Wolfe v. Grant Prideco, Inc.

OPINION

COHEN, Justice.

In May 1995, appellant, Dwight Wolfe, sued appellee, Grant Prideco, Inc. (Grant), in Jefferson County, Texas for negligence. The case was transferred to Harris County in August 1995. On October 7, 1998, the trial judge mailed to counsel a notice of intent to dismiss the case, unless a joint status report was filed. 1 No report was filed, and on November 16, 1998, the trial judge dismissed that case for want of prosecution. Wolfe then filed this suit, challenging the dismissal by bill of review. The trial judge granted a Tex.R. Civ. P. 166a(c) summary judgment for Grant in the bill of review proceeding. Wolfe appeals, contending that the trial judge erred by granting summary judgment. We reverse and remand.

*773 Facts

After filing the underlying suit, Wolfe’s attorney, Steve Gordon, took a medical leave from his law practice, and Ralph D. Huston agreed to continue prosecuting Wolfe’s case. Huston notified Grant’s attorney, Eric. G. Brown, of Huston’s intention to substitute as counsel. However, based on communications with Brown, Huston never moved to substitute as counsel because Huston thought the case had settled. Thus, the trial court continued to direct its communications to Gordon, who remained the attorney of record. 2

Gordon never received the notice of intent to dismiss, and he did not receive the dismissal notice until February 22, 1999, 108 days after the judgment was signed. The clerk had mailed these notices to Gordon’s address in the court’s computer register of attorneys, rather than to Gordon’s address listed on all the pleadings. Gordon finally received the dismissal notice at another address that he had activated in 1999.

Analysis

A bill of review is an independent, separate suit brought by a party to a former action who is seeking to set aside a final judgment that is no longer appealable or subject to a new trial motion. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). A bill of review is an equitable remedy and is available only when a “party has demonstrated due diligence, and can show, through no fault of its own, that no other legal remedy was available.” See Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 57 (Tex.App.—Houston [1st Dist.] 2000, pet. denied). Furthermore, to succeed by a bill of review, a petitioner must prove that (1) he had a meritorious claim or defense; (2) he was prevented from asserting the claim or defense by the fraud, accident, or wrongful act of his opponent or by official mistake; and (3) there was no fault or negligence of his own that prevented the assertion of the claim or defense. See id. Grant moved for summary judgment on all bill of review elements. The trial judge rendered summary judgment without specifying grounds. We follow the usual standard of review for summary judgments. See Tex.R. Civ. P. 166(a)(c); Randall’s Food Mkts., Inc., v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).

In Wolfe’s first issue, he contends the trial judge in the underlying suit erred by not providing a notice and a hearing before dismissing the case, ie., the trial judge committed an official mistake by sending notices to an address other than that on the papers Gordon filed. Grant contends no official mistake occurred because the clerk sent the notice of intent to dismiss to Gordon’s address in the court’s register of attorneys, ie., to the address listed “on the docket or in the papers on file.” See Tex.R. Civ. P. 165a(l). 3

We have held that “no statutory or case authority ... authorizes a district clerk to use any address other than the address shown in the papers on file.” Osterloh v. Ohio Decorative Prods., Inc., 881 S.W.2d 580, 582 (Tex.App.—Houston [1st Dist.] 1994, no writ) (emphasis in original). Thus, the clerk committed an official mistake by using Gordon’s address in the *774 register of attorneys instead of Gordon’s address in the papers on file.

We sustain Wolfe’s first issue.

In his second issue, Wolfe contends the trial judge erred if he granted summary judgment because he concluded that Wolfe did not exhaust his legal remedies by filing a restricted appeal. 4

Wolfe contends a restricted appeal would have failed because there was no error apparent on the record’s face. Specifically, the record did not show that Gordon never received the notice of intent to dismiss, and, without that evidence being apparent on the record’s face, he had no legal remedy by way of a restricted appeal. We agree.

