                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00285-CV

                                             Alice LABRA,
                                               Appellant

                                                    v.
                                                  Carlos
                                             Carlos LABRA,
                                                Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-10580
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 23, 2014

AFFIRMED

           This case stems from the trial court’s denial of Appellant Alice Labra’s Petition for Bill of

Review filed as a result of a default divorce decree where Appellee Carlos Labra was appointed

sole managing conservator of the parties’ minor children. Because Alice failed to meet her burden

on the bill of review, we affirm the trial court’s judgment.

                                        FACTUAL BACKGROUND

           Alice filed her petition for divorce from Carlos on December 17, 2007, in cause number

2007-CI-18666. On November 13, 2008, the trial court entered temporary orders wherein the
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parties were named joint managing conservators and Alice was granted the exclusive right to

designate the primary residence of the children.

        Alice contends that in early 2010, Carlos discontinued all communication with her and did

not exercise his visitation rights. On September 9, 2010, the trial court signed Alice’s order, filed

by her attorney, setting the matter for trial on November 22, 2010.

        Alice’s counsel subsequently filed a motion to withdraw indicating her inability “to

effectively communicate with Alice Labra in a manner consistent with good attorney-client

relations.” The motion to withdraw was granted by the trial court on November 22, 2010 and the

matter was reset. The order granting the motion to withdraw provided Alice’s last known address

as 10010 Sugarloaf Drive, San Antonio, Texas 78248, and further ordered that all notices be either

hand-delivered to Alice or mailed to the Sugarloaf address.

        In January of 2011, Alice moved from the Sugarloaf address. Alice contends that prior to

moving, she contacted the Bexar County District Clerk on three separate occasions to inquire

whether there were any pending hearings or court dates that she was required to attend. On January

11, 2011, Carlos filed a motion to set the divorce case for trial and the matter was set for January

28, 2011. Once again, the trial setting was dropped and the matter was not heard on January 28,

2011.

        Three months later, on April 13, 2011, Carlos filed an Original Counter-Petition for

Divorce and a new motion to set for trial. The case was set for trial on May 11, 2011. Notice was

sent to 10010 Sugarloaf Drive, San Antonio, Texas 78248. The notice was returned to sender by

the U.S. Post Office as “moved left no address . . . unable to forward . . . return to sender.” Alice

contends that she was never served with notice of the May 11, 2011 hearing and that Carlos knew

she was no longer residing at the Sugarloaf address. Additionally, Alice contends Carlos had her



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telephone number, e-mail address, and was able to communicate with her through Facebook and

MySpace.

       On May 11, 2011, Carlos obtained a Final Decree of Divorce. Alice asserts that she did

not know of the final decree until August of 2011, after all post-judgment filing deadlines had

expired. Between August of 2011 and December of 2011, Carlos had no contact with Alice and

no visitation with the children. Alice contends she relocated to California in December of 2011 to

be closer to her family and for financial support.

       On February 17, 2012, Carlos obtained a Final Decree of Divorce-Nunc Pro Tunc,

correcting language in the May 11, 2011 decree to reflect Alice was not present at the final hearing.

Alice asserts the first notice she received of any action taken on the Texas divorce case was an

order to appear before the California Superior Court on April 10, 2012, for enforcement of the

Texas divorce decree.

       On June 28, 2012, Alice filed an Original Petition for Bill of Review. After a December

6, 2012 hearing, the trial court concluded Alice failed to meet her burden on the bill of review and

denied the petition. Alice timely filed her notice of appeal.

                                         BILL OF REVIEW

       A bill of review is an equitable action brought by a party to a prior action who seeks to set

aside a judgment that is no longer appealable or subject to a motion for new trial. Mabon Ltd. v.

Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012) (per curiam); see also TEX. R. CIV. P.

329b(f) (“[O]n expiration of the time within which the trial court has plenary power, a judgment

cannot be set aside by the trial court except by bill of review for sufficient cause. . . .”). The

fundamental policy that finality must be accorded to judgments makes the grounds upon which a

bill of review will be granted narrow and restricted. See King Ranch, Inc. v. Chapman, 118 S.W.3d



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742, 751 (Tex. 2003); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th

Dist.] 2002, no pet).

A.     Standard of Review

       We review a trial court’s ruling on a bill of review for an abuse of discretion. See

Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.—Austin 2000, 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 v. Attorney Gen. of Tex., 166 S.W.3d 799, 810–11 (Tex.

