                              NUMBER 13-11-00542-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

ROBERT MARTINEZ,                                                         Appellant,

                                              v.

MARIA ELENA MARTINEZ,                                                    Appellee.


                On appeal from the County Court at Law No. 6
                         of Hidalgo County, Texas.


                           MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Perkes
                 Memorandum Opinion by Justice Perkes
       Appellant, Robert Martinez, appeals the trial court’s order denying his bill of review

regarding the divorce decree. Appellant argues: (1) the trial court erred by denying his

bill of review; (2) the trial court, after subsequently granting his bill of review, erred by

reinstating its prior order denying his bill of review; (3) the trial court erred by failing to

equitably divide the community property; (4) the trial court erred by dividing the

community property without a hearing; (5) the trial court erred by inequitably dividing the
community property in the presence of fraud; (6) the trial court erred by failing to give

notice of the final divorce decree dividing community property; and (7) the trial court

violated the “Due Process Clause of the Constitution” by entering a judgment without

notice or service.1 We affirm.

                        I. FACTUAL AND PROCEDURAL BACKGROUND2

        In 1999, Maria Elena Martinez (“Maria”), appellee, filed for divorce. On November

25, 2009, the trial court signed the divorce decree. It states that the trial court heard the

case on December 19, 2005 but also that it “later heard this case on the same issues by

submission of written summations and property division proposals.” 3                              The divorce

decree states that “Petitioner, MARIA ELENA MARTINEZ, appeared in person and

through attorney of record, FERNANDO G. MANCIAS, and announced ready for trial [and

that] Respondent, ROBERTO MARTINEZ, appeared through attorney of record,

FRANCISCO PRADO, and announced ready for trial.” It further states that a jury was

waived and all questions of fact and law were submitted to the court for decision.

        According to the decree, the trial court granted a divorce, divided the parties’

marital property, and ordered payment of back child support and other relief.                                 The

divorce decree notes that the divorce was rendered in court on December 19, 2005 but

signed on November 25, 2009. The record does not show that any subsequent hearings
        1
            We have reorganized and restated appellant’s issues for the sake of clarity.
        2
            The clerk’s record includes a copy of the final decree of divorce but does not otherwise include
any of the filed documents from the divorce proceeding. The court reporter’s record includes the court
reporter’s transcript from the bill of review hearings but does not include any transcripts from hearings in the
divorce proceeding.
        3
             During the October 19, 2010 hearing on the bill of review, the trial court took judicial notice of its
files, and, “in particular[,] notice that there was a submission by Mr. Francisco Prado, Jr. [appellant’s trial
attorney], on November 10th, 2009, filed for record on November 12, 2009.” The decree of divorce shows
that the trial court also considered “the proffer of evidence and proposal for property in that division
submitted by Petitioner [Maria] and dated June 30, 2006.”
                                                        2
were held in the divorce action, either before or after the entry of the divorce decree, or

that appellant filed any motion for new trial or any other post-judgment motions in the

divorce action.

       On August 9, 2010, appellant filed a bill of review. During the bill of review

proceeding, appellant testified that he had learned that the divorce decree was signed in

2009. On December 1, 2010, the trial court entered judgment, denying appellant’s bill of

review. On February 8, 2010, the trial court granted appellant’s motion for a new trial in

the bill of review action, but on July 22, 2011, the trial court entered an “Order Reinstating

Prior Order” granting Maria’s motion for reconsideration and holding that “[t]he Judgment

entered by this Court dated February 8, 2011 is hereby set aside; and that the order of

December 1, 2010 is hereby REINSTATED.” This appeal followed.

                                     II. BILL OF REVIEW

       A bill of review is an equitable proceeding brought to set aside a prior judgment

where the time to file a motion for new trial or appeal has passed. Caldwell v. Barnes,

154 S.W.3d 93, 96 (Tex. 2004) (per curiam); Transworld Fin. Servs. Corp. v. Briscoe, 722

S.W.2d 407, 407 (Tex. 1987). The 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. Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.

1984); Garza v. Att’y Gen., 166 S.W.3d 799, 807 (Tex. App.—Corpus Christi 2005, no

pet.) (citing King Ranch, Inc. v. Chapman III, 118 S.W.3d 742, 751 (Tex. 2003)).

