                            NUMBER 13-10-00051-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

NAOMI C. CARDONA, RUTH C. REYES,
AND EDWARD DINN,                                                           Appellants,

                                           v.

EVITA GARCIA, INDIVIDUALLY AND
AS PERSONAL REPRESENTATIVE
OF ADAN CASTILLO CUEVAS,                                                   Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez
      This is an appeal from a summary judgment (2009 Judgment) entered in a bill of

review and declaratory judgment action filed by appellee Evita C. Garcia, individually and

as personal representative of Adan Castillo Cueva (the Garcias). The trial court granted

summary judgment in favor of the Garcias. Through the 2009 Judgment, the trial court
vacated and set aside a judgment rendered on April 24, 2007 (2007 Judgment) that

denied the Garcias' request to partition the family home. Additionally, the trial court

declared that the Garcias' rights to the property had not been affected by the 2007

Judgment and that they had not been divested of any rights to that property.

        Appellants Naomi C. Cardona, Ruth C. Reyes, and Edward Dinn (the Cardonas)

appeal the 2009 Judgment. By six issues, which we consider as five, the Cardonas

contend that (1) the Garcias failed to present summary judgment evidence in the bill of

review proceeding that they were without fault in failing to present a meritorious defense

in the 2007 proceeding, (2) the Garcias failed to present summary judgment evidence in

the bill of review proceeding that they exercised due diligence in pursuing their legal

remedies after the 2007 Judgment was entered against them, (3) the summary judgment

was improper because the Garcias' claim of judicial mistake does not qualify as an official

mistake for bill of review relief, (4) the Garcias' claims of fraud are based on events in the

2007 litigation and are thus claims of intrinsic fraud which do not support summary

judgment on this equitable bill of review claim, and (5) a declaratory judgment action may

not be used to collaterally attack or to interpret a prior final judgment. We reverse and

remand.

                                            I. BACKGROUND1

                                    A. THE 2007 PARTITION SUIT2

        In 2007, the Garcias filed suit against their siblings, Cardona, Reyes, and Zulema
        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        2
          The 2007 partition suit, trial court cause number 07-163-B, was filed in the 117th Judicial District
Court of Nueces County, Texas.

                                                      2
C. Rios, to partition, by sale, the family home3 of the parties' parents, Eva C. and Manuel

Cuevas. The Garcias claimed that an undivided interest in the property passed to them

after their mother died intestate in 1975. However, the parties' father, who died testate in

1992, left the property to one child, Rios.4

        The defendants in the 2007 partition suit filed a motion for summary judgment

alleging that (1) neither the Garcias nor the defendants had an interest in the real property

because it was sold on November 11, 2006; and (2) in the alternative, the Garcias were

not entitled to a partition of the property because they did not inherit their mother's

one-half interest of the community property in 1975, rather their father did. The Garcias

did not file a response and did not attend the April 24, 2007 hearing. 5 Following the

hearing, without stating the basis for its ruling, the trial court granted the motion which, in

effect, denied the Garcias' partition request.             The Garcias timely filed a motion for

rehearing asking the trial court to set aside the April 24, 2007 judgment and to reset the

case for trial. The motion was overruled by operation of law. The Garcias did not

appeal from the 2007 Judgment.

              B. THE 2009 BILL OF REVIEW AND DECLARATORY JUDGMENT SUIT6

        In 2009, the Garcias filed a petition for bill of review seeking to set aside the 2007

        3
          The legal description of the family home is Lot Sixteen (16), Block Seven (7), Inwood Village Unit
One (1), a subdivision of the City of Corpus Christi, Nueces County, Texas. The street address is 4614
Vestal, Corpus Christi, TX 78416. It is undisputed that the property is no longer owned by any of the
parties.
        4
         Rios died during the course of the proceedings. Her son, Edward Jones Dinn, was named a
defendant in the 2009 proceeding and is a named party in this appeal.
        5
          The Garcias acknowledged receipt of notice of the April 24, 2007 hearing in their motion for
rehearing.
        6
        The 2009 suit was filed in the 117th District Court in Nueces County, Texas, as trial court cause
number 09-351-B.

