                                MEMORANDUM OPINION
                            Nos. 04-08-00800-CV and 04-08-00801-CV

                                       William BAROWSKI,
                                             Appellant

                                                 v.

                           John GABRIEL, Sr. and Thomas C. Sandoval,
                                         Appellees

                     From the 150th Judicial District Court, Bexar County, Texas
                        Trial Court Nos. 2002-CI-14424 and 2007-CI-17959
                           Honorable Janet P. Littlejohn, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 4, 2010

REVERSED AND REMANDED

           Appellant William Barowski appeals from a summary judgment granting a bill of review

and a subsequent judgment of $350,000.00 in favor of Appellee Johnny Gabriel. On appeal,

Barowski asserts the trial court improperly granted Gabriel summary judgment, and the evidence

was factually insufficient to support the jury’s damage award.         Because Gabriel failed to

establish, as a matter of law, his entitlement to a bill of review, we reverse the trial court and

remand this matter for further action consistent with this opinion.
                                                                       04-08-00800-CV and 04-08-00801-CV


                                        FACTUAL BACKGROUND

        In 2002, Appellee John Gabriel, Sr. sued Appellant William Barowski for damages

resulting from a letter sent by Barowski to several hundred of Gabriel’s neighbors and contacts

in the League of United Latin American Citizens (LULAC). 1 The letter, entitled “Important

Information,” contained a number of disparaging and negative comments about Gabriel’s past.

        On May 30, 2006, the trial court set the underlying matter for trial on August 21, 2006.

On June 13, 2006, however, the trial court dismissed the case for want of prosecution. The

parties agreed this dismissal was in error and the case was reinstated by the trial court on July 25,

2006. Although the case was reinstated, the court nonetheless scheduled the case for another

dismissal docket setting on October 10, 2006.

        The case proceeded to trial as scheduled on August 21, 2006, and a jury returned a

verdict in favor of Gabriel. The jury awarded Gabriel $150,000.00 in actual damages and

$750,000.00 in exemplary damages. Despite the sizable verdict, Gabriel failed to immediately

reduce the jury’s verdict to judgment. No post-verdict motions were filed following the trial.

        On October 10, 2006, without any prior written notice to the parties, the trial court

dismissed the case for want of prosecution. A docket sheet notation states the trial court clerk

mailed notices of the dismissal to all counsel of record on October 11, 2006.                    Although

Barowski’s counsel received a copy of the October 10th dismissal order mailed by the trial court

clerk, Gabriel’s counsel, Art Augustine, alleges he did not. Unaware of the trial court’s October

10th dismissal order, Augustine moved to withdraw as Gabriel’s counsel in November 2006.

Augustine was permitted to withdraw as Gabriel’s counsel on November 27, 2006, and the trial

court entered a withdrawal order informing the parties as follows: “There are no deadlines;


1
  The original suit was filed by John Gabriel, Sr. and Thomas C. Sandoval against William Barowski. However,
only Gabriel is an appellee on appeal.

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however, the Order from the jury trial has not been entered and appellate timelines will begin to

run after the Judgment is entered with the Court.”

       In September 2007, Augustine allegedly discovered that the trial court had dismissed

Gabriel’s case for want of prosecution. Augustine responded by securing an ex parte order from

the Honorable Peter Sakai on September 18, 2007, setting aside the October 2006 dismissal

order. Barowski filed a motion to vacate and set aside Judge Sakai’s order on October 5, 2007,

which was subsequently granted by the trial court.

       Gabriel filed a bill of review on December 3, 2007, and later moved for summary

judgment on his bill of review. On July 29, 2008, the Honorable Janet Littlejohn granted

summary judgment on the bill of review, set aside the October 10, 2006 dismissal order, and

reinstated the case on the trial court’s docket. On the same day, Judge Littlejohn entered final

judgment in favor of Gabriel in the amount of $900,000.00 based on the jury’s August 2006

verdict.   After a hearing on Barowski’s motion for new trial, the trial court reduced the

exemplary damages awarded to Gabriel to $200,000.00. The trial court, therefore, entered an

amended judgment on September 19, 2008 awarding Gabriel $350,000.00 in total damages.

                                        BILL OF REVIEW

       We first address Barowski’s argument that summary judgment in favor of Gabriel was

improper because Gabriel failed to prove his entitlement to a bill of review as a matter of law. A

bill of review 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 (Tex. 1999).




