
                              NO. 07-12-0169-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                              OCTOBER 29, 2012
                        _____________________________



                                MARK SIMMONS,


                                   Appellant
                                     v.


                            THE SLALOM SHOP, LLC,


                                    Appellee
                        _____________________________

               FROM THE 393RD DISTRICT COURT OF DENTON COUNTY;

          NO. 2011-61321-393; HONORABLE DOUGLAS ROBISON, PRESIDING
                        _____________________________


                             Memorandum Opinion
                        _____________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Mark Simmons appeals from a  summary  judgment  denying  his  bill  of
review filed against The Slalom Shop, LLC.  Simmons petitioned  for  a  bill
of review to set  aside  a  final  summary  judgment  denying  him  recovery
against The Slalom Shop  in  Cause  No.  2005-60247-393  (First  Suit).   We
affirm.
      Slalom moved for summary judgment in  this  proceeding  alleging  that
Simmons failed to exhaust his legal remedies in the  First  Suit  and  thus,
was not entitled to a bill of review.  Furthermore, Simmons did not  exhaust
his legal remedies, according to Slalom, because he failed to file a  timely
motion for new trial or notice of appeal attacking the judgment rendered  in
the First Suit.
      The record discloses that the judgment in the First  Suit  was  signed
on October 4, 2007.  Simmons received notice of it by November 2, 2007,  and
filed an unverified "Motion to Reinstate" that  same  day.[1]   And,  though
the time period for perfecting an appeal had yet to lapse by  November  2nd,
Simmons undertook no effort to do that.  Needless to say, the cause was  not
"reinstated," and Simmons waited until September of 2011 to petition  for  a
bill of review.
      According to the Fort Worth Court of Appeals:
      A bill of review  is  an  equitable  proceeding  designed  to  prevent
      manifest injustice. French v. Brown, 424 S.W.2d 893, 895, 11 Tex. Sup.
      Ct. J. 132 (Tex. 1967). It is an equitable proceeding by a party to  a
      former action who seeks to set aside a  judgment  that  is  no  longer
      appealable or subject to challenge by a motion for new trial.  Wembley
      Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27, 43 Tex. Sup.  Ct.  J.  140
      (Tex. 1999).

Ferrice v. Legacy Ins. Agency,  Inc.,  No.  02-05-0363-CV,  2006  Tex.  App.
Lexis 5362, at *7 (Tex. App.-Fort Worth June 22, 2006,  pet.  denied)  (mem.
op.).[2]  It further stated, in Ferrice:
      to obtain relief via a bill of review a party must have exercised  due
      diligence in pursuing all adequate legal remedies . .  .  .  This  due
      diligence requirement is a distinct requirement  in  addition  to  the
      three bill of review elements; the complainant must allege  and  prove
      that he  exercised  due  diligence  in  pursuing  all  adequate  legal
      remedies to the challenged judgment or show good cause for failing  to
      exhaust those remedies . . . . If the complainant had  legal  remedies
      that were ignored, relief by bill of review is unavailable.

Id. at *8.  Then, the court noted that ". . . Ferrice failed to  invoke  his
right of appeal and permitted the judgment to become final" and  ruled  that
"[b]ecause . . . [he] failed to  exercise  due  diligence  in  pursuing  all
adequate legal remedies to the challenged judgment or  to  show  good  cause
for failing to exhaust those remedies, he is not entitled to bill of  review
relief."  Id. at *9-10.  Other courts, including the  Texas  Supreme  Court,
have ruled similarly.  See e.g., French v. Brown, 424 S.W.2d 893, 895  (Tex.
1967) (holding that the party was not entitled to  a  bill  of  review  with
respect to a summary judgment when he failed to  file  a  notice  of  appeal
although he did  file  a  motion  for  new  trial  which  was  overruled  by
operation of law); Blakely v. Mortg. Elec.  Registration  Sys.,  No.  10-09-
00341-CV, 2010 Tex. App. Lexis 4765, at *3-4 (Tex. App.-Waco June 23,  2010,
no pet.) (mem. op.) (holding that the failure to pursue a remedy  by  appeal
even if a document could be construed as a motion for  new  trial  precludes
entitlement to  a  bill  of  review).   Coupling  this  precedent  with  the
undisputed evidence that Simmons 1) had time  to  but  did  not  perfect  an
appeal from the judgment in the First Suit, and 2) did not  show  any  cause
explaining the omission, we too must agree, as a matter  of  law,  that  his
legal remedies had not been exhausted.  So, the trial court  acted  properly
in rendering the final summary judgment at bar.
      Accordingly, we affirm the summary judgment.

                                        Brian Quinn
                                        Chief Justice
-----------------------
      [1]We note that while a motion to reinstate may extend the time period
within which to perfect an appeal, an unverified one  does  not.   Butts  v.
Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986).


      [2]We cite precedent from the Second  Court  of  Appeals  because  the
appeal was transferred here from there by  the  Texas  Supreme  Court.   See
Tex. R. App. P. 41.3 (holding that precedent of the transferring court  must
be used).


