited that Deadrick had appeared at trial with her attorney on March

23, 2009. The order stated that, although he had been “duly and properly cited,

[Barnes] did not appear [at trial] and wholly made default.”

      The trial court appointed Deadrick as M.B.’s sole managing conservator and

appointed Barnes as the child’s possessory conservator. The order gave Deadrick

“a superior right to the child at all times” and provided that Barnes would have

supervised visitation with M.B. It also required Barnes to pay $514.55 in monthly

child support to Deadrick.

      Although not part of the appellate record, it is not in dispute that Barnes filed

a bill of review with regard to the SAPCR order. In the bill of review proceeding,

the trial court’s associate judge made a docket sheet entry on September 10, 2010.



                                          2
The associate judge noted that, although Deadrick had appeared with counsel on

that date, neither Barnes nor his counsel had appeared. Following that notation,

the associate judge wrote on the docket sheet, “Bill of Review denied.” No written

order was signed memorializing the docket sheet entry. Instead, on February 15,

2011, the presiding judge of the trial court signed an “Order for Dismissal for Want

of Prosecution.” The order stated, “All counsel of record in the above mentioned

case were notified by this court that this matter was set for final trial on the merits

on 2-14-11.” The order indicated that “[n]either counsel appeared.” The order

concluded, “Accordingly, it is ordered that the above styled cause is dismissed for

want of prosecution.”

      Barnes initiated a second bill-of-review proceeding on January 31, 2013,

seeking to set aside the April 9, 2009 default order in the SAPCR proceeding. It is

this second-filed bill-of-review action that is the subject of the instant appeal.

      In his sworn bill-of-review petition, Barnes averred that he had been

“prevented by [Deadrick] from asserting his parental rights to the child” in the

2009 SAPCR proceeding because he “was served via substitute service at an

incorrect address and thus never received notice of the pending action.”             He

claimed that his “failure to assert the claim was not a result of any negligence or

fault of [his].” Barnes asserted that there was “no legal remedy now available to

avoid the effect of the order.”       Barnes stated, “Despite the exercise of due



                                           3
diligence, [he] did not discover [Deadrick’s] fraud until more than thirty days after

rendition of the judgment.”

         Deadrick answered the petition, asserting the affirmative defense of res

judicata. Deadrick claimed as follows: (1) there was a “prior final judgment by the

[trial] court” in Barnes’s “previously filed bill of review”; (2) both Barnes and

Deadrick were parties to the earlier filed bill-of-review proceeding; and (3) the

second-filed petition for bill of review “is based on the claims that were raised or

could have been raised in the first action.”

         The trial court conducted a hearing on December 2, 2013. At the hearing,

the trial court first heard, and overruled, Deadrick’s special exceptions to Barnes’s

bill-of-review petition. The trial court then immediately stated, without prompting

from Deadrick’s counsel, that it believed Deadrick’s affirmative defense of res

judicata “may have some merit.” The court then initiated a dialogue with counsel

regarding the defense.

         In this discussion, Deadrick asserted that Barnes’s first bill-of-review

petition had been denied on September 10, 2010 by the trial court’s associate

judge.     Deadrick’s attorney stated that he and Deadrick had appeared at that

September 10, 2010 hearing, but Barnes had not appeared at that hearing.

Deadrick’s counsel stated that the associate judge had denied Barnes’s first bill-of-

review petition “for failure to appear” at hearing. Deadrick’s attorney informed the



                                           4
trial court that the associate judge had noted her denial of the first bill-of-review

petition on the docket sheet in that proceeding.

        Deadrick’s attorney offered a copy of the docket sheet from the first bill-of-

review proceeding.         The docket sheet contained a notation, initialed by the

associate judge, stating that neither Barnes nor his counsel had appeared at the

September 10, 2010 hearing and indicating that the first bill-of-review petition had

been denied.

        Barnes’s attorney responded that she did not know what had happened at the

September 10, 2010 hearing because she was not involved with the case at that

time. She stated that, although she “did not know what to make of the bench notes

[that is, the docket sheet],” she had learned that the first bill-of-review action had

been dismissed for want of prosecution in a signed order by the presiding judge of

the trial court in 2011.

