Opinion issued March 17, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00271-CV
                           ———————————
                       BILLY RAY BARNES, Appellant
                                        V.
                      MARQUITA DEADRICK, Appellee


                   On Appeal from the 257th District Court
                            Harris County, Texas
                      Trial Court Case No. 2013-06126


                            DISSENTING OPINION


      I respectfully dissent. I strongly disagree with the majority’s disposition of

this case, which I believe has important consequences (1) for the application of

Texas bill-of-review law, (2) for the construction of Texas Rule of Civil Procedure
165a, which makes mandatory and jurisdictional the failure to file a motion to

reinstate a case dismissed for want of prosecution, and (3) Texas Rule of Civil

Procedure 1, which provides that “[t]he proper objective of rules of civil procedure

is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants

under established principles of substantive law . . . with as great expedition and

dispatch and at the least expense both to the litigants and to the state as may be

practicable.” TEX. R. CIV. P. 1. I think the majority allows an abuse of the bill-of-

review procedures and keeps alive frivolous and unsustainable litigation when the

plaintiff has readily available a legitimate remedy for any substantive wrong he

may have suffered. I would affirm the judgment of the trial court and its award of

sanctions.

      The majority reverses the trial court’s dismissal of a second bill of review

filed by appellant, Billy Ray Barnes, seeking a new trial of a 2009 order in a suit

affecting the parent-child relationship (“SAPCR”), filed in 2007, in which the trial

court awarded sole managing conservatorship of a child to appellee, Marquita

Deadrick, and supervised possessory conservatorship to Barnes. Barnes defaulted

in the SAPCR itself. He failed to appeal the 2009 SAPCR order. He failed to

appear for the hearing on his first bill of review proceeding, filed a year and a half

after the 2009 order. He failed to present a shred of proof to corroborate his claim

in his first bill of review that he was entitled to a new trial because he was not



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served with the SAPCR. He failed to present any proof to dispute the recitals in

the 2009 order that he was “duly cited and served.” He failed to move to reinstate

his first bill of review after the trial court dismissed it for want of prosecution. He

failed to appeal the trial court’s order dismissing his first bill of review. He waited

another two years before filing this second bill of review. He failed to make an

offer of proof that he was never served with the original SAPCR when the trial

court held a hearing on the second bill of review. And then he filed this appeal

from the trial court’s order dismissing the second bill of review on res judicata

grounds. The majority allows Barnes yet another bite at the apple. I would not. I

believe the majority’s ruling is contrary to established law, including law

established by this Court, and contrary to the spirit of Rule 1.

      It is hard to imagine a case in which a plaintiff has shown more conscious

indifference to his own claim of right, in violation of the cardinal principle

governing entitlement to a bill of review. Yet the majority’s holding and opinion

keeps alive Barnes’s complaint that he was never served with the SAPCR—a

complaint he has never sustained by any proof—and it allows him to use that bill

of review to seek a new trial on the merits of the six-year-old final order in an

eight-year-old child custody dispute.

      I can only view the majority’s reversal of the trial court’s denial of Barnes’s

second bill of review as contributing to delays and the waste of litigation and



                                           3
judicial resources in violation of Rule 1. Barnes’s claims and issues are identical

to those he filed in his previous bill of review proceeding, which he failed to

prosecute, failed to move to reinstate following dismissal, and failed to appeal. I

would hold that Barnes’s second bill of review is barred under established law—

including the law of this Court—by his own conscious indifference to prosecuting

his first bill-of-review action and by his failure to file a motion to reinstate that first

bill of review. I specifically note that Barnes is entitled to bring his own SAPCR

to seek modification of the orders he has lived under for the last six years if he has

any grounds for showing a change in circumstances that render the order unjust.

                                      Background

       This is the second bill of review filed by Barnes concerning a SAPCR filed

by Deadrick with respect to M.B. in 2007. Barnes failed to appear in the SAPCR

to seek conservatorship of his child. On April 9, 2009, the trial court signed an

order in the SAPCR that included a default judgment against Barnes. The order

recited that Deadrick had appeared at trial with her attorney on March 23, 2009.

The order also stated that, although he had been “duly and properly cited, [Barnes]

did not appear [at trial] and wholly made default.” The trial court appointed

Deadrick as M.B.’s sole managing conservator and appointed Barnes as possessory

conservator, granted him supervised visitation with M.B., and required him to pay

$514.55 in monthly child support to Deadrick.