                                                     3
Judgment. The petition alleged that, at the time the partition suit was filed, all siblings

were the undivided interest owners and heirs of their mother's one-half interest in the

community property.        The petition claimed that the 2007 judgment was granted

erroneously because the Cardona defendants, acting by and through their attorney's

misrepresentation and fraud without any fault or negligence of the Garcias, sought

summary judgment based on section 45 of the Texas Probate Code that was effective

September 1, 1993, and not on the applicable section 45 of the code from 1975 that

vested interest in the Garcias upon their mother's death. In the alternative, the Garcias

sought a declaration that the statute applicable to their mother's estate was section 45 of

the Texas Probate Code, effective January 1, 1956 to September 1, 1993. The Garcias

also requested "a declaratory judgment to determine the rights and interest of the parties"

with regard to their mother's property.

       The Garcias filed a motion for summary judgment claiming entitlement to a bill of

review because: (1) they had proven their meritorious defense to the 2007 Judgment,

i.e., that the trial court erred when it applied the wrong law; (2) the Cardonas engaged in

extrinsic fraud; and (3) the Garcias were not at fault. The motion did not, however,

address due diligence.

       In the motion, the Garcias also requested that summary judgment be granted on

their declaratory judgment action, should the trial court deny their bill of review. The

Garcias stated that the basis for such declaratory relief was that "there [was] no issue of

fact that [their] partition suit did not determine the interest rights of [the Garcias]." In their

motion, the Garcias asserted that no request for a determination of ownership of the

property was made in the original answer to the partition suit, and therefore, if the bill of

                                                4
review was denied, the trial court should "grant them a summary judgment for a

declaratory judgment that the order on the summary judgment did nothing to [a]ffect the

ownership interest rights of [the Garcias] and they [were] free to claim an interest on the

property of the [estate of their mother]."7 The Cardonas did not file a response to the

Garcias' motion for summary judgment and did not offer any evidence or attend the

hearing on the motion.

        The trial court granted summary judgment on the Garcias' petition for bill of review

and set aside and vacated the original 2007 Judgment.                         It also granted summary

judgment on the Garcias' request for declaratory relief, declaring that the Garcias'

inheritance rights through their mother on the property in question had not been affected

by the 2007 Judgment and that they had not been divested of any property rights they had

or may have had in that property. The Cardonas appeal from the 2009 Judgment.

                          II. STANDARD OF REVIEW AND APPLICABLE LAW

        When a trial court grants summary judgment in a bill of review proceeding, we

review the summary judgment using the ordinary summary judgment standards of review.

See Boaz v. Boaz, 221 S.W.3d 126, 130 (Tex. App.–Houston [1st Dist.] 2006, no pet.).

Declaratory judgments decided by summary judgment are also reviewed under the same

standards of review that govern summary judgments generally. See TEX. CIV. PRAC. &

REM. CODE ANN. § 37.010 (Vernon 2008); Ski River Dev., Inc. v. McCalla, 167 S.W.3d

121, 133 (Tex. App.–Waco 2005, pet. denied); In re Estate of Schiwetz, 102 S.W.3d 355,
        7
           The language in the Garcias' motion appears to be responsive to a proceeding brought in County
Court at Law Number 3, trial court cause number 45594-4, by Santa I. Gonzales, the current owner of the
real property at issue in this case. In that proceeding, Gonzales filed an application to determine heirship.
In her affidavit filed in support of her application, Gonzales claimed that "because the district court already
made the determination of the ownership of said Property, it would be res adjudicata [sic] to re-litigate this
matter."

                                                      5
365 (Tex. App.–Corpus Christi 2003, no pet.).

       A trial court's grant of summary judgment is reviewed de novo.               Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional summary

judgment motion, the movant must "show that except as to the amount of damages, there

is no genuine issue as to any material fact and the moving party is entitled to judgment as

a matter of law on the issues expressly set out in the motion .…" TEX. R. CIV. P. 166a(c);

see Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

       In the absence of a response to a traditional motion for summary judgment, as in

this case, a trial court may not grant a summary judgment motion by default when the

movant's summary judgment proof is legally insufficient; the motion must stand or fall on

its own merits. TEX. R. CIV. P. 166a(c); Rhone-Paulenc, Inc. v. Steel, 997 S.W.2d 217,

223 (Tex. 1999); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.

1993). And, when the nonmovant fails to respond, its grounds for appeal are limited to a

challenge of the legal sufficiency of the moving party's motion and supporting evidence.