        At the end of the December 2, 2013 hearing in the instant action, the trial

court agreed with Deadrick that the associate judge’s 2010 denial of the first bill of

review, as noted in the docket sheet, was res judicata of the second bill of review

action. The court stated that the bill-of-review claim had been “ruled on more than

three years ago. It was denied at that time, and res judicata applies.” The trial

court signed an order denying the second bill-of-review petition on January 9,

2014.



                                           5
      Barnes filed a motion for new trial, challenging the trial court’s denial of his

second bill-of-review petition. He pointed out that the associate judge’s 2010

denial of first bill-of-review petition, as indicated in the docket sheet, had “never

[been] reduced to a written” order. Rather, the only signed, final order from the

first proceeding had been the February 2011 order signed by the presiding judge,

dismissing the first proceeding for want of prosecution. In support of his motion

for new trial, Barnes offered a copy of the February 15, 2011 order, which

dismissed the first bill-of-review action for want of prosecution.

      Deadrick responded to the motion. Among her assertions, Deadrick averred

that Barnes’s second bill-of-review petition had been appropriately denied based

on the doctrine of res judicata. She offered the docket sheet from first bill-of-

review proceeding, pointing out that, according to the associate judge’s notation,

Barnes’s first bill-of-review petition had been denied on September 10, 2010.

      Deadrick further asserted that it was procedurally improper for Barnes to

challenge the trial court’s denial with a motion for new trial. She claimed that

Barnes’s only post-judgment remedy was to file an appeal.

      Deadrick also sought sanctions against Barnes. She asserted that Barnes’s

motion for new trial had been filed for “an improper purpose,” including “to harass

or to cause unnecessary delay or needless increase in cost of litigation.”




                                          6
      Following a hearing, the trial court denied Barnes’s motion for new trial. In

its order, the trial court found “Barnes’s claim is barred by res judicata” and his

motion for new trial was “procedurally improper.” The trial court also found that

Barnes had filed the motion for new trial for “an improper purpose” and sanctioned

him $2,700, representing Deadrick’s “reasonable attorney’s fees.”

      This appeal followed. In one issue, Barnes asserts that the trial court abused

its discretion when it denied his second petition for bill of review based on

Deadrick’s affirmative defense of res judicata. Specifically, Barnes claims that the

associate judge’s notation on the docket sheet, indicating that she had denied

Barnes’ first bill-of-review petition on September 10, 2010, could not serve as a

basis for res judicata when the presiding judge later signed an order dismissing the

action for want of prosecution.

                                  Bill of Review

A.    Standard of Review

      In reviewing the granting or denial of a bill of review, every presumption is

indulged in favor of the court’s ruling, which will not be disturbed unless it is

affirmatively shown that there was an abuse of discretion. Nguyen v. Intertex, Inc.,

93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The trial

court may be reversed for abusing its discretion only if it has acted in an




                                         7
unreasonable or arbitrary manner or without reference to any guiding rules and

principles. Id. at 293.

B.    Res Judicata

      The doctrine of res judicata applies to bill-of-review proceedings. See Rizk

v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980); Holloway v. Starnes, 840 S.W.2d 14,

19 (Tex. App.—Dallas 1992, writ denied); see also Alexander v. Alexander, No.

03–12–00688–CV, 2014 WL 2211355, at *2 (Tex. App.—Austin May 23, 2014,

no pet.) (mem. op.) (applying res judicata to second bill of review in divorce

proceeding). To establish res judicata, the defendant must demonstrate “(1) a prior

final judgment on the merits by a court of competent jurisdiction; (2) identity of

parties or those in privity with them; and (3) a second action based on the same

claims as were raised or could have been raised in the first action.” Amstadt v.

U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

      In this case, the inquiry is whether there was a “prior final judgment on the

merits.” Deadrick asserts that she established this element by showing that the

associate judge denied Barnes’s first bill-of-review petition on September 10,

2010, as indicated by a hand-written notation on the docket sheet.

      A docket-sheet entry ordinarily forms no part of the record that may be

considered; rather, it is a memorandum made for the trial court and clerk’s

convenience. In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—



                                         8
Houston [1st Dist.] 2006) (orig. proceeding). Docket-sheet entries are inherently

unreliable because they lack the formality of orders and judgments. Id. (citing

First Nat’l Bank of Giddings, Tex. v. Birnbaum, 826 S.W.2d 189, 191 (Tex.