App.—Corpus Christi 2005, no pet.). “A trial court does not abuse its discretion when it makes

its decision on conflicting evidence” and some evidence supports its judgment. Garcia–Udall v.

Udall, 141 S.W.3d 323, 333 (Tex. App.—Dallas 2004, no pet.) (citing Davis v. Huey, 571 S.W.2d

859, 862 (Tex. 1978)); accord Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009);

Burns v. Burns, 116 S.W.3d 916, 921 (Tex. App.—Dallas 2003, no pet.)). Where, as here, the trial

court did not file findings of fact and conclusions of law, the judgment will be sustained on any

legal theory supported by the evidence. Nguyen, 93 S.W.3d at 293–94.

B.     Argument of Parties

       Alice argues her petition for bill of review should have been granted because she was not

personally served with citation and, therefore, did not have notice of the final hearing. Alice

contends she need not prove the traditional bill of review elements and the court should have

granted her bill of review because the lack of notice was for a dispositive trial setting.

       Carlos contends that he took all necessary steps to provide the required notice to Alice. He

mailed the notice of setting and counter-petition to the last known address in compliance with Rule

21a. TEX. R. CIV. P. 21a. As such, Carlos contends there was no due process violation and Alice

failed to meet her burden on the bill of review.
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C.     Requirements to Set Aside a Judgment by Bill of Review

       In order to set aside a judgment by bill of review, a claimant is normally required to prove

the following three elements: “‘(1) a meritorious defense to the underlying cause of action, (2)

which the plaintiff[ ] [was] prevented from making by the fraud, accident or wrongful act of the

opposing party or official mistake, (3) unmixed with any fault or negligence on [its] own part.’”

Mabon Ltd., 369 S.W.3d at 812 (alterations in original) (quoting Caldwell v. Barnes (Caldwell II),

154 S.W.3d 93, 96 (Tex. 2004) (per curiam)). A bill of review petitioner who alleges she had no

notice of a dispositive setting is excused from proving the first two elements, but she “must still

prove the third and final element required in a bill of review proceeding that the judgment was

rendered unmixed with any fault or negligence of [her] own.” Caldwell II, 154 S.W.3d at 97.

       “A party’s failure to make reasonable inquiries regarding . . . pending litigation is [a] failure

to exercise diligence, and without the showing of such diligence, a bill of review will fail” based

on the inability of the party seeking relief to prove lack of negligence in allowing the judgment to

become final. In re A.L.H.C., 49 S.W.3d 911, 916 (Tex. App.—Dallas 2001, pet. denied). A

person must exercise due diligence, and if legal remedies were available but ignored, relief by

equitable bill of review is unavailable. See Caldwell v. Barnes (Caldwell I), 975 S.W.2d 535, 537

(Tex. 1998); see also Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.—Houston [1st Dist.] 1999,

no pet.) (reiterating that in a petition for bill of review claiming lack of service, petitioner must

establish “lack of proper service and his own diligence in setting the default judgment aside”).

D.     Alleged Fault or Negligence by Alice

       1.      Notice under Texas Rule of Civil Procedure 21a

       “When a party asserts a counterclaim or a cross-claim against another party who has

entered an appearance, the claim may be served in any manner prescribed for service of citation

or as provided in Rule 21a.” TEX. R. CIV. P. 124; Min, 991 S.W.2d at 500. Rule 21a “specifies
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that notices be sent to the party’s last known address, thus imposing a responsibility on the person

to be notified to keep the court and parties apprised of their correct and current address.” Withrow

v. Schou, 13 S.W.3d 37, 41 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

       In Mathews v. Harris Methodist, 834 S.W.2d 582, 583 (Tex. App.—Fort Worth 1992, writ

denied), the plaintiffs filed a bill of review seeking to have their case reinstated after it was

dismissed for want of prosecution. The court heard testimony that the plaintiffs’ lawyer did not

receive notice of the dismissal until after the case had been dismissed. Id. at 584. The evidence

also showed the attorney failed to notify the court of his address change after filing the original

lawsuit. Id. The Fort Worth court rejected the plaintiffs’ argument that the absence of notice prior

to the dismissal deprived the plaintiffs of due process, explaining “it is much more easily

understood how [a party who had no service of process] was deprived of his right to due process

as opposed to appellants who filed suit themselves, invoked the jurisdiction of the court and then

failed to give that court notice of where they could be reached.” Id. at 584–85. The court

concluded, “it cannot be said that appellants’ attorney was without fault because he knew that he

had a case pending yet failed to give the district court notice of his new address.” Id. at 585. We

see no procedural difference in the present case.

