Opinions, September 22, 2016: Necessary Elements of Bill of Review

The First District Court of Appeals released its memorandum opinion in Garcia v. Garcia, No. 01-15-00296-CV, affirming the trial court’s denial of a bill of review.

In 2012, Donna Garcia filed for divorce from Jesus Garcia. About two years after the decree was entered, Jesus filed a bill of review, arguing that he should have been awarded the marital home in the decree. Donna filed a no-evidence motion for summary judgment, arguing that there was no evidence to support the necessary second and third elements of a bill of review (that Jesus was prevented from making a meritorious defense by fraud, accident, or wrongful act of Donna or official mistake, or that his failure to assert a meritorious defense was unmixed with any fault or negligence of his own). In response to Donna’s MSJ, Jesus submitted an affidavit which stated:

I was led to believe that when I was awarded the marital home on the day of my divorce trial, [Donna] had timely made all mortgage payment[s] in accordance with the Court’s order. I later learned that [Donna] had not made a single mortgage payment and that the home I was awarded was about to be foreclosed. I also learned that [Donna] had failed to forward to my attention the numerous notices sent from the mortgage and foreclosure companies that could have saved the home from foreclosure. On my own initiative and without any knowledge of the notices, I began trying to make contact with the mortgage company, but I was informed that they would not speak with me unless they had permission from [Donna], which she never gave. Upon learning how behind on mortgage payments the home 4 was, I began making mortgage payments every month to the mortgage company only to find out months later that none of the payments had been applied to the home because it had gone into foreclosure. To date, I have not recovered and am still trying to track down the nearly $10,000 in mortgage payments I made to the mortgage company, but that was never applied towards the home. The home was lost to [foreclosure] on __________.

The trial court granted the MSJ. The Court of Appeals affirmed because Jesus failed to negate all possible grounds raised by Donna’s summary judgment motion.