McConnell, 858 S.W.2d at 343; see City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 (Tex. 1979); Shih v. Tamisiea, 306 S.W.3d 939, 944 (Tex. App.–Dallas

2010, no pet.); Tello v. Bank One, 218 S.W.3d 109, 118-19 (Tex. App.–Houston [14th

Dist.] 2007, no pet.). On appeal, however, "the movant still bears the burden of showing

that there is no genuine issue of material fact and that the movant is entitled to judgment

as a matter of law." Rhone-Poulenc, Inc., 997 S.W.2d at 223 (citing Nixon v. Mr. Prop.

Mgt. Co., 690 S.W.2d 546, 548 (Tex. 1985)).

       "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."

                                             6
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam); King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Because the bill of review procedure

conflicts with the fundamental policy that judgments must become final, the grounds on

which a bill of review can be obtained are narrow. Chapman, 118 S.W.3d at 751 (citing

Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950)); Temple v.

Archambo, 161 S.W.3d 217, 222 (Tex. App.–Corpus Christi 2005, no pet.). "The rules

are not to be relaxed merely because it may appear in some particular case that an

injustice has been done." Alexander, 226 S.W.2d at 998; see Wembley Inv. Co. v.

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

       Traditionally, a bill of review requires proof of three elements: (1) a meritorious

defense to the underlying cause of action; (2) that was not asserted due to fraud,

accident, or wrongful act of an opponent, or official mistake; (3) unmixed with any fault or

negligence of the movant. Ross v. Nat'l Ctr. for the Employment of the Disabled, 197

S.W.3d 795, 797 (Tex. 2006) (per curiam); Caldwell v. Barnes, 975 S.W.2d 535, 537

(Tex. 1998). As part of the burden to obtain relief by bill of review, petitioners are also

required to prove that they used due diligence to protect their legal rights after judgment.

Wembley Inv. Co., 11 S.W.3d at 927; Barnes, 975 S.W.2d at 537; Mowbray v. Avery, 76

S.W.3d 663, 682 n.28 (Tex. App.–Corpus Christi 2002, pet. denied). "If legal remedies

were available but ignored, relief by equitable bill of review is unavailable." Wembley

Inv. Co., 11 S.W.3d at 927 (citing Barnes, 975 S.W.2d at 537); Rizk v. Mayad, 603 S.W.2d

773, 775 (Tex. 1980); Garza v. Atty. Gen. of Tex., 166 S.W.3d 799, 817-18 (Tex.

App.–Corpus Christi 2005, no pet.).



                                             7
                                    III. BILL OF REVIEW ANALYSIS

        By their second issue, the Cardonas contend, in part, that the Garcias' failure to

present summary judgment evidence that established due diligence in pursuing their

legal remedies after the 2007 Judgment was entered against them is fatal to their claim

for relief through a bill of review proceeding. Under the facts of this case, this challenge

to the legal sufficiency of the Garcias' motion and supporting evidence to establish due

diligence is a proper ground for appeal, and we will review it accordingly.                              See

McConnell, 858 S.W.2d at 343.

        Without addressing due diligence in their motion for summary judgment, the

Garcias concede that they "defaulted in the [2007] summary judgment proceeding."

Now, on appeal, they claim that they did, in fact, timely avail themselves of available

means to contest the 2007 Judgment when they filed their motion for rehearing. They

argue that by doing so they exercised due diligence, due diligence which allowed them to

proceed with a bill of review.8

        As bill of review petitioners, the Garcias were "required to exercise due diligence in

pursuing all adequate legal remedies against a former judgment." Wembley Inv. Co., 11

S.W.3d at 927.        As movants for summary judgment in this equitable bill of review

proceeding, the Garcias also had the burden to show, as a matter of law, that they

        8
            The Garcias also summarily respond that because the trial court applied an incorrect version of
section 45 of the probate code, the 2007 order granting summary judgment is void and not merely voidable;
therefore, due diligence was not necessary to attack a void judgment and did not preclude them from filing
a bill of review. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-11 (Tex. 1961) (explaining
when and how void judgments may be attacked). However, this responsive argument, without citation to
authority or to the record, is made for the first time on appeal, and we will not consider it. See Stiles v.
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) ("[A] summary judgment cannot be affirmed on
grounds not expressly set out in the motion.…"); see also TEX. R. APP. P. 38.1(i) (providing that an appellate
court will only consider contentions that are supported by clear and concise arguments with appropriate
citations to authorities and to the record).

