                                     NO. 07-03-0313-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                    DECEMBER 21, 2004

                            ______________________________


            PETRO EXPRESS, LTD. AND WILLIAM BOBBORA, APPELLANTS

                                              V.

                        HORKEY OIL COMPANY, INC., APPELLEE


                          _________________________________

              FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2002-519,035; HONORABLE ANDREW J. KUPPER, JUDGE

                           _______________________________


Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1


                                 MEMORANDUM OPINION


      Appellants Petro Express, Ltd. and William Bobbora challenge an order denying their

bill of review by which they seek to set aside a final judgment that appellee Horkey Oil



      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Company, Inc. recover $400,000 plus attorney’s fees and interest. Presenting a sole issue,

Petro and Bobbora contend they established a meritorious defense to Horkey’s suit on a

$400,000 note executed by Petro and guaranteed by Bobbora and others who are not

parties here. Although we agree that the threshold requirement of a meritorious defense

was established, we affirm the denial of the bill of review.


       On February 8, 1999, Petro executed and delivered an unsecured promissory note

payable to Horkey in the principal amount of $400,000 bearing nine per cent interest. On

that same date, Bobbora and others executed a written guaranty agreement for payment

of the note to the holder of the note. After Petro defaulted, Horkey filed suit against Petro,

Bobbora, and others seeking judgment on the note and based on the guaranty agreement.

In response to Horkey’s request for admissions, among other admissions, Petro and

Bobbora’s former attorney responded that the copy of the note and guaranty agreement

were true and correct copies.


       Thereafter, referencing Petro and Bobbora’s admissions and other matters, by its

second motion pursuant to Rule 166a(i) of the Texas Rules of Civil Procedure, commonly

denominated a no-evidence motion, Horkey sought summary judgment on the note and

guaranty agreement. The motion was supported by Joe Horkey’s affidavit, as president of

Horkey, which, as material here, recited that the attached note was a true and correct copy,

the corporation was the holder of the note and Bobbora’s written guaranty, and provided

the outstanding balance. After considering the evidence, the trial court rendered judgment


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that Horkey recover $400,000 plus attorney’s fees and interest against Petro and Bobbora.

Petro and Bobbora’s former attorney filed a notice of appeal together with an unopposed

motion to extend the time for filing the notice. Thereafter, in cause number 07-02-0119-CV,

by order of November 7, 2001, this Court dismissed the appeal for want of jurisdiction and

failure to comply with the Texas Rules of Appellate Procedure, specifically by not complying

with a notice from the Clerk of this Court for payment of the required filing fee and motion

fee. This Court further rendered Petro and Bobbora’s motion to dismiss moot.


        In a severed proceeding against another guarantor, after requesting to examine the

original promissory note, on or about June 20, 2002, other counsel discovered that the note

and guaranty agreement had been transferred by Horkey to Plains National Bank pursuant

to a commercial security agreement to secure payment of a note of Joe Horkey,

individually. Accordingly, on August 19, 2002, Petro and Bobbora filed this bill of review

in a separate cause number. Following Horkey’s answer, on May 30, 2003, substituted

counsel for Petro and Bobbora and counsel for Horkey appeared and announced ready to

proceed with an evidentiary hearing on the bill of review. By order signed July 1, 2003, the

trial court denied the bill of review.




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                                       Bill of Review2


       A bill of review is an equitable proceeding to set aside a judgment that is not void

on the face of the record but is no longer appealable or subject to a motion for new trial.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A bill of review is proper

where a party has exercised due diligence to prosecute all adequate legal remedies against

a former judgment and at the time the bill of review is filed, there remains no such adequate

legal remedy still available because through no fault of the proponent, fraud, accident, or

mistake precludes presentation of a meritorious claim or defense. Id. To be successful in

a bill of review, the plaintiff must allege and prove:


       C        a meritorious defense to the cause of action alleged to support the
                judgment;
       C        which fraud, accident, or the opposing party’s wrongful act prevented
                him from presenting; and
       C        without any fault or negligence of his own.


Id. at 752.


       Whether a meritorious defense has been established is a question of law for the

court to determine as a preliminary issue. See Baker v. Goldsmith, 582 S.W.2d 404, 409

(Tex. 1979); McDaniel v. Hale, 893 S.W.2d 652, 669 n.33 (Tex.App.–Amarillo 1994, writ

denied). We review questions of law de novo. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513,



       2
           See W. Wendell Hall, Standards of Review, 34 St. Mary’s L.J. 209 (2002).

                                              4
525 (Tex. 2003). If the court does not find that a prima facie meritorious defense has been

established, dismissal is proper; otherwise, the court will proceed to trial. See Martinez v.

