





   MARY'S OPINION HEADING                                           






                                                                                    NO. 12-03-00339-CV
 
IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS
FLOYD THOMPSON,                                       §                             APPEAL FROM THE 
APPELLANT
 
V.                                                                         §                             COUNTY COURT OF

NATHANIEL BALLARD,
APPELLEE                                                        §                             RUSK COUNTY, TEXAS
                                                                                                                                                            
OPINION
            Appellant Floyd Thompson appeals from the denial of a bill of review.  In one issue,
Thompson contends that he was denied his right to appeal due to official misconduct and therefore
the trial court abused its discretion in denying the bill of review.  We affirm.
 
Background
            On January 12, 2001, Appellee Nathaniel Ballard filed suit in the small claims court of Rusk
County, Precinct 3, claiming that Thompson continued to drive heavy equipment across Ballard’s
property despite Ballard’s repeated objections.  Ballard claimed that he had suffered $5,000 damages
because of the resulting damage to his yard and water lines.  Both Ballard and Thompson appeared
in person when the case was heard in the small claims court on March 16, 2001.  The court rendered
judgment for Ballard, the judgment stating in pertinent part as follows:
 
              ORDERED, ADJUDGED AND DECREED BY THE COURT THAT THE PLAINTIFF,
DO HAVE AND RECOVER OF DEFENDANT, THE SUM OF $5,000.00, WITH INTEREST
THEREON AT THE RATE OF -0-% PER ANNUM, TOGETHER WITH COSTS IN THIS BEHALF
EXPENDED, AND FOR WHICH LET EXECUTION ISSUE IN PLAINTIFF’S BEHALF.  THIS
IS WITH THE UNDERSTANDING BETWEEN NATHAN BALLARD, PLAINTIFF AND FLOYD
THOMPSON, DEFENDANT THAT WHEN DEFENDANT, FLOYD THOMPSON FIXES THE
SEWAGE LINE TO THE SATISFACTION OF SEWAGE INSPECTIOR [SIC], BRUCE
GASSAWAY, THE JUDGEMENT [SIC] OF $5,000.00 WILL BE DISMISSED AND PLAINTIFF,
NATHAN BALLARD WILL TAKE NOTHING (-0-) IN THIS CASE.
 
IN THE EVENT THAT THE SEWAGE SYSTEM IS NOT FIXED IN A TIMELY MANNER THE
SUM OF $5,000.00 IS DUE IN FULL, TOGETHER WITH COSTS IN THIS BEHALF
EXPENDED, AND FOR WHICH LET EXECUTION ISSUE IN PLAINTIFF’S BEHALF.


