Eduardo P. Lentino M.D., Individually, Eduardo P. Lentino, M.D. Assignee of Jorge A. Lentino, M.D. and Marta A. Lentino v. !Q`--Appeal from 281st District Court of Harris County

Affirmed and Memorandum Opinion filed August 2, 2007

Affirmed and Memorandum Opinion filed August 2, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01179-CV

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EDUARDO P. LENTINO, M.D., INDIVIDUALLY AND AS ASSIGNEE OF JORGE A. LENTINO, M.D., AND MARTA A. LENTINO, Appellants

V.

FROST NATIONAL BANK F/K/A CULLEN CENTER BANK AND TRUST, Appellee

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 2004-08487

M E M O R A N D U M O P I N I O N

In this equitable bill of review proceeding, pro se appellants, Eduardo P. Lentino, M.D., individually and as assignee of Jorge A. Lentino, M.D., and Marta A. Lentino (collectively referred to as appellants) appeal the trial court=s denial of their motion for summary judgment and the trial court=s granting of appellee, Frost National Bank f/k/a Cullen Center Bank and Trust=s, motion for summary judgment. We affirm.

Factual and Procedural Background

This is an equitable bill of review proceeding that has its factual origins dating back to 1982. The parties are before this court for the third time; accordingly, we limit our factual background only to those facts essential to our decision in this matter.[1]

On February 29, 2000, after appellants intentionally chose not to participate in the trial proceedings, the trial court entered a post-answer default judgment against appellants. After the trial court did not rule on a flurry of post-judgment motions filed by appellants, they appealed the February 29, 2000 judgment to this court, which we affirmed in Lentino, et al. v. Cullen Center Bank and Trust n/k/a Frost National Bank, 2002 WL 220421 (Tex. App.CHouston [14th Dist.] Feb. 14, 2002, pet. denied) (not designated for publication).

Nearly four years after the trial court entered its judgment, on February 20, 2004, appellants filed their petition for equitable bill of review seeking to set aside the original post-answer default judgment entered in favor of appellee in February 2000. Both sides ultimately moved for summary judgment. In its motion for summary judgment, appellee argued appellants= bill of review was barred because a bill of review cannot be used as an additional remedy after a party has made a timely but unsuccessful appeal. Appellee also argued it was entitled to summary judgment as appellants could not satisfy any of the elements necessary to maintain a bill of review. Appellants also filed a motion for summary judgment. Appellants sought to set aside the February 2000 judgment as well as the entry of a judgment in their favor on various causes of action they had asserted against appellee.

The trial court conducted a hearing on August 15, 2005. Finding the appellants had failed to present prima facie proof of a meritorious defense as a matter of law, the trial court granted appellee=s motion for summary judgment and denied appellants= motion. This appeal followed.

Discussion

In eight issues on appeal, appellants challenge the trial court=s granting of appellee=s motion for summary judgment and the denial of their own motion.

A. Standard of Review

The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in his favor. Id. at 548B49. We review a trial court=s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex. 1993). When, as here, both sides moved for summary judgment and the trial court grants one motion and denies the other, the court reviews the competent summary judgment evidence presented by both sides and determines all questions presented and renders the judgment that the trial court should have rendered. Village of Pheasant Run v. Kastor, 47 S.W.3d 747, 750 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). In an appeal from a summary judgment, issues an appellate court may review are those the movant actually presented to the trial court. Cincinnati Life Insurance Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). An appellate court is not precluded from affirming the judgment on other grounds the parties properly raised before the trial court, when the trial court grants summary judgment specifically on fewer than all grounds asserted. Id.

B. Bill of Review

A bill of review is an equitable proceeding by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). A bill of review complainant must prove three elements: (1) a meritorious claim or defense; (2) that he was prevented from asserting by the fraud, accident, or wrongful act of his opponent or by official mistake; and (3) the absence of fault or negligence of the complainant. Calwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). A bill of review may not be used as an additional remedy after one has made a timely, but unsuccessful appeal. Rizk v. Mayard, 603 S.W.2d 773, 776 (Tex. 1980).