Tex. Dept. of Protective & Reg., 116 S.W.3d 266, 270 (Tex.App.--El Paso 2003, pet.

denied).


       Because Rule 296 of the Texas Rules of Civil Procedure provides for requests for

findings of facts and conclusions of law in any case, before we address Petro and

Bobbora’s issue, we must first consider the appropriate standard of review of a judgment

following a non-jury trial where the trial court did not make any findings of fact or

conclusions of law and a reporter’s record has been provided.3 In such a case, the

appellate court presumes the trial court found all fact questions in support of its judgment

and must affirm that judgment on any legal theory supported by the pleadings and

evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987). When

a reporter’s record has been provided, the implied findings may be challenged for legal and

factual insufficiency “the same as jury findings or a trial court’s findings of fact.” Roberson

v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). In that regard, when making a legal

sufficiency determination, we consider only the evidence most favorable to the implied

findings of fact and disregard all contradictory evidence. Burnett v. Motyka, 610 S.W.2d

735, 736 (Tex. 1980). In considering whether the evidence is factually sufficient to support




       3
           Findings of fact and conclusions of law were not requested by either party.

                                               5
the implied findings, we consider and weigh all the evidence, including any evidence

contrary to the trial court’s judgment. Id.


       By their only issue, Petro and Bobbora contend they established a meritorious

defense as a matter of law. We agree.


       Because the evidence demonstrated that Horkey was not the holder of the

promissory note and the guaranty at the time judgment was signed, it was not entitled to

enforce payment. See Tex. Bus. & Com. Code Ann. § 3.301 (Vernon 2002). Although a

general denial puts in issue the allegations in the pleadings in a suit to recover on a

promissory note, a plaintiff can discharge its burden by producing and introducing the

original note into evidence. See Derbigny v. Bank One, 809 S.W.2d 292, 294 (Tex.App.--

Houston [14th Dist.] 1991, no writ). Production of the note is required to prove ownership

and that it has not been assigned or transferred to another. Haupt v. Coldwell, 500 S.W.2d

563, 565 (Tex.Civ.App.--El Paso 1973, no writ). Accordingly, we conclude Petro and

Bobbora had a meritorious defense to the motion for summary judgment if properly

presented.


       Our disposition of this case, however, does not cease with this determination. Petro

and Bobbora contend the remaining elements for a bill of review are not properly before the

court;4 however, the notice of appeal was directed to the final judgment signed on July 1,


       4
       A bill of review which does not dispose of the entire case is interlocutory and not
appealable. See Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995).

                                              6
2003, and not the letter from the trial court dated June 26, 2003, that instructed counsel for

Horkey to prepare an “appropriate order.” After the hearing, by letter dated June 26, 2003,

the trial court notified counsel it was of the opinion that Petro and Bobbora had not

established a meritorious defense and denied the bill of review. The order provided in part:


               The Court, after reviewing the evidence and hearing the argument of
       counsel, is of the opinion that Plaintiffs have failed to carry their burden to
       establish the elements necessary to prevail on their Bill of Review. Therefore,
       the Bill of Review is denied.
             All relief requested in this case and not expressly granted is denied.
       This judgment finally disposes of all parties and claims and is appealable.


Also, among other things, the reporter’s record shows that counsel for Petro and Bobbora

argued the second and third elements at trial. We conclude the provisions of the judgment

are controlling for these purposes, notwithstanding the June 26 letter.


       In addressing the second and third elements of a bill of review, Petro and Bobbora

contend they were prevented from making their defense because of fraud, accident,

wrongful act, or mistake of Horkey and through no fault of their own. They also argue the

judgment was unjust and the product of fraud because it was based on Horkey’s false

affidavit provided in support of the motion for summary judgment. However, a judgment

based upon false swearing is not a ground for setting aside a judgment. See Tice v. City

of Pasadena, 767 S.W.2d 700, 702-03 (Tex. 1989); Crouch v. McGaw, 134 Tex. 633, 138

S.W.2d 94, 96 (1940).




                                              7
      Focusing on the requirements of diligence and the absence of negligence on the part

of Petro and Bobbora, we note that by not timely filing their appeal from the judgment, the

requirement of diligence was not satisfied. See French v. Brown, 424 S.W.2d 893, 895

(Tex. 1967). Further, notwithstanding section 3.301 of the Business and Commerce Code,

and the rule that a general denial will compel the party seeking to recover on a note to

produce it, it appears that Petro and Bobbora’s former counsel caused the admissions to

be made without conducting any discovery. As no evidence or argument was presented

to suggest that even limited discovery was prevented by the fraud or wrongful act of

Horkey, we conclude the presumed finding against the absence of negligence is supported

by the evidence. Petro and Bobbora’s sole issue is overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                          Don H. Reavis
                                            Justice




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