       2.      Testimony at Trial

       During the hearing on the bill of review, Alice testified that she believed she was not

required to notify either the clerk or Carlos of any change of address because their attorneys agreed

that she would not disclose her address in exchange for holding a protective order in abeyance.

She further testified that she notified Carlos she was moving and that they had contact through

MySpace in January of 2011. The next time she had contact with Carlos was in July of 2011.

Alice contends Carlos had her telephone number, her e-mail address, and was able to contact her

through MySpace and Facebook.
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       When Alice’s attorney withdrew, the attorney provided the court with Alice’s address on

Sugarloaf.   TEX. R. CIV. P. 10 (requiring, when another attorney is not to be substituted,

withdrawing attorney’s motion to state, among other things, the party’s last known address); see

also Harrison v. Harrison, 363 S.W.3d 859, 864 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

Alice conceded that prior to her attorney withdrawing from the case, Alice had instructed her to

move forward with the case. Alice also conceded that she knew the court had granted her

attorney’s motion to withdraw and the only address the clerk of the court had was the Sugarloaf

address and Alice did not provide her attorney or Carlos’s attorney with any change of address.

       David Mallonee, a specialist with Child Protective Services, was also called to testify at

the bill of review hearing. Mallonee testified that an investigator from his office was assigned to

locate Alice based on the District Attorney’s “call in referral based on their inability to locate”

Alice or her children to testify in a child injury case involving Alice’s boyfriend, Ernest Kyle.

Kyle was charged with assault of Alice and two of the children. Mallonee further explained it was

his understanding the case was dismissed based on Alice’s and her son’s failure to testify.

Mallonee also testified that between May of 2010 and April of 2012, Carlos did not know where

Alice and the children were and that Carlos had contacted him seeking help in locating Alice and

the children. According to Mallonee, Alice expressed frustration in her family’s desire to have the

Department place the children with Carlos over her.

       3.      Application

       The supreme court’s analysis in Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex. 2005) is

particularly instructive in this case. The court noted that a litigant has a “duty ‘to keep the court

and parties apprised of their correct and current address’” in connection with Rule 21a. The court

explained, assuming such duty exists, that “unless noncompliance was intentional rather than a

mistake, due process requires some lesser sanction than trial without notice or an opportunity to
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be heard.” Id. (citing Peralta, 485 U.S. at 85–86 and Cliff, 724 S.W.2d at 779); see also Harrison,

363 S.W.3d at 865 (stating that absent intentional noncompliance, “[l]oss of the opportunity to

contest a termination of parental rights is simply too steep a penalty for failing to keep a current

address on file with a court in perpetuity”). This is precisely the issue in this case. Alice testified

that she intentionally did not provide Carlos’s attorney or the district clerk with her contact

information. Although she argues Carlos could reach her through e-mail and social media

websites, Alice provides no authority that such information complies with Rule 21a’s requirement.

       The testimony supports not only that Alice failed to apprise any of the relevant parties of

her location, but that she took steps to preclude discovery of her address. Although the parties

agreed that Alice’s address could remain unknown while she was represented by counsel, we

cannot conclude that such agreement extended beyond Alice’s attorney’s representation of Alice

in the divorce proceedings. Cf. Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004)

(per curiam) (concluding failure to update addresses as required by statute is negligence barring

relief by bill of review); Mathews, 834 S.W.2d at 584–85 (same). This is further evidenced by

Alice’s attorney filing Alice’s last known address within her motion to withdraw. Based on

Carlos’s testimony, and that of Mallonnee, we conclude the trial court could have reasonably

concluded Alice was actively preventing Carlos, or his attorney, from making contact with her,

including providing notice of a court setting.

       Based on the record, we cannot say the trial court acted either arbitrarily or unreasonably

in determining that Alice failed to meet her burden to prevail on the bill of review. See Downer,

701 S.W.2d at 241–42; Interaction, Inc., 17 S.W.3d at 778.

                                            CONCLUSION

       Because the trial court could have reasonably determined that Alice’s failure to provide a

correct mailing address at which she could receive notices constituted negligence on her part, we
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cannot conclude the trial court abused its discretion in denying the bill of review. Accordingly,

we affirm the trial court’s judgment.


                                                Patricia O. Alvarez, Justice




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