 C. The Trial Court Correctly Granted Appellee=s Motion for Summary Judgment as Appellants Had Previously Appealed the February 2000 Judgment

In issues one through four of their appeal, appellants assert the trial court erred in granting appellee=s motion for summary judgment because (1) appellee did not have standing to pursue its claims against appellants; and (2) the appellants raised genuine issues of material fact regarding their meritorious defenses to appellee=s causes of action. Appellants= arguments are without merit. A bill of review may not be used as an additional remedy after one has made a timely, but unsuccessful appeal. Id. The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Transworld Fin. Serv. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). Here, appellants have already tried and unsuccessfully appealed the claims and defenses underlying their bill of review. Appellants= arguments regarding the basis for their bill of review, both here and in the trial court, simply rehash the issues resolved in appellants= appeal of the trial court=s February 2000 judgment. All of appellants= claims and defenses either were or could have been litigated in the trial and appellate courts and thus are barred by res judicata. Compania Financiara Libano v. Simmons, 53 S.W.3d 365, 367 (Tex. 2001); Rizk, 603 S.W.2d at 776. In addition, because appellants timely but unsuccessfully appealed the issues underlying the February 2000 judgment, they cannot show they have been prevented from making a claim or defense and, accordingly, they cannot utilize a bill of review. See Nabelek v. C. O. Bradford, No. 14-04-01177-CV, 2006 WL 915824, at *2 (Tex. App.CHouston [14th Dist.] Apr. 6, 2006, pet. denied) (mem. op., not designated for publication) (affirming denial of bill of review where party had timely but unsuccessfully appealed the same alleged errors underlying the bill of review and thus had not been prevented from asserting claims or defenses). We overrule appellants= first, second, third, and fourth issues.

 D. Appellee=s Motion for Summary Judgment was Not Defective

In their fifth issue, appellants contend the trial court erred when it granted appellee=s motion for summary judgment as it was defective because appellee attached voluminous documents as exhibits to its motion for summary judgment without an index and without referencing those exhibits in the body of the summary judgment motion. In issue six, appellants argue the trial court erred by not entering a written order addressing their objections and special exceptions filed in response to appellee=s motion for summary judgment. Appellants= contentions are without merit. While appellee did attach voluminous exhibits to its motion for summary judgment, the exhibits contained an index with a brief explanation as to the content of each exhibit. In addition, appellee referenced the attached exhibits throughout its motion for summary judgment. In addition, while the trial court did not issue a written order, it addressed appellants= objections and special exceptions during an August 15, 2005 oral hearing on the record. With a single exception, the trial court overruled all of appellants= objections and special exceptions during the August 15, 2005 hearing. The trial court withheld its ruling on a single objection/special exception but, by granting appellee=s motion for summary judgment, the trial court implicitly overruled the remaining objection/special exception. Clement v. City of Plano, 26 S.W.3d 544, 550 n.5 (Tex. App.CDallas 2000, no pet.) overruled on other grounds Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex. 2002); Dagley v. Haag Eng=g Co., 18 S.W.3d 787, 795 n. 9 (Tex. App.CHouston [14th Dist.] 2000, no pet.). We overrule appellants= fifth and sixth issues.

 E. The Trial Court Did Not Abuse Its Discretion by Not Granting Appellants= Motion for New Trial

The decision whether to grant or deny a motion for new trial is within the trial court=s discretion. Balias v. Balias, Inc., 748 S.W.2d 253, 257 (Tex. App.CHouston [14th Dist.] 1988, writ denied). This court will not disturb the trial court=s ruling on a motion for new trial absent an abuse of discretion. Vickery v. Tex. Carpet Co., Inc., 792 S.W.2d 759, 761 (Tex. App.CHouston [14th Dist.] 1990, writ denied). In matters committed to a trial court=s discretion, the test for abuse of that discretion is whether the trial court acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). This standard also applies when the motion for new trial is overruled by operation of law. Bank One v. Moody, 830 S.W.2d 81, 85 (Tex. 1992). As we have already determined that the trial court properly granted appellee=s motion for summary judgment and appellants did not present new evidence or arguments in their motion for new trial, but merely repeated prior arguments, the trial court did not abuse its discretion when it overruled, by operation of law, appellants= motion for new trial. We overrule appellants= seventh issue.

