A bill of review Texas offers parties a final shot at setting aside a judgment if they’re already too late to appeal or move for a new trial. It isn’t an appeal for the underlying judgment but a direct attack on the rendered judgment.

Bill of review texas

This proceeding is filed in the same court that set out the judgment. This article discusses the particulars of this type of proceeding, including its elements and the various settings it may apply in.

What Does a Bill of Review in Texas Mean?

A bill of review in Texas means an independent equitable action filed by an individual in response to a prior suit looking to overrule a judgment that can’t be appealed or be subject to a motion for a new trial. It’s filed as a new lawsuit and has unique elements.

Essentially, a bill of review is a party’s last chance to reverse a judgment if they can’t appeal or file for a new trial. If a petition for a bill of review is successful, the court sets aside the judgment in the underlying lawsuit, and parties assume their original status as plaintiff and defendant. As in other cases, the burden of proof is on the original plaintiff to prove their case.

General Elements of a Bill of Review in Texas

For a bill of review to succeed, the petitioner has to plead and prove the following elements:

  • A meritorious defense to the alleged cause of action or a meritorious ground for an appeal or new trial.
  • The petitioner failed to make this defense due to accident, fraud, or wrongful act of the other party or by official mistake.
  • The actions above were unmixed with any negligence or fault on their part.
  • That through no fault of their own, no other remedy is available.

From these elements, it is clear that the bill of review may apply in different situations and on different grounds. While the typical setting for this action is a default judgment, a party may file a bill of review after any other type of judgment or dismissal.

Settings for a Bill of Review in Texas

Going by the Texas Supreme Court precedents, there are various settings for a bill of review, each having its elements. Below are some of those.

– Default Judgment With Service of Process

In this setting, the defendant is properly served but fails to file an answer, resulting in a default judgment. The defendant files for a bill of review to get the opportunity to defend against the claims in the underlying lawsuit and hopefully reverse the prior judgment.

Default judgment with service of process

While each setting has different elements, a “general and almost invariable” rule is that the petitioner must prove each of the elements outlined above in the “typical” bill of review case.

In this setting, the petitioner must prove that they didn’t file an answer due to the other party’s wrongful conduct or official mistake, unaccompanied by the petitioner’s negligence.

– Default Judgment Without Proper Service of Process

If a petition for bill of review Texas succeeds after proving that service of the process wasn’t done, the judgment is overruled and a new trial granted. Lack of service breaches constitutional due process and removes the need to prove any general elements.

Generally, a party has no duty to respond to the lawsuit if they aren’t served and are entitled to a bill of review without further showing. That also holds if the petitioner proves that the service was defective.

– Loss of Right to File a Motion for New Trial

A bill of review may also apply in cases where one suffers a default judgment and fails to file a motion for a new trial. To succeed in this case, the petitioner has to prove a failure to file a request for a new trial due to an official mistake.

They must also show that failure to respond was unintentional or did not result from conscious indifference. The petitioner must also prove that they have a meritorious defense to the claims made in the underlying lawsuit and that the opposing party won’t suffer any injury.

– Loss of Right to File a Request for a New Trial or Appeal

A party may file a bill of review if they lose their right to file a motion for a new trial or appeal a previous judgment. In this case, they must allege and prove a prima facie meritorious ground for an appeal or new trial.

Loss of right to file a request for a new trial or appeal

They must also show that they were prevented from making this defense by fraud, accident, or wrongful conduct of the other party, without the petitioner’s fault or negligence. The original petition for bill of review Texas should feature the trial court’s errors, which would set the grounds for an appeal or new trial.

– Dismissal of the Plaintiff’s Case

The plaintiff in the underlying lawsuit may file a bill of review if their case has been dismissed. A lawsuit may be refiled if a court determines that the bill of review is necessary and that the statute of limitations on the original cause of action hasn’t expired. If a bill of review is necessary, the petitioner must prove all the general elements.

Bill of Review Procedure in Texas

Before filing an equitable bill of review, Texas attorneys should examine the underlying case’s court file. They should also examine a copy of the petition and return of service to establish whether you were properly served. Your attorney should also ascertain that all the relevant notices were properly and timely mailed to the parties involved.

Generally, a bill of review follows the following procedures:

– The Pleadings

Upon confirming the facts and deciding that you want to pursue a bill of review, the petitioner must file a sworn petition claiming factually and with the particular grounds for the bill of review. In the usual case, the petition must have sworn allegations of the facts enough to constitute a defense.

The petition must show the previous judgment was rendered as a result of fraud, accident, or wrongful act of the other party or an official mistake. Further, the petition must contain facts showing a lack of negligence on the petitioner’s side. However, other settings or situations could require different claims. The bill of review is filed as an independent lawsuit.

– The Pretrial Hearing

Once the petitioner files and serves the petition, the defendant is expected to file an answer. Parties may conduct discovery in preparation for the pretrial hearing. During this hearing, the court evaluates the claim or meritorious defense. The petitioner bears the burden of proof as they must support their claim.

The pretrial hearing

Usually, this hearing is conducted exclusively to determine the merits of the defense or claim. It follows that the other party need not present any contradicting evidence. This procedure can vary depending on the grounds for filing the bill of review.

Statute of Limitations of a Bill of Review in Texas

A bill of review must be filed within four years of the judgment date as it falls within the residual statute of limitations. However, the exception is if the petitioner proves extrinsic fraud or shows that the lawsuit or judgment was fraudulently concealed. It’s important to note that the statute of limitations doesn’t begin to run until the party discovers the fraud.

If you’re looking for a sample bill of review, Texas attorneys can show you examples and also help you understand the process and all the steps you need to follow.

Conclusion

A bill of review Texas provides a remedy if you can’t file for a new trial or appeal a prior judgment. This article highlights the various aspects of a bill of review. Here’s a summary of the discussion:

  • A bill of review in Texas may be filed in different settings, but the typical setting is a default judgment.
  • The petitioner should file a bill of review no later than four years from the judgment date unless they can prove extrinsic fraud.
  • For a petition to succeed, the petitioner must prove the general elements of a bill of review.

As with any other court process, it is important to consult an experienced attorney if you consider setting aside a judgment using a bill of review.

Sources:

http://www.jtexconsumerlaw.com/V10N3/V10N3Equitable.pdf

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