            The clerk of the small claims court sent no copy of the judgment to Thompson.  Thompson
took no action thereafter to repair the sewage lines on Ballard’s property, nor was the sewage
inspector, Bruce Gassaway, called to approve any repairs.
            On May 10, 2001, almost two months after the rendition of the March 16, 2001 judgment,
and after its plenary power had expired, the justice court of Rusk County, Precinct 3, Place 1, entered
another judgment  under the same case number titled “Default on Judgment and Order.”  The
judgment recited that the defendant, Floyd Thompson, though duly served, had failed to appear.  The
judgment further recited that Ballard’s claim against Thompson was a liquidated claim “proved by
an instrument of writing purported to have been executed by the defendant. . . .”  Thompson never
received notice of this proceeding, and he never received a copy of the judgment until a year later
when he attempted to sell property and was told that there was a judgment against him.
            Thompson filed his petition for bill of review in May 2002 seeking to set aside both
judgments entered in the cause.  The justice court denied all relief, and the matter was appealed to
the county court at law.  The county court at law conducted a hearing on the bill of review.  The
court orally rendered judgment denying the bill of review as to the March 10 judgment, but granting
the bill of review as to the May 10 judgment.  In the written order entered, the court declared the
May 10 judgment void and denied the bill of review of the March 16 judgment.
            On appeal, Thompson contends the trial court erred in not granting a bill of review of both
judgments.  Thompson contends that since he did not receive a copy of the judgment rendered
March 16, 2001, he was denied the opportunity to appeal the case to the county court at law.  He
complains that the second judgment was rendered without notice or hearing and that the court failed
to send him a copy of the judgment.  Therefore, he was denied the opportunity to request a new trial
or to appeal because of the misconduct of the court. 
Applicable Law
            “[O]nly one final judgment shall be rendered in any case except where it is otherwise
specially provided by law.”  Tex. R. Civ. P. 301.  A court may not retry the case and render another
final judgment unless it sets aside the judgment previously rendered.  Mullins v. Thomas, 136 Tex.
215, 150 S.W.2d 83, 84 (1941).  Where a judgment is filed, a subsequent judgment in the same case
is a nullity.  Id.  Where a void judgment has been rendered and the record reflects its invalidity, the
trial court has the duty to set aside the judgment even if the petition does not satisfy all the requisites
of a bill of review.  Consol. Underwriters v. McCauley, 320 S.W.2d 60, 62 (Tex. Civ.
App.–Beaumont 1959, writ ref’d n.r.e.). 
            Only a final judgment is subject to attack by a bill of review.  48 Tex. Jur. 3d Judgments
§ 222 (1998).  It is the only remedy available to set aside a final judgment where the judgment is not
void on its face.  Id.  Final judgment in a bill of review proceeding should either deny any relief to
the petitioner or grant the bill of review and set aside the former judgment.  See Baker v. Goldsmith,
582 S.W.2d 404, 409 (Tex. 1979). Only one final judgment may be entered in a bill of review action. 
Id. 
            In a case where the parties have participated at trial and the losing party has been prevented
from filing a motion for new trial or perfecting an appeal, in order to prevail upon a petition for bill
of review, the petitioner must satisfy the following requirements set forth in Petro-Chemical
Transport v. Carroll, 514 S.W.2d 240 (Tex. 1974):
 
            (1)         a failure to file a motion for new trial or a failure to advance an appeal;
 
              (2)         caused by the fraud, accident, or wrongful act of the opposing party or by an official
mistake;
 
              (3)         unmixed with any fault or negligence on the petitioner’s part; and
 
              (4)         a meritorious ground of appeal.


Id. at 244-46; see also McDaniel v. Hale, 893 S.W.2d 652, 659-63 (Tex. App.–Amarillo 1994, writ
denied).
            In support of his assertion that he has a meritorious ground of appeal, the bill of review
plaintiff must “allege with particularity, sworn facts sufficient to constitute a [meritorious] defense.” 
Baker, 582 S.W.2d at 408.  In a situation where the petitioner seeks relief by bill of review because
he had lost his chance to file a motion for new trial or his chance of appeal, a meritorious defense
means a “meritorious ground of appeal.”  Petro-Chemical, 514 S.W.2d at 245.  “A meritorious
ground of appeal means a claim that would likely be a successful point of error in the court of
appeals.”  McDaniel, 893 S.W.2d at 672.  The petitioner must then, as a pre-trial matter, present to
the court, prima facie proof to support his claims of a meritorious ground on appeal.  Petro-Chemical, 514 S.W.2d at 245; McDaniel, 893 S.W.2d at 663.  At this initial hearing, the only
relevant inquiry is whether the petitioner has made a prima facie showing of a meritorious ground
of appeal.  See Beck v. Beck, 771 S.W.2d 141, 142 (Tex. 1989); Martin v. Martin, 840 S.W.2d 586,
591 (Tex. App.–Tyler 1992, writ denied).  “[A] meritorious ground of appeal means a meritorious
claim, whether that claim be a meritorious defense to the cause of action or . . . a meritorious ground
for the modification of the judgment. . . .”  See McDaniel, 893 S.W.2d at 667.  In Baker, the
supreme court explained what constitutes a prima facie defense or claim and how it is to be
presented.
 
Prima facie proof may be comprised of documents, answers to interrogatories, admissions, and
affidavits on file along with such other evidence that the trial court may receive in its discretion.  The
bill of review defendant may respond with like proof showing that the defense is barred as a matter
of law, but factual questions arising out of factual disputes are resolved in favor of the complainant
for the purposes of this pretrial, legal determination.  If the court determines that a prima facie
meritorious defense has not been made out, the proceeding terminates and the trial court shall dismiss
the case.