App.—Austin 1992, no writ)). Perhaps due to this unreliability, a docket-sheet

entry is generally considered insufficient to constitute a judgment or decree of the

court. Id. (citing Formby’s KOA v. BHP Water Supply Corp., 730 S.W.2d 428,

430 (Tex. App.—Dallas 1987, no writ)). Significant to this case, a docket-sheet

entry cannot contradict, overrule, or take the place of a written order or judgment.

Kalyanaram v. Burck, 225 S.W.3d 291, 303 (Tex. App.—El Paso 2006, no pet);

Bill Heard Chevrolet, 209 S.W.3d at 315; see also Garza v. Tex. Alcoholic

Beverage Comm’n, 89 S.W.3d 1, 7 (Tex. 2002).

      Here, on February 15, 2011, the presiding judge signed a written order

dismissing Barnes’s first bill-of-review suit for want of prosecution. That ruling

prevails over the docket-sheet notation made by the associate judge denying the

bill of review petition. See Kalyanaram, 225 S.W.3d at 303; Bill Heard Chevrolet,

209 S.W.3d at 315; see also Garza, 89 S.W.3d at 7.

      Although the presiding judge’s order dismissing the action for want of

prosecution does not state whether the suit was dismissed with or without

prejudice, we presume that the dismissal was without prejudice. See In re G.H.D.,

No. 01–05–00228–CV, 2005 WL 2671031, at *3 (Tex. App.—Houston [1st Dist.]



                                         9
Oct. 20, 2005, no pet.) (mem. op.); see also Christensen v. Chase Bank U.S.A.,

N.A., 304 S.W.3d 548, 554 (Tex. App.—Dallas 2009, pet. denied) (discussing

general rule that dismissal for want of prosecution is without prejudice to refiling).

A dismissal for want of prosecution without prejudice to its refiling is not an

adjudication on the merits. See Massey v. Columbus State Bank, 35 S.W.3d 697,

700 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); In re Hughes, 770 S.W.2d

635, 637 (Tex. App.—Houston [1st Dist.] 1989, no writ). Rather, it places the

parties in the position they were in prior to filing the action “just as if the suit had

never been brought.” Hughes, 770 S.W.2d at 637. Thus, an order dismissing an

action for want of prosecution without prejudice, such as the one in this case, does

not serve as a final judgment on the merits for purposes of res judicata. See Carter

v. Charles, 853 S.W.2d 667, 672 (Tex. App.—Houston [14th Dist.] 1993, no writ)

(holding that dismissal of earlier action without prejudice was not res judicata as to

later filed suit); see also Christensen, 304 S.W.3d at 554. Because Deadrick did

not show that there was a final judgment on the merits with respect to Barnes’s

first bill-of-review action, the trial court had no discretion to deny the instant bill-

of-review petition based on the affirmative defense of res judicata. 1


1
      It is also unclear whether the associate judge’s verbal denial of the first bill-of-
      review petition was “on the merits.” The docket sheet entry indicates that neither
      Barnes nor his counsel appeared at the September 10, 2010 hearing. Following
      the notation of non-appearance, the docket sheet entry indicates that the petition
      was denied. From its placement, there appears to be a correlation between the

                                           10
C.    Alternate Theory to Affirm

      Deadrick intimates that, even if the trial court did not properly deny Barnes’s

petition based on the doctrine of res judicata, denial was nonetheless appropriate.

Deadrick points out that the trial court’s order denying the petition does not specify

the reason for the denial, and Barnes did not request findings of fact and

conclusions of law. Deadrick relies on the legal precept that, when the trial court

does not make separate findings of fact and conclusions of law, we imply that the

trial court made all necessary findings, and we will uphold the trial court’s decision

on any legal theory supported by the evidence. See Mauldin v. Clements, 428

S.W.3d 247, 262 (Tex. App.—Houston [1st Dist.] 2014, no pet.).




