Opinion issued August 29, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00986-CV
                           ———————————
                        ALBERT PREVOT, Appellant
                                       V.
    BANCORPSOUTH BANK F/K/A BANK OF MISSISSIPPI, Appellee



                    On Appeal from the 215 District Court
                            Harris County, Texas
                      Trial Court Case No. 2008-70880



                       MEMORANDUM OPINION

      Albert Prevot appeals the trial court’s final judgment granting BancorpSouth

Bank f/k/a Bank of Mississippi’s motion for summary judgment, and denying

Prevot’s motion for summary judgment and bill of review.
      Prevot raises two issues. First, he contends that the trial court erred because

a Texas registration judgment cannot be enforced after the foreign judgment it

registers under the Texas Uniform Enforcement of Foreign Judgment Act

(“UEFJA”) 1 expires and is no longer enforceable. Second, Prevot argues that once

a foreign judgment registered under the UEFJA later becomes unenforceable in its

home state, Texas should create an exception to the bill of review requirements to

provide a party a procedural vehicle to allow it to promptly and directly attack the

Texas registration judgment. We affirm the trial court’s judgment.

                                   Background

      Bancorp sued Prevot in federal district court in Mississippi to recover the

amount due on a promissory note guaranteed by Prevot.            In 1983, Bancorp

obtained a default judgment against Prevot in the amount of $1,176,599.78.

Because a judgment has a lifespan of seven years under Mississippi law, a party

must bring an action founded on a judgment within seven years of rendition of the

judgment. See MISS. CODE ANN. §§15-1-43, 15-1-47 (West 2007). Thus, in 1990,

1997, and 2004, Bancorp filed new suits in Mississippi state court to extend each

preceding judgment. Each of these actions was treated as a new suit, with new

cause numbers, new service, and new judgments.



1
      See TEX. CIV. & PRAC. REM. CODE ANN. §§ 35.001–.008 (West 1997 & Supp.
      2007).

                                         2
      Pursuant to the UEFJA, Bancorp domesticated its 1990 Mississippi

judgment against Prevot in Texas in 1992, its 1997 Mississippi judgment against

Prevot in Texas in 2001, and its 2004 Mississippi judgment against Prevot in Texas

in 2005. 2 Prevot did not timely file any post-judgment motion challenging the

domesticated judgments nor did he appeal from the judgments. 3 Instead, after

Bancorp conducted some post-judgment discovery, Prevot advised Bancorp that he

believed its action for recovery was barred by section 16.066 of the Texas Civil

Practice and Remedies Code 4 and urged Bancorp to cease its collection efforts

2
      The 1992 Texas judgment, which became dormant in Texas in 2002 and was never
      revived, was filed in the underlying trial court. See BancorpSouth Bank v. Prevot,
      256 S.W.3d 719, 721 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The 2001
      and 2005 Texas registration judgments, which were filed in other Harris County
      district courts, were later transferred to the underlying court and consolidated into
      one judgment.
3
      Bancorp renewed its 2004 Mississippi judgment and registered it in Texas on
      April 20, 2012. Prevot answered the 2012 Texas registration judgment in a
      proceeding currently pending in cause no. 2012-37908 in the 113th District Court
      of Harris, County, Texas. No appeal from that case has been taken.
4
      § 16.066. Action on Foreign Judgment

      (a) An action on a foreign judgment is barred in this state if the action is
      barred under the laws of the jurisdiction where rendered.

      (b) An action against a person who has resided in this state for 10 years
      prior to the action may not be brought on a foreign judgment rendered more
      than 10 years before the commencement of the action in this state.

      (c) In this section “foreign judgment” means a judgment or decree rendered
      in another state or a foreign country.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.066 (West 2008).

                                            3
pending a ruling from the trial court on the enforceability of the Mississippi

judgments. Bancorp subsequently ceased its post-judgment discovery.

      In December 2005, Bancorp filed a Motion to Enforce Mississippi Judgment

seeking to enforce the 2004 Mississippi judgment registered in Texas in 2005 or,

alternatively, the 1997 Mississippi judgment registered in Texas in 2001. Prevot

filed a response to the motion. On March 1, 2006, the trial court signed a final

order stating, “[t]he Court neither grants nor denies the motion. The Court has no

jurisdiction.” Bancorp appealed the order.

