                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                 NO. 02-14-00382-CV


LEVONNE MARIE KUKUK                                               APPELLANT

                                               V.

TIMOTHY KUKUK                                                      APPELLEE


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          FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
                    TRIAL COURT NO. CIV-14-0200

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                           MEMORANDUM OPINION1

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      Appellant Levonne Marie Kukuk appeals the trial court’s order denying her

petition for bill of review. We will affirm.

      Appellant and Appellee Timothy Kukuk divorced sometime in the late

1990s. On January 23, 2009, in an effort to modify the terms of custody and

child support, Appellee filed a motion for enforcement, clarification, and


      1
       See Tex. R. App. P. 47.4.
modification of prior order for child support and for possession or access and to

reduce to judgment medical arrearages and enforce and reduce to judgment

dependency exemption allowances. In October 2009, Appellant was contacted

by Appellee’s counsel, requesting to set a date for a hearing on this motion. By

this time, Appellant’s counsel had withdrawn from the case and Appellant was

representing herself pro se.

      Appellant became aware of the January 14, 2010 hearing after speaking

with Appellee on the phone seven days before the hearing was set to occur.

However, at the hearing, Appellee’s counsel claimed to have sent a notice letter

containing information about the hearing by certified mail to Appellant on

November 15, 2009.       Appellant claims the October 2009 letter was the last

correspondence she received regarding the hearing until receiving the final

judgment, which was signed on March 10, 2010.

      Appellant claims that she was first made aware of the hearing when she

discussed it with Appellee on the phone. Further, she claims that in an effort to

delay proceedings, she sent a motion for continuance and a personal letter to the

trial court the day after her conversation with Appellee. Appellant did not hear

anything else regarding the hearing until she received a final judgment shortly

after March 10, 2010. She did not pursue a motion for new trial, appeal, or other

remedy until filing a petition for bill of review on March 7, 2014.

      In three issues, Appellant argues that the evidence is legally insufficient to

show that she received sufficient notice of the January 14, 2010 hearing and that

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the evidence is legally and factually insufficient to support the trial court’s denial

of her petition for bill of review.

       In our due process review of the evidence, we will determine whether the

trial court’s denial of Appellant’s bill of review constituted an abuse of discretion.

A trial court abuses its discretion if the court acts without reference to any guiding

rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39

(Tex. 2004). An appellate court cannot conclude that a trial court abused its

discretion merely because the appellate court would have ruled differently in the

same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d

549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

       A trial court also abuses its discretion by ruling without supporting

evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an

abuse of discretion does not occur when the trial court bases its decision on

conflicting evidence and some evidence of substantive and probative character

supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.

2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).

       A bill of review allows a party to challenge a judgment after the time for

filing a motion for new trial or an appeal has expired. Valdez v. Hollenbeck,

No. 13-0709, 2015 WL 3640887, at *1 (Tex. June 12, 2015). Although it is an

equitable proceeding, the fact that an injustice has occurred is not sufficient to

justify relief by bill of review. Wembley Inv., Co. v. Herrera, 11 S.W.3d 924, 927

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(Tex. 1999) (citing Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)).

Courts narrowly construe the grounds on which a plaintiff may obtain a bill of

review due to Texas’s fundamental public policy favoring the finality of

judgments.    Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812

(Tex. 2012) (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003); Alexander, 226 S.W.2d at 998. A person is not entitled to relief by bill of

review unless he has exhausted all other remedies available at the time the bill is

filed. See Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004); Wembley, 11 S.W.3d

at 927; Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980). If a party allows a

judgment to become final by neglecting to file a motion for new trial, appeal, or

appeal by writ of error, then the party is precluded from proceeding on a petition

for bill of review unless the complaint shows a good excuse for the party’s failure

to exhaust adequate legal remedies. Rundle v. Comm’n for Lawyer Discipline, 1

S.W.3d 209, 216 (Tex. App.—Amarillo 1999, no pet.); see Gold, 145 S.W.3d at

214.

       Here, the trial court did not abuse its discretion by denying Appellant’s bill

of review because Appellant failed to exhaust all available legal remedies

beforehand.2 Appellant became aware of the March 10, 2010 final judgment


       2
         Appellee argues alternatively that the bill of review was barred by
limitations because the judgment was rendered more than four years before
Appellant filed the petition. This argument is unpersuasive, however, because
the statute of limitations did not begin to run until the date the judgment was
signed, which was on March 10, 2010. See Tex. R. Civ. P. 306a.

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shortly after it was signed—at the latest, sometime in March 2010. Appellant

thus became aware of the judgment soon enough after it was signed to have filed

a motion for new trial or a direct appeal. See Tex. R. Civ. P. 329b(a) (“A motion

for new trial, if filed, shall be filed prior to or within thirty days after the judgment

or other order complained of is signed.”); Tex. R. App. P. 26.1(a), (b) (expressing

that an appellant can appeal up to thirty days after the final judgment is signed,

or ninety days if the party timely files a motion for new trial, a motion to modify

the judgment, a motion to reinstate, or a request for findings of fact and

conclusions of law).      However, Appellant failed to pursue any other legal

remedies until filing a bill of review almost four years later.

      When asked why she waited so long to act, Appellant explained that she

was unwilling to seek any legal remedy other than a bill of review and, for that

reason, she had difficulty obtaining counsel. However, an unwillingness to utilize

alternate legal remedies is no excuse for failing to exhaust all available means of

review. See Johnson v. W.J. Hancock Paint & Wallpaper Co., 336 S.W.2d 468,

469 (Tex. Civ. App.—Fort Worth 1960, writ ref’d n.r.e.) (holding that an

unexplained delay of fifty-four days demonstrated lack of due diligence when

appellant had the ability to pursue other legal remedies); see Ruland v. Ley, 144

S.W.2d 883, 884–85 (Tex. 1939) (holding that a four-month delay between

discovery of the judgment and the filing of the bill of review demonstrated lack of

due diligence when appellant failed to take alternate action due                       to

inconvenience).

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      Appellant directs us to Caldwell v. Barnes, arguing, “Even if the individual

becomes aware of the proceedings, he or she has no duty to participate in them

without proper service of process, and is also not at fault for failing to answer.”

975 S.W.2d 535, 537–38 (Tex. 1998). Our case is distinguishable from Caldwell,

however, because the appellant in Caldwell did not become aware of the

judgment until after other legal remedies had already expired. See id. (“Barnes

does not argue that Caldwell failed to use diligence in pursuing legal remedies

under Texas law because . . . no legal remedies remained available to him.”).

Appellant had other means of attacking the judgment available to her, but she

consciously chose to disregard them in order to file a bill of review.

      Because Appellant failed to use due diligence in challenging the March 10,

2010 judgment, the trial court’s decision was not arbitrary or unreasonable. See

Low, 221 S.W.3d at 614; Cire, 134 S.W.3d at 838–39; see also Gold, 145

S.W.3d at 214; Wembley, 11 S.W.3d at 927; Rizk, 603 S.W.2d at 775. For this

reason, the trial court did not abuse its discretion by denying her bill of review.

Accordingly, we overrule Appellant’s issues and affirm the trial court’s order

denying the petition for bill of review.

                                                    /s/ Bill Meier
                                                    BILL MEIER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DAUPHINOT, J., concurs without opinion.

DELIVERED: July 23, 2015

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