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Wolfe v. Grant Prideco8/2/2001
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. 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.
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.
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, i.e., 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, i.e., to the address listed "on the docket or in the papers on file." See TEX. R. CIV. P. 165a(1).
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 w
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