                                            4
      Barnes did not appeal the 2009 final order in the SAPCR, which granted sole

managing conservatorship to Deadrick and supervised possessory conservatorship

to him. Nor did he timely object in any way to the recitals in the trial court’s final

order that he had been duly and properly cited to appear but had made default.

However, on or around September 10, 2010—almost a year and half later—he

filed a verified bill of review in the trial court contending that he had never been

properly served with the SAPCR. He did not attach any evidence to disprove the

recitals in the 2009 SAPCR order that he had, in fact, been “duly and properly

cited” with service.

      On September 10, 2010, the associate judge held a hearing on Barnes’s bill

of review petition. Barnes again failed to appear—even at the hearing on his own

bill of review—and thus presented no evidence to corroborate his claim that he had

not been served in the SAPCR proceeding and was therefore entitled to a new trial.

Although the associate judge made a docket sheet entry noting that the bill of

review was denied, the associate judge did not sign a written order memorializing

that entry. Instead, on February 15, 2011, the presiding judge of the trial court

dismissed the bill of review for want of prosecution, noting that trial had been duly

noticed to the parties for the previous day but neither had appeared.




                                          5
      Barnes did not timely file a motion to reinstate his bill of review pursuant to

Texas Rule of Civil Procedure 165a, and he did not appeal the trial court’s order

dismissing his suit.

      Barnes initiated his second bill-of-review proceeding—the proceeding

underlying this appeal—on January 31, 2013, again seeking to set aside the 2009

order in the 2007 SAPCR. In his sworn petition, Barnes averred that he had been

“prevented by [Deadrick] from asserting his parental rights to the child” because

he “was served via substitute service at an incorrect address and thus never

received notice of the pending action.” He did not attach any extrinsic proof—not

even his own affidavit—to corroborate his claim that he had not been served with

the SAPCR petition in 2007 or to contradict the recitals in the 2009 final order that

he had been duly cited but had made default. Nor did he attach any proof that he

had not received notice of the hearing on his first bill of review, notice of the trial,

or notice of that suit’s dismissal for want of prosecution.

      Deadrick answered the petition and asserted the affirmative defense of res

judicata. Deadrick claimed as follows: (1) there was a “prior final judgment by the

[trial] court” in Barnes’s “previously filed bill of review”; (2) both Barnes and

Deadrick were parties to the earlier filed bill-of-review proceeding; and (3) the

second-filed petition for bill of review “is based on the claims that were raised or

could have been raised in the first action.”



                                           6
        The trial court conducted a hearing, heard and overruled Deadrick’s special

exceptions to Barnes’s bill-of-review petition, heard the parties’ arguments

regarding Deadrick’s affirmative defense of res judicata, and stated that the bill-of-

review claim had been “ruled on more than three years ago. It was denied at that

time, and res judicata applies.” Barnes did not argue that his case should not be

dismissed because it was not res judicata. He made no attempt to make an offer of

proof that he had never been served in the initial SAPCR proceeding. The trial

court signed an order denying the second bill-of-review petition on January 9,

2014.

        Barnes first raised the argument that he makes on appeal—that his second

bill-of-review petition was not barred by res judicata—in a motion for new trial, to

which he attached a copy of the February 15, 2011 order that dismissed the first

bill-of-review action for want of prosecution.

        Deadrick responded that the trial court had appropriately denied Barnes’s

second bill-of-review petition on res judicata grounds. She offered the docket

sheet from the first bill-of-review proceeding, pointing out that, according to the

associate judge’s notation, the associate judge had denied Barnes’s first bill-of-

review petition on September 10, 2010.           She further asserted that it was

procedurally improper for Barnes to challenge the trial court’s denial of the second

bill-of-review petition with a motion for new trial. She claimed that Barnes’s only



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available post-judgment remedy was to file an appeal.           Deadrick also sought

sanctions against Barnes, asserting that his motion for new trial had been filed for

“an improper purpose” and “to harass or to cause unnecessary delay or needless

increase in cost of litigation.” Following a hearing, the trial court denied Barnes’s

motion for new trial, found that “Barnes’s claim is barred by res judicata” and that

his motion for new trial was “procedurally improper,” found that Barnes had filed

the motion for new trial for “an improper purpose,” and sanctioned him $2,700,

representing Deadrick’s “reasonable attorney’s fees.”

      On appeal, the majority reverses the trial court’s orders and remands the case

to the trial court to try Barnes’s claim—made in both bills of review—that he was

not served eight years ago in the 2007 SAPCR proceeding, a matter on which he

has never presented any evidence despite repeated opportunities, all of which he

has rejected.