      In BancorpSouth Bank f/k/a Bank of Mississippi v. Prevot, 256 S.W.3d 719,

721 (Tex. App.—Houston [14th Dist.] 2008, no pet.), the Fourteenth Court of

Appeals concluded that the trial court had jurisdiction to enforce the 2004

Mississippi judgment filed in Texas in 2005, and that the 2005 Texas judgment is

presently enforceable in Texas. See id. at 729. Noting that Prevot had not raised

his challenges to enforcement in a timely post-judgment motion or appealed from

the judgment, and could not collaterally attack the judgment on the grounds raised

in his appeal, the Fourteenth Court stated “Prevot bears the burden to obtain an

order vacating the judgment via a bill of review. Therefore, short of Prevot’s




                                        4
prevailing on a bill of review, the trial court has no alternative but to enforce the

judgment as requested by Bancorp in its motion.” Id. 5

      On December 1, 2008, Prevot filed an original petition for bill of review.

On March 26, 2012, Bancorp filed its Motion for Final Summary Judgment. 6 In its

motion, Bancorp argued that Prevot had not met the elements of a bill of review

action. On May 25, 2012, the trial court denied Bancorp’s motion. On June 11,

2012, Prevot filed a motion for summary judgment arguing that because the

2001/2005 consolidated Texas registration judgment is based solely on two

unenforceable Mississippi judgments—the 1997 and 2004 Mississippi renewal

judgments—the Texas judgment registers nothing and is likewise unenforceable.7

Thus, Prevot concluded, he should not have to prove the normal elements of a bill

of review action in order to directly attack the judgment on that basis. Bancorp


5
      The court of appeals stated that it expressed no opinion on the merits of any later-
      filed bill of review. See Prevot, 256 S.W.3d at 729 n.15.
6
      On September 30, 2010, the trial court signed an Agreed Order Granting Partial
      Summary Judgment, finding the following five judgments had expired and were
      unenforceable: the 1983 original Mississippi judgment, the 1990 Mississippi
      renewal judgment, the 1997 Mississippi renewal judgment, the 1992 Texas
      registration judgment, and the 1998 Texas registration judgment.
7
      Pursuant to the trial court’s September 30, 2010 Agreed Order, the 1997
      Mississippi judgment expired on its own terms and, thus, became unenforceable.
      In his summary judgment motion, Prevot argued that the 2004 Mississippi renewal
      judgment cannot form the basis for a Texas registration judgment because
      Bancorp obtained a new Mississippi renewal judgment on April 20, 2012, thereby
      extinguishing the 2004 judgment, the only remaining judgment upon which the
      2001/2005 Texas registration judgment was based.

                                            5
filed a response to Prevot’s summary judgment motion as well as a motion to

reconsider the denial of its motion for summary judgment.

      On October 4, 2012, the trial court signed a final judgment granting both

Bancorp’s motion for reconsideration and motion for summary judgment and

denying Prevot’s bill of review and motion for summary judgment. Prevot timely

filed this appeal.

                               Standard of Review

      A summary judgment is subject to de novo review. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the traditional summary

judgment standard, the movant has the burden of showing that no genuine issue of

material fact exists and that he is entitled to summary judgment as a matter of law.

See Am. Tobacco Co. v. Grinell, 951 S.W.2d 420, 425 (Tex. 1997).

      When both sides move for summary judgment, and the trial court grants one

motion and denies the other, reviewing courts consider both sides’ summary

judgment evidence, determine all questions presented, and “render the judgment

the trial court should have rendered.” Gilbert Tex. Constr., L.P. v. Underwriters at

Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010); Mid–Continent Cas. Co. v.

Global Enercom Mgmt., Inc., 323 S.W.3d 151, 153–54 (Tex. 2010); FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Each party must

carry its own burden to establish entitlement to summary judgment by conclusively



                                         6
proving all the elements of the claim or defense as a matter of law. See TEX. R.

CIV. P. 166a(c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010);

Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 208 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied).

      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.) (citing

Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex. App.—

Austin 2000, pet. denied)). A trial court abuses its discretion if it acts in an

unreasonable or arbitrary manner, or without reference to guiding rules and

principles. Id.

                                        Discussion

      In Prevot, the Fourteenth Court of Appeals stated that, in order to obtain

relief from the 2001/2005 consolidated Texas registration judgment, Prevot “bears

the burden to obtain an order vacating the judgment via a bill of review.” Id. at

729. Thereafter, Prevot filed his original bill of review action, and the parties filed

cross-motions for summary judgment. On October 4, 2012, the trial court granted

Bancorp’s motion for summary judgment, and denied both Prevot’s bill of review

and motion for summary judgment. It is from this judgment that Prevot now

appeals.



                                          7
      A. Bancorp’s Motion for Summary Judgment

      In its summary judgment motion, Bancorp argued that it was entitled to

summary judgment because Prevot failed to meet his burden of establishing the

requisite elements of a bill of review. A bill of review is an equitable proceeding

brought by a person seeking to set aside a judgment that is no longer subject to

challenge by a motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93,

96–97 (Tex. 2004); Wolfe v. Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied).

