Opinion issued February 2, 2016




                                  In The

                           Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                           NO. 01-15-00208-CV
                           NO. 01-15-00701-CV
                        ———————————
                      JOE PAYTON LEE, Appellant
                                    V.
                        RITA LEMONS, Appellee
                                   and
                        RITA LEMONS, Appellant
                                    V.
                      JOE PAYTON LEE, Appellee



                 On Appeal from the 151st District Court
                          Harris County, Texas
                    Trial Court Case No. 2013-55684


                       MEMORANDUM OPINION
      Joe Payton Lee, appearing pro se, appeals the trial court’s denial of his bill

of review challenging Rita Lemons’s default judgment against him. Rita Lemons,

also appearing pro se, cross-appeals the trial court’s denial of her counterclaims

seeking damages and equitable relief. On December 17, 2015, this Court issued an

opinion and judgment in Appellate Cause No. 01-15-00208-CV affirming the trial

court’s judgment. We withdraw our December 17, 2015 opinion and judgment and

issue this opinion and judgment in their stead. See TEX. R. APP. P. 19.1(a). The

disposition remains the same. Finding no error, we affirm.

                                 BACKGROUND

      Joe Lee sought a bill of review setting aside Rita Lemons’s 2001 default

judgment against him. In his petition, Lee alleges that he was never served with

process in the 2001 proceeding and did not find out about it until 2011. He further

alleges that his daughter forged his signature on corporate papers to make it appear

as though he was involved in her business, and hired a lawyer to answer Lemons’s

lawsuit, without his knowledge. Lee sued Lemons and Harris County Constable

May Walker to stop the forced sale of his real property to satisfy his judgment

debt. He also petitioned the trial court for a restraining order blocking the sale of

any of his property.




                                         2
      Rita Lemons answered and asserted various counterclaims. At trial, Lemons

failed to appear. Lee made a brief statement, but presented no testimony or other

evidence. The trial court denied Lee’s bill of review and Lemons’s counterclaims.

                                  DISCUSSION

      Lee raises three issues on appeal. He first complains that the trial court erred

by finding him liable for the debts of his daughter’s company, Classic Medical and

Dental Clinic. In his second issue, he contends that Lemons’s 2001 suit was an

abuse of process because he was shielded from liability and Lemons failed to serve

him. He claims that the trial court’s failure to respond to these abuses deprived him

of due process. Lastly, Lee claims that any judicial sale of his property would

affect his wife’s interest in it under Texas community property law, violating her

rights under Texas statute and the Texas and federal constitutions.

A. Standard of Review

      A bill of review is an equitable proceeding brought by a party seeking to set

aside a prior judgment that is no longer subject to challenge by a motion for new

trial or appeal. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010);

Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). A bill of review plaintiff must

plead and prove (1) a meritorious defense to the underlying cause of action,

(2) which the plaintiff was unable to present due to the fraud, accident or wrongful

act of the opposite party or official mistake, (3) unmixed with any negligence of



                                          3
his own. Caldwell, 154 S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d 404, 406–

07 (Tex. 1979). A bill of review plaintiff claiming lack of notice of a trial setting is

relieved of proving the first two elements, but still must prove the third element:

lack of fault or negligence. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d

809, 812 (Tex. 2012) (per curiam); Caldwell, 154 S.W.3d at 96–97. This element

requires a party to show that it diligently pursued all adequate legal remedies.

Mabon Ltd., 369 S.W.3d at 813. “Standing alone, ‘the fact that an injustice may

have occurred is not sufficient to justify relief by bill of review.” In re Office of

Att’y Gen., 276 S.W.3d 611, 618 (Tex. App.—Houston [1st Dist.] 2008, orig.

proceeding [mand. denied]) (quoting Temple v. Archambo, 161 S.W.3d 217, 224

(Tex. App.—Corpus Christi 2005, no pet.)).

      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 v. Smith, 227

S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A trial court

abuses its discretion if it acts in an unreasonable or arbitrary manner, or without

reference to guiding rules and principles. Id.

B. Lee’s Claims

      Lee claims that the trial court erred in ordering him to pay the default

judgment against him and denying the bill of review. We construe this as a

complaint that the trial court abused its discretion in weighing the evidence. In the



                                           4
trial on his bill of review, Lee made an opening statement in which he asserted that

he had nothing to do with Classic Medical and Dental Clinic or his daughter’s

business dealings and that he should not have to pay the judgment. He discussed

documents pertaining to Classic Medical and Dental Clinic’s status and various

related legal proceedings. Lee did not, however, present any evidence. He did not

testify, call any witnesses, or offer any documentary evidence into the record. After

hearing Lee’s statement, the trial court denied his bill of review. Lee bore the

burden of proving that he was not served with process. Caldwell, 154 S.W.3d at

97. Because he produced no evidence to meet this burden the trial court was within

its discretion in denying his bill of review. See Davis, 227 S.W.3d at 302.

