                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00048-CV

MARTHA MARIA SARABIA,
                                                             Appellant
v.

BELINDA DIANE BURNETTE,
                                                             Appellee



                           From the 413th District Court
                              Johnson County, Texas
                           Trial Court No. C-2012-00042


                           MEMORANDUM OPINION


       Martha Maria Sarabia appeals from the trial court’s order denying her petition

for bill of review. We affirm.

                                    Background Facts

       On February 17, 2009, Sarabia filed suit against Belinda Diane Burnette for

negligence. On September 7, 2011, Sarabia was served with notice of intent to dismiss

for want of prosecution. The dismissal was set for September 20, 2011, but prior to that

date, Sarabia filed a motion to retain. Sarabia alleges in her petition for bill of review,
that on September 15, 2011, she was informed by the trial court clerk that the case was

retained and that it had been taken off the dismissal docket.

        On October 3, 2011, Sarabia received an order from the court dismissing the case.

She filed a motion to reinstate without the required verification, and the trial court

denied the motion. After discovering the mistake, Sarabia filed a motion to reconsider.

The trial court denied the motion to reconsider because the verification was attached to

the motion to reconsider rather than the motion to reinstate. Sarabia then filed a motion

to reinstate with proper verification, and the trial court denied the motion for lack of

jurisdiction. On January 12, 2012, Sarabia filed her petition for bill of review.

                                      Bill of Review

        In her sole issue on appeal, Sarabia argues that the trial court abused its

discretion and violated her due process rights by dismissing her petition for bill of

review without conducting a hearing. 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, 752 (Tex.

2003), cert. den’d, 541 U.S. 1030 (2004); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979).

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 bill's proponent, fraud, accident, or mistake precludes presentation of a

meritorious claim or defense. King Ranch, Inc., at 752; Baker, 582 S.W.2d at 408. The



Sarabia v. Burnette                                                                    Page 2
grounds upon which a bill of review can be obtained are narrow because the procedure

conflicts with the fundamental policy that judgments must become final at some point.

King Ranch, Inc., at 752. Thus, a bill of review petitioner must ordinarily plead and

prove (1) a meritorious cause of action, (2) that the petitioner was prevented from

making by the fraud, accident or wrongful act of his or her opponent, and (3) the

petitioner was not negligent. Id.

        The petition for bill of review must allege factually and with particularity that

the prior judgment was rendered as the result of fraud, accident or wrongful act of the

opposite party or official mistake unmixed with his own negligence. Baker, 582 S.W.2d

at 408. The complainant must further allege, with particularity, sworn facts sufficient to

constitute a cause of action and, as a pretrial matter, present prima facie proof to

support the contention.     See Baker, 582 S.W.2d at 408.      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. Baker,

582 S.W.2d at 409.

        The record does not show that Sarabia presented evidence of a meritorious cause

against Burnette. In outlining the procedure for a petition for bill of review, the Court

in Baker did not require the trial court to conduct a hearing on the petition. The Court

found that a preliminary showing is essential in order to assure the court that valuable

judicial resources will not be wasted by conducting a spurious "full-blown" examination

of the merits. See Baker, 582 S.W.2d at 408. We do not find that the trial court abused its

discretion in denying the petition for bill of review. We overrule the first issue.

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                                       Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 16, 2012
[CV06]




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