      I would hold that the trial court did not err in dismissing the case for want of

prosecution in 2011 after Barnes missed both the hearing on his own bill-of-review

petition and the scheduled and noticed trial on his petition and made no proof

whatsoever that he had never been served with citation in the 2007 SAPCR,

displaying conscious indifference to the proceedings. I would further hold that,

because Barnes failed to avail himself of either a motion to reinstate his first bill of

review within the time frame provided by Texas Rule of Civil Procedure 165a or a



                                           8
timely appeal of the trial court’s dismissal of that proceeding, his first bill of

review became final and bars this subsequent attempt to resurrect his claim of lack

of service in 2007.

      I note that Family Code section 156.002 specifically authorizes a party

affected by an order in a SAPCR to file a suit for modification in the court with

continuing exclusive jurisdiction.     TEX. FAM. CODE ANN. § 156.002 (Vernon

2014). And Family Code section 156.101 expressly permits the trial court to

“modify an order that provides for the appointment of a conservator of a child, that

provides the terms and conditions of conservatorship, or that provides for the

possession of or access to a child if modification would be in the best interest of

the child and . . . the circumstances of the child, a conservator, or other party

affected by the order have materially and substantially changed since . . . the date

of the rendition of the order.” Id. § 156.101(a)(1)(A) (Vernon 2014). Barnes has

never availed himself of this opportunity. Instead, he seeks to retry the 2007 case

leading to the trial court’s 2009 order awarding managing conservatorship of the

child to Deadrick six years ago and awarding him possessory conservatorship

despite his repeated acts of conscious indifference to his rights.

      I would affirm the judgment of the trial court dismissing Barnes’s second

bill of review. I also agree with the finding of that court that this entire proceeding




                                           9
is improper, and I would therefore likewise affirm the award of sanctions against

Barnes.

                                    Bill of Review

        A.    Standard of Review

        In reviewing a trial court’s ruling on a bill of review, we indulge every

presumption in favor of the trial court’s ruling, and we will not disturb it unless an

abuse of discretion is affirmatively shown. Nguyen v. Intertex, Inc., 93 S.W.3d

288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We may reverse the

trial court for abusing its discretion in denying the bill of review only if it has acted

in an unreasonable or arbitrary manner, or without reference to any guiding rules

and principles. Id. In my view, this standard has not been followed by the

majority in this case.

        B.    Dismissal of First Bill of Review for Want of Prosecution and
              Barnes’s Failure to Appeal or Move to Reinstate

        The majority holds that the trial court’s dismissal of Barnes’s first bill of

review proceeding for want of prosecution does not bar this second bill of review

regarding the exact same subject matter as the first—Barnes’s claim that he was

never served with the 2007 SAPCR, in which he defaulted. I would hold that it

does.

        “[A] party who fails to timely avail itself of available legal remedies is not

entitled to relief by bill of review.” Davis v. Smith, 227 S.W.3d 299, 304 (Tex.

                                           10
App.—Houston [1st Dist.] 2007, no pet.) (citing Wembley Inv. Co. v. Herrera, 11

S.W.3d 924, 927 (Tex. 1999) (per curiam)); see also Wembley Inv. Co., 11 S.W.3d

at 927 (“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 from making a meritorious

claim or defense by the fraud, accident, or wrongful act of the opposing party.”).

Thus, a bill of review is unavailable when a petitioner does not file a motion to

reinstate a proceeding dismissed for want of prosecution. See Davis, 227 S.W.3d

at 304; see also Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980) (“[O]ne with an

available appeal who fails to pursue that remedy is not entitled to seek relief by

way of a bill of review.”). “[T]he Supreme Court of Texas has explained that ‘[i]f

a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to

imagine any case in which failure to pursue one of them would not be

negligence.’” Davis, 227 S.W.3d at 304 (quoting Gold v. Gold, 145 S.W.3d 212,

214 (Tex. 2004) (per curiam)); see also Rizk, 603 S.W.2d at 776 (stating that “a bill

of review may not be used when one neglects to urge a motion for new trial or

appeal when he has time to do so”).

      Two sources grant a trial court the authority to dismiss a suit for want of

prosecution, as the trial court here dismissed Barnes’s first bill of review: (1) Texas

Rule of Civil Procedure 165a and (2) the trial court’s inherent authority. See TEX.