      non-appearance and the denial of the petition. Moreover, at the December 2, 2013
      hearing in this case, Deadrick’s counsel represented to the trial court that the first
      bill-of-review action had been denied because Barnes had failed to appear at the
      September 10, 2010 hearing. Although the associate judge indicated on the docket
      sheet that the first bill-of-review was “denied,” not dismissed, it is not apparent
      from the limited record whether this ruling was intended to be a default judgment
      or whether it was intended to be a dismissal for want of prosecution. No transcript
      from the hearing appears in the record. We recognize that courts have held that a
      default judgment can constitute a determination on the merits for res judicata
      purposes. See, e.g., Bovey v. Coffey, No. 09–11–00445–CV, 2012 WL 1448530,
      at *4 (Tex. App.—Beaumont April 10, 2012, no pet.) (mem. op.); Reliance
      Capital, Inc. v. G.R. Hmaidan, Inc., No. 14–07–01059–CV, 2009 WL 1325441, at
      *4 (Tex. App.—Houston [14th Dist.] May 14, 2009, pet. denied) (mem. op.);
      Jones v. First Bank of Anson, 846 S.W.2d 107, 110 (Tex. App.—Eastland 1992,
      no writ). However, as discussed, a dismissal for want of prosecution, without
      prejudice, is not an adjudication on the merits and does not serve as res judicata to
      preclude a later-filed action. See Carter v. Charles, 853 S.W.2d 667, 672 (Tex.
      App.—Houston [14th Dist.] 1993, no writ).

                                            11
      Deadrick asserts that the trial court’s denial of Barnes’s bill-of-review

petition may be upheld because Barnes did not offer proof at the December 2, 2013

hearing to show each element of his bill-of-review claim. A bill-of-review plaintiff

must ordinarily plead and prove (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. Caldwell v. Barnes (Caldwell II), 154 S.W.3d

93, 96 (Tex. 2004) (citing Baker v. Goldsmith, 582 S.W.2d 404, 406–07 (Tex.

1979)).   Procedurally, a bill of review petitioner must factually allege with

particularity that the preceding judgment was a result of fraud, accident, or a

wrongful act of the opposing party or official mistake unmixed with his own

negligence. Baker, 582 S.W.2d at 408. Then, at a pretrial hearing, the petitioner

must set forth prima facie proof of a meritorious claim or defense to the underlying

cause of action. Id.

      The Supreme Court of Texas, however, has made clear that allegations of

non-service of process—as advanced by Barnes in this case—reduce a bill-of-

review plaintiff’s burden:

      Bill of review plaintiffs claiming non-service . . . are relieved of two
      elements ordinarily required to be proved in a bill of review
      proceeding. First, if a plaintiff was not served, constitutional due
      process relieves the plaintiff from the need to show a meritorious
      defense. Second, the plaintiff is relieved from showing that fraud,



                                        12
       accident, wrongful act or official mistake prevented the plaintiff from
       presenting such a defense.

              Bill of review plaintiffs alleging they were not served, however,
       must still prove the third and final element required in a bill of review
       proceeding that the judgment was rendered unmixed with any fault or
       negligence of their own. In Caldwell, we said this third and final
       element is conclusively established if the plaintiff can prove that he or
       she was never served with process. An individual who is not served
       with process cannot be at fault or negligent in allowing a default
       judgment to be rendered.            Proof of non-service, then, will
       conclusively establish the third and only element that bill of review
       plaintiffs are required to prove when they are asserting lack of service
       of process as their only defense.

....

              In sum, when a plaintiff seeks a bill of review based solely on a
       claim of non-service, the bill of review procedure outlined in
       Goldsmith must be slightly modified. When a plaintiff claims lack of
       service, the trial court should: (1) dispense with any pretrial inquiry
       into a meritorious defense, (2) hold a trial, at which the bill of review
       plaintiff assumes the burden of proving that the plaintiff was not
       served with process, thereby conclusively establishing a lack of fault
       or negligence in allowing a default judgment to be rendered, and (3)
       conditioned upon an affirmative finding that the plaintiff was not
       served, allow the parties to revert to their original status as plaintiff
       and defendant with the burden on the original plaintiff to prove his or
       her case.

Caldwell II, 154 S.W.3d at 96–97 (citations omitted).

       The supreme court expounded on its earlier holdings in Ross v. National

Center for the Employment of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006).

Although a bill-of-review petitioner must normally show that he exercised due

diligence to assert all adequate legal remedies before filing the bill of review, see



                                          13
Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998), the Ross court re-

emphasized that the absence of proper service modifies the elements of a bill of

review. Ross, 197 S.W.3d at 797. The court reiterated that a party who has not

been properly served “is entitled to a bill of review without a further showing,

because the Constitution discharges the first element, and lack of service

establishes the second and third.” Id. This holding applies even when a party

becomes aware of the proceedings and fails to participate. See id. at 797–98. The

court stated, “While diligence is required from properly served parties or those

who have appeared . . . those not properly served have no duty to act, diligently or

otherwise.” Id. (citations omitted).

