Opinions, Feb. 2, 2017: Bill of Review & Proving Post-Default Judgment Diligence

Happy Groundhog Day! Hope yours is better than Phil’s.

The Fourteenth Court of Appeals released its memorandum opinion in Grant v. Calligan, No. 14-15-01084-CV this morning, affirming the trial court’s denial of a bill of review.

Grant filed a divorce petition against Calligan in 2013. The trial court sent a scheduling order with a trial date (January 13, 2014) to Grant’s attorney. Grant’s attorney testified he never received this notice. Calligan showed at the trial, but Grant and his attorney did not. The trial court (the 246th) entered a default judgment which was signed January 31, 2014.

About ten months later, on December 2, 2014, Grant filed a bill of review. At trial, Grant’s attorney testified that he never received notice of trial. The Court of Appeals presumed this to be true in its analysis. Grant’s attorney also testified that when he received notice of the default judgment, he called up his appellate counsel. But, the Court of Appeals noted, the record did not contain any evidence of when that allegedly happened. That is, was it while the trial court still had plenary power or not?

Even though the Court of Appeals presumed Grant established that he did not receive notice of the trial date, he still had the burden of establishing that he diligently pursued “all available and adequate legal remedies against the default judgment.” Grant asserted he was not required to pursue any post-judgment remedies (such as a MNT) because he also did not receive notice of the default judgment until after the trial court’s plenary power expired. The record did not include any evidence which tended to show Grant’s attorney didn’t receive notice of the default judgment, either. At this point, I was thinking “How can you prove you didn’t receive something?” But the Court of Appeals pointed to the following exchange between the trial court and Grant’s attorney:

Trial Court: What did you do when you got the notice of the clerk that the default had been granted?

Grant’s Attorney: That’s when I contacted my client to see if he received any–anything in the mail or was served–personally served and he said no and then contacted [appellate counsel].

This testimony, the Court of Appeals stated, did not indicate when Grant’s attorney received notice of the default judgment, much less the date he contacted his client or appellate counsel. As such, the COA said, the record did not include evidence that he received notice of the default judgment after the trial court lost plenary power, meaning Grant failed to establish that he diligently pursued his available legal remedies. The COA affirmed the trial court’s denial of the Bill of Review.

This raises the question: If Grant’s attorney had testified that he received the notice of default judgment on March 3 (the day after the trial court lost plenary power), would that have been sufficient evidence to overrule the trial court’s denial of the BOR? If I had world enough and time, I’d research it myself to see if there’s any caselaw out there. However, the fact that the BOR petition wasn’t filed for ten months ¬†after the default was entered certainly is a strike against Grant’s case.