Therefore, “[t]he burden on a bill of review petitioner is heavy.” Garza, 166 S.W.3d at

807–08; Layton v. NationsBank Mortgage Corp., 141 S.W.3d 760, 763 (Tex. App.—

Corpus Christi 2004, no pet.).

                                              3
        We review the denial of a bill of review under an abuse of discretion standard.

Garza, 166 S.W.3d at 810–11; Manley v. Parsons, 112 S.W.3d 335, 337

(Tex. App.—Corpus Christi 2003, pet. denied).                 The test for abuse of discretion is

whether the trial court acted arbitrarily or unreasonably, or whether it acted without

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985); Garza, 166 S.W.3d at 810–11. A trial court does not

abuse its discretion when it makes its decision on conflicting evidence and some

evidence supports its judgment. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.

2009); Garcia–Udall v. Udall, 141 S.W.3d 323, 333 (Tex. App.—Dallas 2004, no pet.)

(citing David v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Burns v. Burns, 116 S.W.3d 916,

921 (Tex. App.—Dallas 2003, no pet.)).4

                                             III. DISCUSSION

        Given our deferential standard of review in this case, “appellant must show that the

trial court’s action was arbitrary or unreasonable in light of all the circumstances of the

case, i.e., whether the trial court acted without reference to any guiding rules and

principles.” Lewis v. Johnson, 97 S.W.3d 885, 887 (Tex. App.—Corpus Christi 2003, no

pet.) (citing Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.—Corpus Christi 2002, pet.

denied); Downer, 701 S.W.2d at 241–43). Appellant has failed to do so.

        Although appellant arguably asserts the above-referenced issues, his argument is,

for the most part, solely based on conclusory statements without reference to the record

and without support of any case authority or legal analysis. Appellant generally cites

        4
         We note that findings of fact and conclusions of law were neither requested nor filed in this case.
As such, it is implied that the trial court made all the findings necessary to support its judgment. See
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

                                                     4
case authority regarding the standard of review for the division of community property but

thereafter fails to identify any property that was improperly distributed or otherwise show

why the community property division was inequitable and therefore manifestly unjust or

unfair. Appellant also generally cites case authority regarding the failure to give notice of

judgment but thereafter fails to make any reference to the record or otherwise present any

argument on this issue. Appellant’s remaining argument states, in full, that he never took

part in the divorce proceedings; that he was never advised by counsel of hearing dates

and court appearances; that he did not know the divorce was finalized; that his attorney

did not receive notice that the divorce decree was signed by the court; and that the court

did not have an evidentiary hearing on the estate. Appellant, however, does not provide

citations to the record, does not present any further legal authority, and does not

otherwise make any legal argument regarding these matters.

        Even under a liberal construal of the briefing rules in the Texas Rules of Appellate

Procedure,5 we are constrained to hold that appellant’s argument is waived. See TEX.

R. APP. P. 38.1 (g), (i); Flores v. United Freedom Assocs., 314 S.W.3d 113, 116 (Tex.

App.—El Paso 2010, no pet.) (overruling argument as inadequately briefed because

appellant failed to cite legal authorities or present argument); Moreno Denoso v. State,

156 S.W.3d 166, 183 (Tex. App.—Corpus Christi 2005, pet. ref’d) (overruling issue

because appellant did not cite authority for the proposition); Devine v. Dallas County, 130

S.W.3d 512, 513–14 (Tex. App.—Dallas 2004, no pet.) (overruling issue because

appellant “failed to provide a single record citation in his brief, and some of the issues

        5
          See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (“[W]e
have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally,
so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the
purpose of the rule.” (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997))).
                                                     5
contain[ed] no citation to legal authority.”); City of Fort Worth v. DeOreo, 114 S.W.3d 664,

679 (Tex. App.—Fort Worth 2003, no pet.) (appellant waived issue by giving “no record

references, arguments, or case law to support its contention.”); Lueg v. Lueg, 976 S.W.2d

308, 312 (Tex. App.—Corpus Christi 1998, pet. denied) (holding argument waived

because “brief cites us to no specific record references for these alleged facts on

record.”). As our sister appellate court noted:

       It is the Appellant’s burden to discuss [his] assertions of error. An
       appellate court has no duty—or even right—to perform an independent
       review of the record and applicable law to determine whether there was
       error. Were we to do so . . . we would be abandoning our role as neutral
       adjudicators and become an advocate for that party.

Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Appellant’s

issues are inadequately briefed and waived. See TEX. R. APP. P. 38.1 (g), (i).

       However, even if we were to consider appellant’s issues, appellant would still not

be entitled to equitable relief by way of bill of review. In order to prevail and set aside a

judgment by bill of review, a party must plead and prove: (1) a meritorious defense to the

underlying cause of action; (2) justification for failure to present the defense by fraud,

accident, or wrongful act of the opposing party or official mistake; and (3) the default

judgment was rendered through no fault or negligence of his own. Caldwell, 154 S.W.3d

at 96; Garza, 166 S.W.3d at 810. We find the third element dispositive of this appeal and

do not therefore address the first two elements. See TEX. R. APP. P. 47.1.

       The third element not only encompasses whether a petitioner was negligent in

allowing the trial court to render judgment against him but also whether he exercised due

diligence in availing himself of all legal remedies against the former judgment. Garza,

166 S.W.3d at 817-18; Winrock Houston Assocs. Ltd. P’ship v. Bergstrom, 879 S.W.2d

                                             6
144, 140 (Tex. App.—Houston [14th Dist.] 1994, no writ) superseded on other grounds as

recognized in Glassman v. Goodfriend, 347 S.W.3d 772, 781 (Tex. App.—Houston [14th

Dist.] 2011, pet. denied). One who has neglected to pursue an alternative legal remedy,

such as a motion for new trial, an appeal, or a writ or error, is not entitled to seek equitable

relief by way of bill of review. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980); Garza,

166 S.W.3d at 818. If a petitioner had legal remedies which were available to him but

ignored, relief by equitable bill of review is unavailable. Mowbray v. Avery, 76 S.W.3d

663, 682 (Tex. App.—Corpus Christi 2002, pet. denied) (citing Wembley Inv. Co. v.

Herrera, 11 S.W.3d 924, 927 (Tex. 1999)).

       Rule of Civil Procedure 306a(4) provides:

       If within twenty days after the judgment or other appealable order is signed,
       a party adversely affected by it or his attorney has neither received the
       notice required by paragraph (3) of this rule nor acquired actual knowledge
       of the order, then with respect to that party all the periods mentioned in
       paragraph (1) shall begin on the date that such party or his attorney
       received such notice or acquired actual knowledge of the signing,
       whichever occurred first, but in no event shall such periods begin more than
       ninety days after the original judgment or other appealable order was
       signed.

TEX. R. CIV. P. 306a(4). In other words, “[i]f a party does not receive notice of the

judgment within the time frame set forth in rule 306a(4), the party can file a [rule 306(a)(5)]

motion to extend the deadlines to file postjudgment motions or seek appellate relief.”

Binnie v. Coyle, No. 13-09-00227-CV, 2010 WL 4812995, at *7 (Tex. App.—Corpus

Christi Nov. 23, 2010, no pet.) (mem. op.).

       The final divorce decree was signed on November 25, 2009. The deadline to file

a rule 306a(5) motion would have expired ninety days later, in February 2010. See TEX.

R. CIV. P. 306a(4). Appellant had actual knowledge of the signing in December 2009,

                                               7
and he had sufficient time to file a rule 306a(5) motion before the deadline. Appellant’s

failure to pursue adequate legal remedies, despite possessing knowledge that a final

decree was signed, shows that his defense was not unmixed with any fault or negligence

on his own part. See Caldwell, 154 S.W.3d at 96 (providing prerequisite elements to be

awarded bill of review); see also Binnie, 2010 WL 4812995, at *7 (holding failure to file

rule 306a(5) motion under the time extension provided in rule 306a(4) indicated

defendant was not without fault). We overrule appellant’s issues.

                                     IV. CONCLUSION

      We affirm the trial court’s judgment denying appellant’s petition for bill of review.



                                                 GREGORY T. PERKES
                                                 Justice

Delivered and filed the
14th day of February, 2013.




                                             8