      Here, Barnes’s bill-of-review action is founded on his claim that he was not

served with process in the SAPCR suit, which resulted in the 2009 default order he

now challenges.2 In his sworn bill-of-review petition, Barnes asserted that he “was


2
      The dissent states that Barnes’s second bill of review is barred by Barnes’s failure
      to file a motion to reinstate his first bill-of-review action under Rule of Civil
      Procedure 165a, and the dissent notes that Barnes did not file his own SAPRC
      seeking to modify the April 9, 2009 default order, establishing conservatorship
      and child support. Barnes’s failure to move to reinstate the first bill of review
      proceeding under Rule 165a was never raised or relied on by Deadrick in the trial
      court (or on appeal) as a reason for denying the second bill-of-review petition. We
      recognize that this Court may “uphold a lower court judgment on any legal theory
      before it, even if the court gives an incorrect reason for its judgment.” Guar.
      County Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (emphasis
      added). At least one court of appeals has held that a judgment cannot be affirmed
      based on a ground not presented to the trial court and to which the opposing side
      has not had an opportunity to respond. See Victoria Gardens of Frisco v. Walrath,
      257 S.W.3d 284, 290 (Tex. App.—Dallas 2008, pet. denied). With respect to the

                                           14
served via substitute service at an incorrect address and thus never received notice

of the pending action.” Appended to his petition is a verification in which Barnes

states, “I, Billy Ray Barnes, Petitioner, swear under oath that the facts stated in the

above Original Petition for Bill of Review are true and correct.”

      The record reflects that, on December 2, 2013, the trial court conducted a

hearing in the instant bill-of-review proceeding. The hearing began with the trial

court’s considering, and denying, Deadrick’s special exceptions to Barnes’s

petition.   Immediately following its denial of Deadrick’s special exceptions

request, the trial court initiated a discussion regarding Deadrick’s affirmative

defense of res judicata, stating, “[B]ut I think your res judicata claim may have

some merit [as opposed to the request for special exceptions.]” The court and the

parties then engaged in a discussion regarding the propriety of Deadrick’s claim


      fact that Barnes did not seek to modify the 2009 default order, we note that this
      Court has previously held that a bill of review petitioner, challenging a
      conservatorship order, is not required to first file an action seeking modification of
      that order, if the matters raised in the bill-of-review petition differ from those that
      would be raised in a suit to modify. Blum v. Mott, 664 S.W.2d 741, 744 (Tex.
      App.—Houston [1st Dist.] 1983, no writ) (holding that issue of fraud, of which
      appellant complained in bill of review, could not properly be raised in proceeding
      to modify conservatorship; thus, appellant was not required to seek relief under the
      provisions of the Family Code before filing her bill of review). Here, the issue of
      Barnes’s non-service, raised in his bill-of-review petition, would not properly be
      raised in a suit seeking modification of the 2009 SAPCR order. See id.
      (explaining that issue of fraud would not properly be raised in modification action
      because governing Family Code section focused on changed circumstances after
      entry of challenged conservatorship order, while bill-of-review petition was based
      on appellee’s alleged fraudulent representations to appellant made before entry of
      the order).

                                            15
that Barnes’s second bill-of-review action was barred by the principle of res

judicata.   Deadrick based her res judicata defense on the associate judge’s

September 10, 2010 oral denial of Barnes’s first bill-of-review petition, as

indicated by associate judge’s docket notation in the earlier proceeding.

      At the December 2013 hearing, Barnes’s counsel defended against

Deadrick’s res judcata claim by pointing out that the only written order in the first

bill-of-review action had been the 2011 order, signed by the presiding judge,

dismissing that suit for want of prosecution. However, the trial court agreed with

Deadrick’s assertion that the associate judge’s 2010 oral denial of the first bill-of-

review petition, as noted in the docket sheet, established res judicata as to the

second bill-of-review action.

      The trial court concluded the hearing by stating as follows with respect to

Barnes bill-of-review petition: “I agree with you [Deadrick], it’s been ruled on [by

the associate judge]. It was ruled on more than three years ago [in 2010]. It was

denied at that time, and res judicata applies. Y’all are excused.” That was the end

of the hearing.