                                                      8
diligently pursued all available legal remedies. See TEX. R. CIV. P. 166a(c); Wembley

Inv. Co., 11 S.W.3d at 927. In other words, the Garcias were required to prove, through

the summary judgment evidence, that they did not ignore any available legal remedies

but rather undertook to protect their legal rights. See Wembley Inv. Co., 11 S.W.3d at

927.

       Considering the facts of this case and the heavy burden placed on the Garcias

because the grounds on which a bill of review can be obtained are narrow, see Chapman,

118 S.W.3d at 751, we cannot conclude that the Garcias established, as a matter of law,

that they diligently pursued all available remedies against the 2007 Judgment. The

record reveals that on May 23, 2007, after the trial court denied the Garcia's request for

partition, the Garcias timely filed a motion for rehearing. This motion was overruled by

operation of law. Although the Garcias were aware of the 2007 Judgment, as shown by

the filing of the motion, the record does not show what inquiries, if any, the Garcias made

regarding the status of the motion for rehearing or the need for a hearing on the motion.

The record does not show what other actions, if any, the Garcias took to pursue the relief

requested in their pending motion.      Neither does the record establish whether the

Garcias filed an appeal in an effort to protect their legal rights after the 2007 Judgment

became final. Therefore, we conclude that a fact issue exists regarding due diligence.

The Garcias failed to meet their summary judgment burden to show that there is no

genuine issue regarding whether they used due diligence to protect their legal rights after

judgment and were entitled to a bill of review. See TEX. R. CIV. P. 166a(c); Provident Life

and Acc. Ins. Co., 128 S.W.3d at 216; Wembley Inv. Co., 11 S.W.3d at 927. We

conclude the trial court erred in granting summary judgment in favor of the Garcias

                                            9
because they failed to conclusively establish each required element of their bill of review.

We sustain the Cardonas' second issue.9

                             IV. DECLARATORY JUDGMENT ANALYSIS

        By their fifth issue, the Cardonas complain that the declaratory judgment action

may not be used to collaterally attack or interpret a prior final judgment; thus, summary

judgment was improper.           This appellate challenge is not reviewable because the

Cardonas did not respond to the Garcias' motion for summary judgment and their

grounds for appeal are limited to challenges of legal sufficiency. See McConnell, 858

S.W.2d at 343. However, the Garcias must still show that there is no genuine issue of

material fact and that they are entitled to judgment as a matter of law. See TEX. R. CIV. P.

166a(c); Rhone-Paulenc, Inc., 997 S.W.2d at 223. Therefore, we will determine, by this

issue, whether the Garcias are entitled to judgment as a matter of law on their request for

declaratory relief.

        In their motion for summary judgment on their declaratory judgment action, the

Garcias urged, in relevant part, that their motion should be granted "because there is no

issue of fact that the [2007] partition suit did not determine the interest rights of [the

Garcias]." The sole argument presented in support of this statement follows:

        The … original answer to [the Garcias'] original suit to partition real property
        did not ask for a determination of ownership of the property in question.…
        Therefore, if [the Garcias'] request for bill of review is denied, [the Garcias]
        are requesting that this Honorable Court grant them a summary judgment
        for a declaratory judgment that the [2007] order on the summary judgment
        did nothing to [a]ffect the ownership interest rights of [the Garcias] and they
        are free to claim an interest on the property of the Estate of Eva C. Cuevas.

        9
          Having determined that fact issues remain regarding due diligence, we need not address the
Cardonas' additional issues that challenge the remaining elements necessary to a bill of review. See TEX.
R. APP. P. 47.1.

                                                   10
The only exhibit attached to their summary judgment motion which the Garcias claim

supports this argument is a copy of the original answer filed by defendant Rios. Our

review of the record, however, reveals no evidence supporting this generally stated

proposition.

       Without more, we cannot conclude that the Garcias established, through their

summary judgment evidence, that there was no issue of fact that the 2007 partition suit

did not determine their interest rights.    Therefore, without determining whether the

declaratory action was properly brought in the alternative to the bill of review proceeding,

we conclude that the Garcias' motion for summary judgment requesting declaratory relief

does not stand on its merits and was granted in error. We, therefore, sustain the fifth

issue on this basis.

                                     V. CONCLUSION

       Accordingly, we reverse the trial court's judgment vacating and setting aside the

2007 Judgment that denied the Garcias' request to partition the family home and

declaring that the Garcias' rights to the property had not been affected by the 2007

Judgment and that they had not been divested of any rights to that property and remand

for further proceedings consistent with this opinion.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the
17th day of March, 2011.




                                            11