F. Findings of Fact and Conclusions of Law Are Inappropriate in a Summary Judgment Proceeding

In their final issue, appellants argue the trial court erred when it failed to enter findings of fact and conclusions of law following its ruling on the parties= competing motions for summary judgment. Appellants= argument is without merit as findings of fact and conclusions of law have no place in a summary judgment proceeding. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). If summary judgment is proper, then there are no facts to find, and the legal conclusions have already been stated in the motion and the response. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 20 S.W.3d 119, 125 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). A trial court should not make, and the appellate court cannot consider, such findings and conclusions in connection with a summary judgment. Id. The cases cited by appellants do not change this result as, with a single exception, they are not summary judgment cases. See Gene Duke Builders, Inc. v. Abilene Hous. Auth., 138 S.W.3d 907, 907 (Tex. 2004) (per curiam) (trial court granted defendant=s plea to the jurisdiction); Tenery v. Tenery, 932 S.W.2d 29, 29 (Tex. 1996) (appeal from a divorce decree); Higginbotham v. General Life and Acc. Ins. Co., 796 S.W.2d 695, 695 (Tex. 1990) (appeal from the denial of a motion for new trial following no-answer default judgment); Addington v. Addington, No. 14-03-00340-CV, 2004 WL 1472127, at *1 (Tex. App.CHouston [14th Dist.] July 1, 2004, no pet.) (mem. op., not designated for publication) (appeal from award of attorney=s fees following the non-suiting of a declaratory judgment action); Goodenbour v. Goodenbour, 64 S.W.3d 69, 73 (Tex. App.CAustin 2001, pet. denied) (trial court granted defendant=s special appearance); Hernandez v. Texas Dept. of Ins., 923 S.W.2d 192, 194 (Tex. App.CAustin 1996, no writ) (trial court granted defendant=s plea to the jurisdiction); Goggins v. Lea, 849 S.W.2d 373, 375 (Tex. App.CHouston [14th Dist.] 1993, no writ) (appeal from a bench trial of a forcible detainer action).

The sole summary judgment case cited by appellants, West Columbia Nat=l Bank v. Griffith, 902 S.W.2d 201, 204B05 (Tex. App.CHouston [1st Dist.] 1995, writ denied), can be distinguished on its facts. The initial issue to be resolved in Griffith was the appellate court=s jurisdiction over the appeal. Id. at 203. In Griffith, the trial court issued an interlocutory order granting Griffith=s bill of review. Id. Following that interlocutory order, the trial court ultimately granted Griffith=s motion for summary judgment finally disposing of the entire case. Id. In its determination of the jurisdictional issue, the appellate court held West Columbia National Bank was entitled to request that the trial court enter findings of fact and conclusions of law as to the interlocutory order granting the bill of review once the final summary judgment was granted, thus extending the deadline for the bank to file its appeal. Id. at 205. Crucial to the court=s decision in Griffith was the fact there were two separate orders: an interlocutory order granting the bill of review, for which findings and conclusions could be made, and the final summary judgment where they could not. Id. at 204. Here, there was no interlocutory order issued, only a final summary judgment. Accordingly, the trial court did not err in refusing appellants= request. We overrule appellants= eighth issue.

Conclusion

Having overruled all of appellants= issues on appeal, we affirm the trial court=s November 28, 2005 final summary judgment denying appellants= bill of review.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 2, 2007.

Panel consists of Justices Anderson, Fowler, and Edelman.

[1] See our prior opinions in Lentino, et al. v. Cullen Center Bank and Trust n/k/a Frost National Bank, 2002 WL 220421 (Tex. App.CHouston [14th Dist.] Feb. 14, 2002, pet. denied) (not designated for publication) and Lentino et al. v. Cullen Center Bank and Trust, 919 S.W.2d 743 (Tex. App.CHouston [14th Dist.] 1996, writ den.) for a more detailed rendition of the facts underlying this appeal.