      In her appellate brief, Deadrick asserts,

      [T]he history of this case, namely [Barnes’s] allowing a default to be
      taken against him on the original bill in 2010, and in allowing for that
      bill to be subsequently dismissed in 2011, and the delay in re-filing
      this second bill, suggests a pattern of inattentiveness to court
      proceedings upon which judgment denying his bill could rest. That
      Appellant would allow a default against him on his own petition

                                         16
       would suggest that . . . the original default in 2009 . . . could also be
       attributed to this inattentiveness.

       However, given his allegations, Barnes’s “attentiveness” in the SAPCR suit

is not an issue here. As discussed, when a bill-of-review plaintiff claims no service

of process, the only issue to be determine is whether he was served. See Caldwell

II, 154 S.W.3d at 96–97; Ross, 197 S.W.3d at 797. It follows that a party, who is

not served with process, cannot be negligently “inattentive” in that proceeding.

See Caldwell II, 154 S.W.3d at 97 (“An individual who is not served with process

cannot be at fault or negligent in allowing a default judgment to be rendered.”).

We cannot ascertain how Barnes’s conduct in the bill-of-review proceedings would

have any relevance to whether his negligence, if any, resulted in his non-service in

the SAPCR suit. Cf. Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex.

2004) (affirming denial of a bill of review when petitioner never received service

that was properly sent by the Texas Secretary of State because petitioner was

negligent in failing to update addresses for its registered agent and registered

office).

       Moreover, Barnes’s “delay in re-filing [the] second bill” does not support

the trial court’s denial of the petition.3 Generally, a bill-of-review plaintiff must


3
       The dissent cites Davis v. Smith, 227 S.W.3d 299, 304 (Tex. App.–Houston [1st
       Dist.] 2007, no pet.) for the proposition that “a party who fails to timely avail itself
       of available legal remedies is not entitled to relief by bill of review.” However,
       Davis differs from the present case in a significant way. In Davis, the bill-of-

                                              17
file his claim within four years of rendition of the judgment he attacks. See PNS

Stores, Inc. v. Rivera, 379 S.W.3d 267at 275 (Tex. 2012). Here, the default

SAPCR order was signed on April 9, 2009. After his first bill-of-review petition

was dismissed without prejudice to its re-filing, Barnes filed his second bill-of-

review petition on January 31, 2013, within the four-year limitations period. Rizk,

603 S.W.2d at 775. The record does not support denial of the second bill-of-

review action based simply on the timing of when it was filed. See Caldwell, 975

S.W.2d at 538 (rejecting laches defense to petition for bill of review and reversing

summary judgment against bill-of-review plaintiff, who had filed action within

four-year limitations period but had waited nearly two years to file action after

learning of the default judgment).

      On appeal, Deadrick also claims that Barnes failed to offer any evidence at

the hearing to show that the 2009 default SAPCR order was not taken against him

“due to his own fault or negligence.” However, the record shows that Barnes was

not put to his proof on the merits of his claim at the December 2, 2013 hearing.

      review plaintiff sought to utilize a bill-of-review action to challenge a judgment
      dismissing a lawsuit for want of prosecution. See id. at 301. There, the plaintiff
      had not exhausted her available legal remedies to challenge the dismissal
      judgment before she filed the bill-of-review petition. See id. at 303–304. In
      contrast, Barnes seeks to use the bill-of-review procedure to challenge the SAPCR
      default judgment rendered against him in a case in which he asserts that he had not
      been served. In other words, while Davis turned on whether the appellant could
      utilize a bill-of-review action to challenge a dismissal judgment in a case she had
      filed, the present case turns on whether Barnes can utilize the bill-of-review
      process to challenge a default judgment rendered against him in case where he
      asserts no service. Thus, Davis is not controlling here.

                                          18
The trial court did not conduct the hearing in accordance with the usual order of

proceedings for a trial, which begins with the parties making opening statements

followed by the introduction of evidence by the party “upon whom rests the burden

of proof on the whole case.”       See TEX. R. CIV. P. 265 (specifying order of

proceedings in jury trials); see also TEX. R. CIV. P. 262 (providing that rules

governing trial before a jury shall govern trials by court where applicable). Rather,

the record shows that the trial court chose to determine Barnes’s bill of review on

Deadrick’s affirmative defense of res judicata without first hearing evidence from

Barnes.