                                           11
R. CIV. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630

(Tex. 1999). The trial court may dismiss a case pursuant to Rule 165a based on the

“failure of any party seeking affirmative relief to appear for any hearing or trial of

which the party had notice” or when the case is not disposed of within the time

standards promulgated by the Texas Supreme Court. See Villarreal, 994 S.W.2d at

630 (citing TEX. R. CIV. P. 165a(1), (2)). The common law also grants the trial

court “the inherent power to dismiss independently of the rules of procedure when

a plaintiff fails to prosecute his or her case with due diligence.” Id.; Dueitt v.

Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco

2005, pet. denied).

      Rule 165a provides for dismissal for want of prosecution “on failure of any

party seeking affirmative relief to appear for any hearing or trial of which the party

had notice.” TEX. R. CIV. P. 165a(1) It then provides that the parties must be

notified of the dismissal hearing and that “[a]t the dismissal hearing, the court shall

dismiss for want of prosecution unless there is good cause for the case to be

maintained on the docket. . . . The case may be continued thereafter only for valid

and compelling reasons specifically determined by court order.” Id. (emphasis

added). Notably, the trial court is not required to hold a dismissal hearing before

dismissing an action for want of prosecution after the plaintiff has failed to appear

for a hearing and the order setting the hearing clearly warned the parties that they



                                          12
could expect dismissal for want of prosecution if the plaintiff failed to attend. See

Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 851–52 (Tex. 2004).

      Rule 165a further provides that, following dismissal, a party may move to

reinstate the case by verified motion setting forth the grounds for reinstatement.

TEX. R. CIV. P. 165a(3). The motion must be filed with the clerk within thirty days

after the order of dismissal is signed or within the period prescribed by Rule of

Civil Procedure 306a for periods running from the date of judgment or notice of

judgment. See id.; TEX. R. CIV. P. 306a. If a motion to reinstate an action

dismissed for want of prosecution is timely filed, the trial court has plenary power

to reinstate the case until thirty days after all such timely filed motions are

overruled, either by written order or by operation of law. Davis, 227 S.W.3d at

303. If a motion to reinstate is not decided by signed, written order within seventy-

five days after the judgment is signed, or within a time allowed by Rule 306a, the

motion is deemed overruled by operation of law and the judgment of dismissal

becomes final. Id.; see TEX. R. CIV. P. 165a(3). The time limits governing a

motion to reinstate a cause of action dismissed for want of prosecution are

mandatory and jurisdictional. Davis, 227 S.W.3d at 303.

      When the trial court dismisses a case for want of prosecution and the

plaintiff files a motion to reinstate, the court “shall reinstate the case upon finding

after a hearing that the failure of the party or his attorney was not intentional or the



                                          13
result of conscious indifference but was due to an accident or mistake or that the

failure has been otherwise reasonably explained.” TEX. R. CIV. P. 165a(3); Smith

v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam).

A failure of the party or his attorney is not intentional or due to conscious

indifference “within the meaning of the rule merely because it is deliberate; it must

also be without adequate justification.” Smith, 913 S.W.2d at 468. “Proof of such

justification—accident, mistake or other reasonable explanation—negates the

intent or conscious indifference for which reinstatement can be denied.”          Id.

Conscious indifference “means more than mere negligence.”           Id.   To obtain

reinstatement, the plaintiff bears the burden of demonstrating that he has diligently

prosecuted his case. See Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 130

(Tex. App.—Houston [14th Dist.] 1999, no pet.); Tex. Mut. Ins. Co. v. Olivas, 323

S.W.3d 266, 274 (Tex. App.—El Paso 2010, no pet.) (“The complaining party has

the burden to bring forth a record to support its contention.”).

      Rule 165a(3)’s reinstatement provision applies to all dismissals for want of

prosecution, including those made under the trial court’s inherent power. See

Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (citing Cappetta v. Hermes, 222 S.W.3d

160, 166 (Tex. App.—San Antonio 2006, no pet.), and Brown v. Howeth Invs.,

Inc., 820 S.W.2d 900, 903 (Tex. App.—Houston [1st Dist.] 1991, writ denied));



                                          14
see also TEX. R. CIV. P. 165a(4) (“The same reinstatement procedures and

timetable are applicable to all dismissals for want of prosecution including cases

which are dismissed pursuant to the court’s inherent power . . . .”). By its plain

language, Rule 165a provides the exclusive mechanism for reinstating a case

following dismissal for want of prosecution. See TEX. R. CIV. P. 165a(3).