      Generally, a bill of review plaintiff must allege and prove (1) a meritorious

claim or defense to the cause of action that supports the judgment, (2) which he

was prevented from making by fraud, accident, or wrongful act of the opposing

party, (3) unmixed with any fault or negligence of his own. Caldwell, 154 S.W.3d

at 96; Wolfe, 53 S.W.3d at 773. Additionally, a bill of review is proper only when

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

a former judgment. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003);

Wolfe, 53 S.W.3d at 773. This due diligence requirement is distinct from the three

elements of the bill of review. Caldwell v. Barnes, 975 S.W.2d 535, 537–38 (Tex.

1998). A plaintiff, however, is not required to prove these elements if the plaintiff

can demonstrate that he was not properly served. See Barnes, 975 S.W.2d at 537.

Bills of review, which seek relief from final judgments, “are scrutinized by the



                                         8
courts ‘with extreme jealousy, and grounds on which interference will be allowed

are narrow and restricted.’” Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex. App.—

Houston [1st Dist.] 2006, no pet.)

      In his bill of review, Prevot argued that he had a meritorious defense to

enforcement of the 2001/2005 consolidated Texas registration judgment because

the Texas judgment violated the “one judgment” rule and, thus, was void. 8          He

further asserted that he was prevented from making this meritorious defense by the

fraud, action, or wrongful act of Bancorp, unmixed with any fault or negligence of

his own. However, Prevot presented no evidence whatsoever in his bill of review

to show that Bancorp prevented him from raising his purported meritorious defense

either through fraud, accident, or wrongful act, unmixed with any fault or

negligence of his own.      Further, we note that Prevot’s asserted meritorious

defense—that the 2001/2005 consolidated Texas registration judgment violates the

one judgment rule—was previously considered and rejected by the Fourteenth

Court in Prevot. See 256 S.W.3d at 719.9 Nor did Prevot show, much less argue,

that he was excused from meeting the requirements of a bill of review because he

was not properly served. See Barnes, 975 S.W.2d at 537. Indeed, after noting in

8
      See TEX. R. CIV. P. 301 (“Only one final judgment shall be rendered in any cause
      except where it is otherwise specially provided by law.”).
9
      See Prevot, 256 S.W.3d at 729 & n.13 (concluding that Prevot’s “one judgment”
      argument did not fit within defined categories of “void” judgment and, thus,
      Prevot may not collaterally attack Texas judgment by characterizing it as “void”).

                                          9
his appellate brief that Bancorp’s summary judgment was predicated on the

argument that Prevot had failed to satisfy the elements of a bill of review, Prevot

states “[t]he weakness of the Bank’s argument is that it focuses on the current bill

of review rules—rules which this lawsuit seeks to change.” Thus, on appeal,

Prevot appears to concede that he failed to meet the required elements of a bill of

review.

      In sum, Prevot did not present any summary judgment evidence

demonstrating that Bancorp prevented him from asserting a meritorious defense to

enforcement of the 2001/2005 consolidated Texas judgment by fraud, accident, or

wrongful act, unmixed with any fault or negligence of his own. Thus, he raised no

genuine issue of material fact as to the second and third elements of a bill of

review.   As such, the trial court did not err in granting Bancorp’s summary

judgment motion. Concomitantly, in light of Prevot’s failure to meet the required

elements of a bill of review, we conclude that the trial court did not abuse its

discretion in denying Prevot’s bill of review.

      B. Prevot’s Motion for Summary Judgment

      In his motion for summary judgment, Prevot asserted that the 2001/2005

consolidated Texas registration judgment is unenforceable because the 1997 and

2004 Mississippi judgments upon which the Texas judgment is based have expired

and are unenforceable and, thus, the Texas judgment is also unenforceable. Prevot



                                         10
also argued that he was entitled to summary judgment because the 2001/2005

Texas judgment violates the “one judgment” rule as a matter of law.

      As the plaintiff, Prevot had to plead and prove the elements of his bill of

review action. Caldwell, 154 S.W.3d at 96; Wolfe, 53 S.W.3d at 773. As a movant

for summary judgment, Prevot had the burden of proving that there was no genuine

issue of material fact and that he was entitled to judgment as a matter of law.

Grinnell, 951 S.W.2d at 420. In his summary judgment motion, Prevot addressed

only the first element of a bill of review (i.e., that he had a meritorious defense) but

failed to address or present any evidence with regard to the second and third

elements (i.e., that he was prevented from asserting his defense due to fraud,

accident or wrongful act of Bancorp, unmixed with any negligence of his own).10

Having failed to prove the second and third elements, Prevot was not entitled to

summary judgment on his bill of review action. As such, the trial court did not err

in denying Prevot’s motion for summary judgment.

