Kachar v. Harris County Attorneys (Tex.App.- Houston [1st Dist.] May 7, 2009)(Hanks)
(bill of review, due diligence in using available remedies, termination of parental rights, vexatious litigant
designation)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00730-CV
Karen Kachar v. Harris County Attorneys
Appeal from 257th District Court of Harris County
Trial Court Judge: Hon. Judy Warne
Opinion issued May 7, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00730-CV
KAREN KACHAR, Appellant
V.
HARRIS COUNTY ATTORNEYS, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2007-50084
MEMORANDUM OPINION
Appellant, Karen Kachar (“Kachar”), appeals the trial court’s order dismissing her bill of review. We affirm.
Background
This case arises out of a long history of litigation between Kachar and various parties regarding custody of
Kachar’s minor daughter, N. Footnote On August 22, 2006, the trial court terminated Kachar’s parental
rights. Kachar filed a motion for new trial and a notice of appeal. On May 31, 2007, this court issued a per
curiam memorandum opinion dismissing Kachar’s appeal for want of prosecution for failure to either
establish indigence or pay or make arrangements to pay the clerk’s fee for preparing the clerk’s record.
Kachar v. Tex. Dep’t of Family Protective Servs., No. 01-06-01127-CV, 2007 WL 1559890 (Tex. App.—
Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.) (per curiam) (“Kachar I”).
On August 22, 2007, Kachar filed a bill of review petition, seeking to have the termination of her parental
rights rescinded. Kachar subsequently filed a “First Amended Bill of Review” and a “First Supplement to First
Amended Bill of Review.” During the pendency of the matter, the trial court entered an order declaring
Kachar a vexatious litigant. This court later affirmed that order on appeal. Kachar v. Dep’t of Family and
Protective Servs., No. 01-08-00074-CV, 2009 WL 40000 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no
pet.) (mem. op.) (“Kachar II”).
At the trial on Kachar’s bill of review, the trial court found that Kachar was not entitled to relief because “an
appeal was taken by [Kachar] to the court of appeals on the underlying termination case and . . . that appeal
was either dismissed or denied . . . .” On August 5, 2008, the day after the trial, the trial judge signed a final
order dismissing Kachar’s bill of review on the ground that Kachar “availed herself of her appellate remedies
and the appeal was dismissed . . . .”
Bill of Review
In eleven issues, Kachar contends that the trial court erred in dismissing her bill of review.
Standard of Review
A bill of review is an equitable proceeding brought by a person seeking to set aside a judgment that is no
longer subject to challenge by a motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96-97
(Tex. 2004); Wolfe v. Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex. App.—Houston [1st Dist.] 2001, pet.
denied). Generally, a bill of review plaintiff must allege and prove (1) a meritorious claim or defense to the
cause of action that supports the judgment, (2) which she was prevented from making by fraud, accident, or
wrongful act of the opposing party, (3) unmixed with any fault or negligence of her own. Caldwell, 154 S.W.
3d at 96; Wolfe, 53 S.W.3d at 773.
Additionally, a bill of review is proper only when a party has exercised due diligence to prosecute all
adequate legal remedies against a former judgment. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003); Wolfe, 53 S.W.3d at 773. This due diligence requirement is distinct from the three elements of the bill
of review. Caldwell v. Barnes, 975 S.W.2d 535, 537-38 (Tex. 1998).
We review a trial court’s ruling on a bill of review for an abuse of discretion, indulging every presumption in
favor of the court’s ruling. Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (citing Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex. App.—Austin 2000,
pet. denied)). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without
reference to guiding rules and principles. Id.
Previous Appeals
While Kachar’s brief and live bill of review petition are difficult to follow, her central argument appears to be
that the trial court intentionally “sabotag[ed] Kachar’s appellate timetable” by denying her access to the trial
court’s file, tampering with the file, colluding with opposing counsel, and entering a judgment nunc pro tunc
in the termination case without giving her notice. As a result, Kachar asserts, her appeal of the termination
order was dismissed as untimely filed. However, a review of our opinion in the matter reveals that Kachar’s
appeal of the termination order was actually dismissed for want of prosecution because Kachar had “neither
established indigence, nor paid or made arrangements to pay the clerk’s fee for preparing the clerk’s
record.” Kachar I, at *1. Kachar does not contend, and the record does not reflect, that the conduct of the
trial court or any other party prevented her from establishing indigence or ensuring that the clerk’s fee was
paid.
When this court, in Kachar II, affirmed the trial court’s order declaring Kachar a vexatious litigant, we held
that the trial court did not abuse its discretion in finding that there was no reasonable probability that Kachar
would succeed on the merits of her bill of review action, Footnote noting that,
[b]ecause Kachar received notice [of the proceedings that resulted in termination of her parental rights], and
actually filed a direct appeal [Kachar I] of the judgment she sought to attack via her bill of review, she could
not, as a matter of law, establish the second element of a bill of review proceeding—extrinsic fraud that
denied her the opportunity to fully litigate at trial all the rights or defenses that could have been asserted.
King Ranch, Inc., 118 S.W.3d at 751. Nor, based on these facts, could she have established the third
element necessary for a bill of review—that her failure to raise a meritorious defense in the initial litigation
was “unmixed with any fault or negligence” on her part. Id.
Kachar II, at *4.
In the instant matter, we adopt the same position on this issue that we expressed in Kachar II and note
further that, because Kachar’s appeal from the order terminating her parental rights (Kachar I) was
dismissed for want of prosecution, she also could not establish that she exercised due diligence to
prosecute all adequate legal remedies against the termination order. Footnote
Accordingly, we overrule Kachar’s issues and hold that the trial court did not abuse its discretion in
dismissing Kachar’s bill of review.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Hanks.