      In Lee’s claim for abuse of process, Lee alleges misconduct by Lemons,

including harassment, extortion, and failure to serve him with process. To support

these allegations, Lee relies on transcripts from a federal-court sanctions

proceeding brought against Lemons. He has attached these transcripts to his brief,

along with related court records. These records, however, do not appear in the trial

record in this proceeding. With limited exceptions not relevant here, we cannot

consider documents that were not included in the trial record. Nguyen v. Intertex,

Inc., 93 S.W.3d 288, 292–93 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Lee

did not present any evidence in the trial court. Thus, the record contains no

evidence to support Lee’s claim. He cannot complain that the trial court should



                                          5
have found in his favor on his abuse-of-process claim when there is no basis in the

trial record to support such a finding. See JLG Trucking, LLC v. Garza, 466

S.W.3d 157, 165 (Tex. 2015) (observing that plaintiff bears burden of proving her

cause of action); Nguyen, 93 S.W.3d at 292–93.

         Lee alleges also that the trial court deprived him of due process by failing

to act against Lemons’s abuse. It is not clear, however, exactly which of the trial

court’s actions Lee protests. His brief does not specify any particular action by the

trial court that deprived him of his rights, apart from its disposition of his bill of

review. Lee’s brief does not contain any argument or citation supporting his due

process claim. Because Lee is proceeding pro se, we liberally construe his brief.

TEX. R. APP. P. 38.9; Manderscheid v. Laz Parking of Texas, LLC, No. 01-13-

00362-CV, 2015 WL 6081802, at *1 n.1 (Tex. App.—Houston [1st Dist.] Oct. 15,

2015, no pet. h.). We cannot, however, make his arguments for him. Jordan v.

Jefferson Cty., 153 S.W.3d 670, 676 (Tex. App.—Amarillo 2004, pet. denied).

Accordingly, we hold that Lee has inadequately briefed this issue and thus waived

it. See TEX. R. APP. P. 38.1(i); see also Stephens v. Dolcefino, 126 S.W.3d 120,

129–30 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex.

2005).

      Finally, Lee challenges the planned sale at judicial auction of his real

property on the grounds that it is his wife’s property under Texas marital property



                                          6
law. A bill of review seeks to set aside a judgment that is in some way defective.

See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). In order to

prevail, a plaintiff must show that she was prevented by some outside factor from

making a meritorious claim or defense in the proceeding that produced the

challenged judgment. Fernandez, 315 S.W.3d at 511 n.30. Lee’s complaint

pertains to the enforcement of a judgment, not the underlying judgment’s validity.

Further, Lee did not raise this argument in the trial court. As a prerequisite for

review, the Rules of Appellate Procedure require that a complaint be made to the

trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).

Because Lee did not timely present his community-interest claim to the trial court,

he has waived review of his complaint on appeal. Id.

C. Lemons’s Counterclaims

       Lemons cross-appeals the trial court’s denial of her counterclaims at trial

and requests various other types of relief.1 Her brief is a laundry list of claims

against Lee, but none are substantiated in the record or supported with citation or

legal argument. We hold that the trial court did not err in denying Lemons’s

counterclaims because Lemons did not appear at trial and presented no supporting

evidence. See Walker v. Kleiman, 896 S.W.2d 413, 416 (Tex. App.—Houston [1st

1
    Although Lemons’s notice of appeal in 01-15-00701-CV references a final
    judgment dated June 29, 2015, the record does not contain a judgment on that
    date and the only final judgment in the underlying case was the February 17,
    2015 denial of Lee’s bill of review and Lemons’s counterclaims.

                                        7
Dist.] 1995, no pet.) (holding that trial court may render take-nothing judgment on

counterclaim of defendant who fails to appear for trial). To the extent that Lemons

complains of the trial court’s disposition of Lee’s bill of review rather than her

counterclaims, we hold that she waived her complaints by inadequately briefing

them. TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to

the record.”).

      Lemons also has filed multiple motions in this court, including requests for

summary judgment. We deny Lemons’s purported motions for summary judgment.

As an appellate court, we are without jurisdiction to hear pre-trial motions or to

grant summary judgment. See generally TEX. GOV’T CODE ANN. §§ 22.220–221

(West 2004 & Supp. 2015).

                                 CONCLUSION

      We affirm the judgment of the trial court. All other pending motions are

dismissed as moot.




                                             Jane Bland
                                             Justice

Panel consists of Justices Jennings, Keyes, and Bland.


                                         8
