                                  NO. 07-06-0379-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                 AUGUST 4, 2008
                         ______________________________

                               DAWN GAYKEN, D.D.S.,

                                                               Appellant

                                            v.

           ANN D. EWTON, Individually and as Independent Executor of the
             Estate of MERLE CLEMENT EWTON, D.D.S., Deceased,

                                                     Appellee
                       _________________________________

         FROM THE 248th DISTRICT COURT OF MONTGOMERY COUNTY;

            NO. 01-02-00972-CV; HON. JOHN M. DELANEY, PRESIDING
                       _______________________________

                                Memorandum Opinion
                          ______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      This appeal is the second in this matter. The cause involves a bill of review filed by

Ann D. Ewton, individually and as independent executor of the estate of Merle Clement

Ewton, D.D.S., to negate an order dismissing the underlying suit for want of prosecution.

Dawn Gayken had sued Ewton for damages arising from the sale of a dental practice.

Ewton counterclaimed to recover upon a promissory note and the purchase agreement

memorializing the sale. The trial court originally dismissed the bill of review. That
dismissal was appealed, and the reviewing court reversed the order and remanded the

cause after finding that Ewton “established a prima facie claim in support of her bill . . . .”

Ewton v. Gayken, 130 S.W.3d 382, 385 (Tex. App.–Beaumont 2004, pet. denied). Upon

remand, the trial court granted the bill, reinstated the cause, addressed the merits of the

dispute, and awarded judgment to Ewton. Through this appeal, Gayken again questions

whether her opponent was entitled to prosecute the bill of review. We affirm the decision

of the trial court.

       Issue 1 - Statute of Limitations

       In her first issue, Gayken argues that Ewton was not entitled to prosecute a bill since

she had an adequate remedy at law, that remedy being the initiation of a second suit.

Such a suit would not have been barred by the six-year statute of limitations allegedly

applicable to promissory notes. Whether that same statute applied to those aspects of

Ewton’s initial suit founded on the purchase agreement as opposed to the promissory note

went unaddressed in her appellant’s brief. We overrule the issue.

       The standard of review is one of abused discretion. Interaction, Inc. v. State, 17

S.W.3d 775, 778 (Tex. App.–Austin 2000, pet. denied); Nguyen v. Intertex, Inc., 93 S.W.3d

288, 293 (Tex. App.–Houston [14th Dist.] 2002, no pet.). Next, we note that the element

encompassing the absence of legal remedies pertains to the exhaustion of legal remedies

against the former judgment or judgment being attacked. Wembley Inv. Co. v. Herrera, 11

S.W.3d 924, 927 (Tex. 1999); see also Martin v. Martin, 840 S.W.2d 586, 592 (Tex. App.–

Tyler 1992, writ denied) (stating that it must be shown there is an absence of adequate

legal remedies against the judgment under attack). Indeed, it appears that the concept of



                                              2
adequate legal remedies generally encompasses the availability of a writ of error, a direct

appeal, or a motion for new trial. Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex. App.–

Houston [1st Dist.] 1992, writ denied). Or, as the Supreme Court said in Gold v. Gold, 145

S.W.3d 212 (Tex. 2004), “we have only applied this rule [involving the scope of legal

remedies available] to motions that could have been filed in the trial court’s first

proceeding.” Gold v. Gold, 145 S.W.3d at 214. Filing an independent second suit does

not fall within the ambit of a motion filed in the first proceeding. Consequently, we reject

Gayken’s argument that because Ewton could have filed another suit, she had adequate

legal remedies.1

        Issue 2 - Elements of Bill of Review

        Second, Gayken asserts that Ewton failed to address the elements required to

obtain a bill of review. In doing so, she refers to Ewton’s purported failure to plead the

elements of a bill in her petition. However, as already noted, the court of appeals that

heard the first appeal found that Ewton had successfully pled and proven a prima facie

case for a bill of review. See Ewton v. Gayken, 130 S.W.3d at 385. That decision was and

is final, and we will not reconsider contentions that impugn it. Issue two is overruled.

        Accordingly, the judgment of the trial court is affirmed.



                                                            Brian Quinn
                                                            Chief Justice


        1
         Furtherm ore, the record discloses that Ewton was also suing for claim s arising under the purchase
agreem ent, not just the prom issory note. Since the statute of lim itations applicable to suits on a contract is
four years, Via Net v. TIG Ins. Co., 211 S.W .3d 310, 315 (Tex. 2006), as opposed to the six applicable to suits
on negotiable instrum ents, Ewton had to vitiate the dism issal if she was to be able to successfully prosecute
her contract claim s.

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