Baker,  582 S.W.2d at 409 (emphasis added).
 
Analysis
            It often occurs, as it did in this case, that the trial court does not follow the suggested
procedure and makes no pre-trial determination as to whether the bill of review petitioner has made
a prima facie showing of a meritorious defense (or ground of appeal), but tries all the bill of review
issues together.  However, the most peculiar aspect of this case is that the small claims court
rendered two judgments under the same cause number.  We shall first address the matter of the first
judgment entered.
            Thompson’s petition thoroughly documents the failure of the small claims court to send him
a copy of the judgment of the March 16, 2001 judgment.  The evidence received by the county court
at law fully substantiates this failure.  Almost all of Thompson’s evidence relates to the numerous
irregularities in the small claims court, and his entire argument deals with these procedural vices. 
In his testimony at the bill of review hearing, however, Thompson did not deny that he was present
at the trial on March 16, 2001 and that he at least heard the judgment rendered against him.
            Thompson’s petition for bill of review alleged that he had a meritorious defense to the action,
but that assertion was entirely unsupported by affidavits, admissions, or other evidence under oath
constituting prima facie proof that he had a meritorious ground of appeal whose presentation on
appeal was frustrated by the small claims court’s failure to give him notice of the judgment’s entry.
            At the bill of review hearing, Thompson simply denied that he had damaged Ballard’s
property and asserted that he had no intention of repairing Ballard’s damages.  The evidence at the
bill of review trial suggests that Thompson seeks the opportunity to relitigate the issues presented
and passed on by the small claims court at the trial on March 16, 2001.  A bill of review does not lie
where the facts and issues urged as a defense to the original suit existed and were within the
knowledge of the petitioner at the time of trial.  Equity cannot be invoked to obtain a retrial of issues
that were or could have been presented to the trial court.  See Kelly v. Wright, 144 Tex. 114, 188
S.W.2d 983, 986 (1945).  There is no evidence that Thompson possessed a defense to Ballard’s
claim that he was prevented from presenting by the error of the small claims court or by the fraud
or other acts of Ballard.  In his pleadings, Thompson did not allege, nor does the proof disclose, what
meritorious ground of appeal he possessed whose presentation was frustrated by the mistake of the
small claims court in failing to give him notice of the judgment.  Absent a prima facie showing of
a meritorious ground of appeal, Thompson was not entitled to the equitable relief requested in his
petition for bill of review.  The county court at law properly refused to grant the bill of review as to
the March 16, 2001 judgment.
            The county court at law also properly declared the subsequent judgment entered in the same
case to be void.  Neither party contends that the judgment of March 16 was not a final judgment. 
A judgment rendered subsequent to the filing of a final judgment in the same case is a nullity, unless
the trial court properly vacates the judgment previously rendered.  Woosley, 925 S.W.2d 84, 87 (Tex.
App.—San Antonio 1996, no writ) (citing Mullins, 150 S.W.2d at 84).  In the instant case, the
justice court entered a second judgment under the same cause number after the court’s plenary power
had expired.  The proceeding recited in the default judgment of May 10, 2001 was held without
service of citation on Thompson and without any other notice to Thompson or Ballard.  The
judgment recites that it was based upon a liquidated demand evidenced by an instrument in writing. 
No complaint in the record alleges a liquidated demand based on an instrument in writing, and
neither party contends that, in this case, one ever existed.  Thompson also never received notice of
the entry of the second judgment.
            Under these facts, the county court at law had the duty as well as the power to declare the
second judgment a nullity.  See McCauley, 320 S.W.2d at 62.  In determining the judgment to be
void, the court granted Thompson all the relief possible relative to the second judgment, and
Thompson’s complaint regarding the court’s action is without merit.  Thompson’s issues are
overruled.
Disposition
            Having concluded that the trial court correctly denied bill of review of the March 16, 2001
judgment and correctly declared the subsequent judgment of May 10, 2001 to be void, we affirm the
judgment.
 
                                                                                                    BILL BASS   
                                                                                                            Justice
 
 
Opinion delivered August 4, 2004.
Panel consisted of Worthen, C.J., DeVasto, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by
assignment.



(PUBLISH)