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A. Standard of Review

        When a trial court grants summary judgment on a bill of review, the summary judgment

standard of review applies. See Brown v. Vann, No. 05-06-01424-CV, 2008 WL 484125, at *4

(Tex. App.—Dallas Feb. 25, 2008, no pet.) (mem. op.) (reviewing summary judgment on bill of

review); Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(reviewing no-evidence summary judgment on bill of review).            Summary judgments are

reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To

prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to

judgment as a matter of law and that there is no genuine issue of material fact. TEX. R. CIV. P.

166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); TX Far W., Ltd. v. Tex. Invs. Mgmt.,

Inc., 127 S.W.3d 295, 301 (Tex. App.—Austin 2004, no pet.).

        When deciding whether a disputed material fact issue precludes summary judgment,

evidence favorable to the non-movant is taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548-49 (Tex. 1985). Additionally, an appellate court indulges every reasonable

inference in favor of the non-movant and resolves any doubts in the non-movant’s favor. Id. As

the movant below, Gabriel thus had the burden of proving, as a matter of law, that he was

entitled to a bill of review.

B. Lack of Notice and Presumption

        The grounds upon which a bill of review can be obtained are narrow and restricted

because the procedure conflicts with the fundamental policy that judgments must become final at

some point. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “Generally, bill

of review relief is available only if a party has exercised due diligence in pursuing all adequate

legal remedies against a former judgment and, through no fault of its own, has been prevented



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from making a meritorious claim or defense by the fraud, accident, or wrongful act of the

opposing party.” Wembley Inv. Co., 11 S.W.3d at 927.

         1. Notice of the Hearing

         It is well-settled that a party must be provided with notice and an opportunity to be heard

before a court may dismiss a case for want of prosecution. Villarreal v. San Antonio Truck &

Equip., 994 S.W.2d 628, 630 (Tex. 1999).                    Gabriel argues the summary judgment record

establishes that he did not receive notice of either the October 2006 dismissal hearing or the trial

court’s October 10th dismissal order. Both parties agree that neither party received written

notice of the trial court’s October 2006 dismissal hearing.

         2. Notice of the Order of Dismissal

         Upon a trial court’s signing of an order of dismissal, Texas Rule of Civil Procedure

306a(3) requires the clerk of the court to give immediate notice to the parties or their attorneys

by first-class mail advising them of the dismissal. General Motors Acceptance Corp. v. City of

Houston, 857 S.W.2d 731, 733 (Tex. App.—Houston [14th Dist.] 1993, no writ); TEX. R. CIV. P.

306a. Importantly, “one seeking a bill of review need not prove [fraud, accident or wrongful act]

when the clerk fails to send the [required notice.]” Thomason v. Freberg, 588 S.W.2d 821, 824

(Tex. Civ. App.—Corpus Christi 1979, no writ).

         Barowski claims that even if Gabriel did not receive notice of the hearing on the motion

to dismiss, the evidence establishes that, shortly after the hearing, Gabriel received notice of the

October 10th dismissal order. Barowski concludes that because Gabriel received notice of the

October 10th dismissal order and did nothing, Gabriel is not entitled to a bill of review. 2 Thus,

the question in this appeal is whether Gabriel conclusively established that he did not receive


2
  Diligence in pursuing all adequate legal remedies before seeking a bill of review is a necessary element for a bill of
review. Tice v. City of Pasadena, 767 S.W.2d 700 (Tex. 1989);

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notice of the October 10th dismissal order in time to pursue other legal means to attack the

dismissal order. See Wembley, 11 S.W.3d at 927 (bill of review only available if party has

exercised due diligence in pursuing all adequate legal remedies).

       Barowski points to the testimony of the district clerk as well as evidence that Barowski’s

counsel received the dismissal order on October 12, 2006, as summary judgment evidence that

raised a fact issue. We note that there is no direct evidence of mailing. However, a district

clerk’s description of the customary mailing procedure in the district clerk’s office, whereby the

computer generates notice of the order of dismissal and the notices are mailed to the attorneys of

record, supports the presumption of mailing and receipt. Jimmy Swaggart Ministries v. City of

Arlington, 718 S.W.2d 83, 86 (Tex. App.—Fort Worth 1986, no writ). See Cooper v. Hall, 489

S.W.2d 409, 415 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.). The presumption of

mailing and receipt has the force of a rule of law only in the absence of evidence to the contrary.

Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).

       A presumption of mailing and receipt may be rebutted by an offer of proof of non-receipt.

In Wembley, the Texas Supreme Court explained that an affidavit by trial counsel averring that

they never received the order overcame any presumption of receipt. Wembley, 11 S.W.3d at 927

(“The presumption [] is not ‘evidence’ and it vanishes when opposing evidence is introduced that

the letter was not received.”); see also De La Garza v. Riverstone Apartments, No. 04-06-00732-

CV, 2007 WL 3270769, at * 2 (Tex. App.—San Antonio Nov. 07, 2007, no pet.); Delgado v.

Hernandez, 951 S.W.2d 97, 99 (Tex. App.—Corpus Christi 1997, no writ.). Hot Shot Messenger

Serv., Inc. v. State, 798 S.W.2d 413, 415 (Tex. App.—Austin 1990, writ denied) (“A letter

properly addressed, stamped, and mailed to the addressee is presumed to have been received by

the addressee in due course.”); Edwards v. State Bank of Satanta, Kan., 705 S.W.2d 839, 843


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(Tex. App.—Amarillo 1986, no writ) (holding that the affidavit of proof of the preparation and

mailing of the notice, and the testimonial denial of its receipt, creates a question of fact as to

whether the letter was mailed.); Sudduth v. Commonwealth County Mut. Ins. Co., 454 S.W.2d

196, 197–98 (Tex. 1970) (“[T]he non-arrival of such [notice] is some evidence that no such letter

was mailed; in short, it becomes essentially a question which testimony the jury will

believe. . . .”).

C. Analysis

         Having no direct evidence that the notice of the dismissal order was mailed, Barowski

relies upon the following evidence to raise a fact issue on receipt: (1) the clerk’s testimony of

policy and procedure, including the copy of the notice of dismissal that appears in the court’s

file, (2) Barowski’s counsel received a copy of the notice of the October 10th order of dismissal,

and (3) Gabriel’s notice of the October 10th dismissal order was not returned as unclaimed. The

presumption of mailing and receipt arose from this testimony. However, “[T]he mere denial of

receipt is sufficient to rebut the presumption.” Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (citing Gulf Ins. Co. v. Cherry, 704 S.W.2d 459, 461

(Tex. App.—Dallas 1986, writ ref’d n.r.e.)). Thus, when Augustine testified that he did not

receive the notice, the presumption was rebutted and a fact issue arose. See also Cliff, 724

S.W.2d at 780. Importantly, however, this presumption is overcome conclusively only when

“the evidence tending to support the contrary inference is conclusive, or so clear, positive, and

disinterested that it would be unreasonable not to give effect to it as conclusive.” Phan, 137

S.W.3d at 767 (citations omitted); see also Sellers v. Foster, 199 S.W.3d 385, 392 (Tex. App.—

Fort Worth 2006, no pet.) (“Whether a party received notice of a trial court’s intent to dismiss is

a question of fact for the trial court to determine.” (citations omitted)); Western Fire Ins. Co. v.


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Reyna, 495 S.W.2d 57, 59 (Tex. Civ. App.—Corpus Christi 1973, writ ref’d n.r.e.). Thus, in

the present case, Augustine’s denial of receipt is not conclusive. Because there was a question of

fact with regard to whether Gabriel received a copy of the notice of the trial court’s October 10th

dismissal order, the trial court erred in granting summary judgment on the bill of review.

Accordingly, we sustain this issue on appeal.

                                          CONCLUSION

       The facts giving rise to this case are unusual. For fourteen months after the jury verdict,

and eleven months after the dismissal, no action was taken in the case. Gabriel ultimately sought

a bill of review to overturn the dismissal and obtain a judgment on the jury verdict. Although the

evidence of the district court’s procedure created a presumption in favor of notice, the

presumption was rebutted by Augustine’s testimony that he never received the notice of the

dismissal order. However, because Augustine’s denial of receipt is not conclusive of the issue, a

fact issue remains to be resolved. We hold the trial court erred in granting summary judgment on

Gabriel’s bill of review. Accordingly, we reverse the judgment of the trial court and remand this

matter for further proceedings consistent with this opinion.



                                                 Rebecca Simmons, Justice




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