      We review a trial court’s ruling dismissing a case for want of prosecution

and a court’s ruling on a motion to reinstate for an abuse of discretion. See Smith,

913 S.W.2d at 468; Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401

(Tex. App.—Dallas 2001, pet. denied) (per curiam). In reviewing a dismissal for

want of prosecution, the court of appeals is required to affirm the dismissal if it

finds that either the trial court’s inherent authority or Rule 165a would have

authorized the trial court to dismiss the action.      See Polk v. Sw. Crossing

Homeowners Ass’n, 165 S.W.3d 89, 96 (Tex. App.—Houston [14th Dist.] 2005,

pet. denied).   A trial court does not, however, abuse its discretion when “its

decision is based on conflicting evidence or when some evidence of a substantive

and probative character exists to support the trial court’s decision.” Olivas, 323

S.W.3d at 275 (citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)).

      Here, Barnes failed to appear for the hearing on his own first bill of review,

justifying dismissal of that bill of review under the plain language of Rule 165a.

See TEX. R. CIV. P. 165a(1). Moreover, the record affirmatively demonstrates that



                                        15
Deadrick did appear and that Barnes had notice but did not. The trial court’s order

of dismissal likewise affirmatively states that “[a]ll counsel of record in the above

mentioned case were notified by this court that this matter was set for final trial on

the merits on 2-14-11” and that “[n]either counsel appeared.” Dismissal of that

first bill of review for failure to appear at both the hearing and the trial on the

merits of the bill of review was therefore justified under Rule 165a. See id.;

Alexander, 134 S.W.3d at 851–52.

      Barnes filed no motion to reinstate his first bill of review. Barnes likewise

failed to file an appeal of the trial court’s order dismissing his first bill of review,

just as he failed to file a motion to reinstate that proceeding. Since Barnes did not

move to reinstate his first bill of review or file an appeal of the dismissal order, the

order became a final and unappealable judgment thirty days after the trial court

entered the order. See Davis, 227 S.W.3d at 303 (stating that time limits governing

motion to reinstate cause of action dismissed for want of prosecution are

mandatory and jurisdictional); see also In re Valliance Bank, 422 S.W.3d 729, 730

(Tex. App.—Fort Worth, 2013, orig. proceeding) (stating that Rule 165a requires

timely-filed, sworn verification by movant or his attorney as jurisdictional

prerequisite to extend plenary power of trial court beyond thirty days after order of

dismissal is signed).




                                          16
      Because Barnes failed to file a motion to reinstate and failed to appeal the

dismissal of his first bill of review, he failed to timely avail himself of available

legal remedies, and the judgment on his first bill of review became final and

unappealable. See Rizk, 603 S.W.2d at 775; Davis, 227 S.W.3d at 304. Notably,

however, if he had filed an appeal, the reviewing court would have been obliged

by law to conclude that the trial court did not abuse its discretion in dismissing his

bill of review for want of prosecution and was not required to reinstate the claims

that Barnes had failed to litigate despite repeated opportunities. See Polk, 165

S.W.3d at 96 (in reviewing dismissal for want of prosecution, court of appeals is

required to affirm dismissal if it finds that either trial court’s inherent authority or

Rule 165a would have authorized trial court to dismiss action).

      The majority’s holding in this second bill of review, however, permits

Barnes to bring exactly the same bill of review on exactly the same grounds as

before—namely, that he was not served in 2007—despite established law holding

that he has no such right. Like the supreme court in Gold, and this Court in Davis,

I find it hard to imagine, under these circumstances, that Barnes was not negligent

in failing to pursue his remedies for the alleged failure of Deadrick to serve him

with notice of her petition in the SAPCR proceeding. See Gold, 145 S.W.3d at

214; Davis, 227 S.W.3d at 304. Indeed, I would hold that the record affirmatively

demonstrates his conscious indifference to all of the proceedings from the filing of



                                          17
the SAPCR in 2007 to the filing of his second bill of review and its dismissal.

Therefore, in my view, it cannot be said that the trial court abused its discretion in

dismissing the first bill of review.

                                       Conclusion

      Because of Barnes’s conscious indifference to his rights and his failure to

move to reinstate his first—identical—bill of review under Rule 165a within the

mandatory time limits, which resulted in a final and unappealable judgment against

him on his first bill of review, I would hold that the trial court did not err in

dismissing Barnes’s second bill of review. See Wembley Inv. Co., 11 S.W.3d at

927; Davis, 227 S.W.3d at 304. Accordingly, I would affirm the judgment of the

trial court. I also agree with the trial court’s award of sanctions and would affirm

it.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Higley, and Brown.

Justice Keyes, dissenting.




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