      C. Exception to Bill of Review Requirements

      In his second issue, Prevot urges this Court to create an exception to the

current bill of review requirements. Specifically, he contends that a bill of review


10
      Further, we note that Prevot’s argument in his summary judgment that the Texas
      judgment violates the “one judgment” rule was previously rejected by the
      Fourteenth Court as an impermissible collateral attack. See Prevot, 256 S.W.3d at
      729 & n.13.



                                          11
plaintiff should not be required to prove the second and third elements of his action

when a Texas registration judgment purportedly becomes unenforceable after the

foreign judgment it registers expires and is no longer enforceable. In such a case,

Prevot contends that “[t]he normal elements of a bill of review are irrelevant: they

do not apply and thus it is error to robotically apply them.”

      In support of his argument that this Court create an exception, Prevot notes

that the rules regarding bill of review actions “have constantly [been] changed over

the years by Texas courts.” Prevot first cites Alexander v. Hagedorn, 226 S.W.2d

996 (Tex. 1950), the seminal case in which the Texas Supreme Court set forth the

elements that a plaintiff must allege and prove in a bill of review proceeding. See

id. at 998. Prevot then discusses three Texas Supreme Court cases in which the

Court created an exception to the bill of review requirements: Hanks v. Rosser, 378

S.W.2d 31, 34 (Tex. 1964), Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d

240, 245 (Tex. 1974), and Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870 (Tex.

1975).

      In Hanks, the Supreme Court held that where a defendant was misled by the

district court clerk’s misinformation into not filing a timely motion for new trial

after a default judgment had been taken, the defendant did not have to show that he

was prevented from filing a motion for new trial due to some accident, fraud, or

wrongful act of the opposing party. See 378 S.W.2d at 34. In Carroll, the Court



                                          12
held that, “a bill of review may be predicated on a clerk’s failure to send the notice

required by [Texas Rule of Civil Procedure] 306d” without requiring that the party

prove fraud, accident, or wrongful act of the opposing party. See 514 S.W.2d at

245. In Sanchez, the Court held that “proof of defendant not having been served

with citation obviates the necessity of pleading and proving the second Hagedorn

requirement: that the defendant was ‘prevented from making (his meritorious

defense) by fraud, accident, or wrongful act of the opposite party . . . .’” 525

S.W.2d at 871.11

      We find Prevot’s argument in support of his request that this Court create an

exception to the bill of review requirements unpersuasive. Initially, we note that

all the cases cited by Prevot in which an exception to the bill of review

requirements was recognized were decided by the Texas Supreme Court. More

importantly, however, in each of these cases, the bill of review plaintiff was misled

by an officer of the court or otherwise denied due process. Here, Prevot has not

alleged any issues regarding deficient service or lack of notice.

      The fundamental policy underlying bills of review in Texas remains the need

to protect the finality of judgments. See Mabon Ltd. v. Afri-Carib Enters, Inc., 369

S.W.3d 809, 812 (Tex. 2012) (“Courts narrowly construe the grounds on which a

11
      Prevot also cites to Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.
      Ct. 896 (1988), in which the United States Supreme Court held that the first and
      second Hagedorn elements are obviated when a bill of review plaintiff is not
      served with citation in the underlying case. See id. at 485 U.S. 85, 108 S. Ct. 899.

                                           13
plaintiff may obtain a bill of review due to Texas’ fundamental public policy

favoring the finality of judgment.”). In Alexander, the Texas Supreme Court

explained this policy as follows:

      Because it is fundamentally important in the administration of justice
      that some finality be accorded to judgments, these essentials have
      been uniformly recognized by our courts; therefore, bills of review
      seeking relief from judgments ‘are always watched by courts of equity
      with extreme jealousy, and the grounds on which interference will be
      allowed are narrow and restricted’; and the rules are not to be relaxed
      merely because it may appear in some particular case that an injustice
      has been done.

226 S.W.2d at 998.

      In sum, the cases cited by Prevot in support of his request for a judicially

created exception to the bill of review requirements are inapposite. In light of

Texas’ fundamental public policy favoring the finality of judgments, we decline

Prevot’s invitation to recognize an exception to the current requirements in a bill of

review proceeding. We overrule Prevot’s second issue.12




12
      Because of our disposition of his first issue, we do not reach Prevot’s second issue
      addressing whether a Texas judgment that registers a foreign judgment that later
      expires renders the Texas judgment unenforceable. See TEX. R. APP. P. 47.1.

                                           14
                                    Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Higley, and Sharp.




                                        15