      The Supreme Court of Texas has stated that a trial court may, in its

discretion, conduct a bill-of-review trial in one hearing, or it may conduct it in

separate hearings. Baker, 582 S.W.2d at 409 (citing TEX. R. CIV. P. 174(b)). In

making this statement, the supreme court cited Rule of Civil Procedure 174(b),

which permits a trial court to order separate trials for any claim or issue “in

furtherance of convenience or to avoid prejudice.” See TEX. R. CIV. P. 174(b); see

also Grocers Supply, Inc. v. Cabello, 390 S.W.3d 707, 726 (Tex. App.—Dallas

2012, no pet.) (“An issue that is tried separately under rule 174 need not constitute

a complete lawsuit in itself.”).

      When Rule 174(b) was promulgated, the “Opinion of Subcommittee on

Interpretation of Rules” stated, “The [trial] court has authority to order trial on any



                                          19
plea in bar or any separate issues and to render judgment solely on the plea or issue

tried found to be decisive.” TEX. R. CIV. P. 174(b), Opinion of Subcommittee on

Interpretation of Rules (citing 5 Tex. B.J. 125 (1942); 8 Tex. B.J. 12 (1945)).

Embracing this concept, other courts have determined that a separate trial may be

conducted on a defensive issue and, at the close of that trial, judgment may be

rendered based solely on the defensive issue. See, e.g., In re K.M.T., 415 S.W.3d

573, 575 (Tex. App.—Texarkana 2013, no pet.) (concluding that hearing, at which

trial court dismissed petitioner’s paternity suit with prejudice for failure to comply

with statute of limitations, was a separate trial pursuant to Rule 174(b)); Phipps v.

Miller, 597 S.W.2d 458 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) (upholding

separate trial on defendant’s plea of limitation). Here, neither Barnes nor Deadrick

objected when the trial court chose to proceed by hearing Deadrick’s affirmative

defense of res judicata rather than first determining whether Barnes could meet his

burden on the bill of review. Thus, we treat the procedure utilized by the trial

court in this case as a separate trial of the defensive issue of res judicata, which

resulted in the trial court’s rendition of the judgment denying Barnes’s bill of

review.

      We note that, had the trial court determined that res judicata did not bar

Barnes’s bill-of-review action, further proceedings would have been necessary.

See K.M.T., 415 S.W.3d at 577, n.5. At that point, Barnes would have been



                                         20
required to meet his burden to offer evidence showing that he was not served with

process in the SAPCR action. But, because the res-judicata issue was dispositive

in this case, nothing further was left for the trial court to adjudicate. See id. Even

if Barnes had offered evidence showing non-service, Deadrick’s affirmative

defense of res judicata had already formed a separate, independent basis for

denying the bill of review. See In re M.Y.W., No. 14–06–00185–CV, 2006 WL

3360482, at *2 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (“An

affirmative defense does not rebut the factual propositions of the plaintiff’s

pleading, but, instead, allows the defendant to introduce evidence to establish an

independent reason why the plaintiff should not prevail.”).

      On this record, Barnes’s presentation of evidence to show he was not

negligent with respect to the judgment taken in the SAPCR action, that is, that he

was never served, would not have changed the outcome. See id. Thus, we do not

agree with Deadrick that the trial court’s denial of Barnes’s bill-of-review petition

could be based on the alternate theory that Barnes failed to offer proof to support

his claim at the hearing.

      Lastly, in her brief, Deadrick asserts that Barnes cannot show that any error

resulting from the trial court’s denial of the bill-of-review petition was harmful

error. See TEX. R. APP. P. 44.1(a). She claims that, to demonstrate harm, Barnes

was required to have made an offer of proof, pursuant to Rule of Evidence 103, to



                                         21
preserve in the record the evidence he would have offered to establish his claim

had it not been denied by the trial court. See TEX. R. EVID. 103. However, the

primary purpose of an offer of proof is to enable the reviewing court to determine

whether the trial court erred by a ruling to exclude evidence and, if so, whether

such error in excluding the evidence was harmful. See Fletcher v. Minn. Mining &

Mfg. Co., 57 S.W.3d 602, 608 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

Here, Barnes presents no issue challenging an evidentiary ruling by the trial court

to exclude evidence; thus, Rule of Evidence 103 has no application.

                                    Conclusion

      We hold that the trial court abused its discretion when it denied Barnes’s

bill-of-review petition. Accordingly, we sustain Barnes’s sole issue. We reverse

the judgment of the trial court and remand the case for further proceedings.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Keyes, Higley, and Brown.

Justice Keyes, dissenting.




                                         22