Nothing in the record of the underlying case shows that the address in the court’s central register was incorrect on the date the notices were sent or that Gordon did not, in fact, receive it. Thus, we hold error was not apparent on the record’s face. See Robert S. Wilson Inv. No. 16 Ltd. v. Blumer, 837 S.W.2d 860, 862 (Tex.App.—Houston [1st Dist.] 1992, no writ) (although clerk sent notice to address not shown in case file or in central register, error was not apparent on the record’s face because nothing in the record established'that the address on the notice was incorrect); Transoceanic Shipping Co., Inc. v. Gen. Universal Sys., Inc., 961 S.W.2d 418, 419-20 (Tex.App.—Houston [1st Dist.] 1997, no writ) (holding error was apparent on the record’s face because the record affirmatively reflected that defense counsel did not receive the trial-setting notice). But see General Motors Acceptance Corp. v. City of Houston, 857 S.W.2d 731, 733-34 (Tex.App.—Houston [14th Dist.] 1993, no writ) (holding error was apparent on the record’s face because the notice of intent to dismiss and the dismissal notice contained improper and incomplete addresses). Accordingly, the trial judge erred if he concluded that Wolfe failed to exhaust his legal remedies.

We sustain Wolfe’s second issue.

In his third issue, Wolfe contends the judge erred if he granted summary judgment because he concluded the dismissal resulted from Wolfe’s own fault or negligence. Wolfe contends that Gordon (1) properly referred the case to Huston; (2) rightfully expected Huston to move for substitution of counsel; and (3) did not receive the trial judge’s notice of intent to dismiss. The parties stipulated that (1) Gordon took appropriate steps to secure substitution of counsel and (2) Huston’s failure to move for substitution of counsel did not involve any negligence or wrongdoing by Gordon.

Nothing in the record shows Gordon was negligent for not responding to the notice. Any negligence by Gordon in failing to update the court’s register of attorneys may “at best” raise a fact issue. See Osterloh, 881 S.W.2d at 582 . It does not entitle Grant to summary judgment. See id. Even assuming, without deciding, that Wolfe had a duty to check the court’s file between October 27, 1998 and February 22, 1999, his failure to do so would not constitute fault as a matter of law, as it would have to in order to support a summary judgment. Whether Gordon was negligent by not doing so would be a fact issue. Thus, we hold the trial judge could not have correctly concluded that the dismissal resulted from Wolfe’s own fault or negligence.

*775 We sustain Wolfe’s third issue.

In his fourth issue, Wolfe contends the judge erred if he granted summary-judgment because he concluded that Wolfe had no meritorious claim.

Grant was the summary judgment mov-ant. Thus, Grant had the burden to prove as a matter of law that Wolfe had no meritorious underlying claim. 5 Grant contended that Wolfe’s bill of review petition was flawed because it did not contain sworn facts constituting a meritorious claim. Wolfe pleaded in his bill of review petition that

Plaintiff has a meritorious claim against Defendant for personal injury damages in a workplace»injury. In support thereof, the depositions taken in the Wolfe case will be filed with the Court and incorporated herein by reference.

Wolfe later filed depositions, alleging they showed his claim was meritorious. Grant did not dispute that allegation in the trial court or in its appellate brief. 6 Thus, Grant did not prove as a matter of law that Wolfe’s underlying claim was not meritorious. Accordingly, the trial judge could not have correctly granted summary judgment on that basis.

We sustain Wolfe’s fourth issue.

We reverse the judgment and remand the cause.

Justice BRISTER, concurring.

Justice SMITH, dissenting.

. The notice of intent to dismiss stated:

Court records indicate that this case is either not set for trial, abated, or no activity has taken place within the last 90 days. In an effort to determine the present status of the case, the attorney and pro se parties in this case are ordered to conduct a status conference and file a single joint status report with [the] Court Coordinator, on or before November 7, 1998....

IF NO STATUS REPORT IS FILED, THE COURT WILL CONCLUDE THAT THE PARTIES HAVE NO INTEREST IN PURSUING THIS MATTER. THE CASE WILL BE DISMISSED FOR WANT OF PROSECUTION ON November 7, 1998 at 5:00 p.m.

. The parties stipulated that Gordon (1) took appropriate steps to secure substitute counsel and (2) was not responsible for Huston’s failure to move for substitution of counsel.

. Tex.R. Civ. P. 165a(l) provides:

Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file,....

(Emphasis added.)

. A restricted appeal must (1) be brought within six months of the judgment’s signing; (2) be brought by a party who did not participate in the trial on the merits; and (3) show error on the record’s face. See Tex.R.App. P. 30; Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex.App.—Houston [1st Dist.] 1999, pet. denied).

. At trial, Wolfe would have the burden of proof on that issue.

. If Wolfe’s pleading was defective for lack of an oath, Grant's proper remedy was a special exception, rather than a summary judgment, because Wolfe could have cured the defect with an amendment. See Tex.R. Civ. P. 90; Frieserihahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998) (holding summary judgment may be proper if a pleading deficiency is of the type that could not be cured by an amendment).