When a Judgment is taken against you and you do not want your credit ruined, you have two choices: pay the judgment or fight it. If you decide to fight the judgment there are four main ways a judgment can be challenged: a motion for new trial, an appeal, a restricted appeal, and a bill of review.
What is a Motion for New Trial?
A motion for new trial is a tool for a party to the judgment to challenge defects or errors in the judgment. The motion must be filed within 30 days of the judgment. Failure to do so constitutes a waiver of not just the motion itself, but also waives most grounds for filing an appeal. Before an appellate court will hear many complaints, they require that you present them to the trial court judge via the motion for new trial.
What is an Appeal?
An appeal, or writ of error, is a request for a higher court to review a lower court’s opinion. In a civil case in Texas, appellate procedure is very complex. There are numerous notices and motions that must be filed by certain deadlines or the right to appeal may be waived. Appellate courts do not hear new evidence. There review the issues appealed looking for error that they feel is likely to have resulted in the rendition of an improper verdict. The most common grounds for appeal include:
- the lower court giving an improper jury instruction
- Juror misconduct
- The verdict is against the greater weight and preponderance of the evidence
- Improper admission or exclusion of evidence that probably led to the rendition of an improper verdict.
- Improper use of peremptory challenges.
You cannot simply appeal because you did not like the verdict. The appellate court does not retry the case. Thus, you need to have a lawyer handle this between the required prerequisite filings and the difficult standards to overcome.
What is a Restricted Appeal?
A restricted appeal is a way to file a direct attack on a judgment by someone who was not a party to the proceeding that resulted in the judgment. A restricted appeal is permitted when:
- it is filed within six months after the trial court signed the judgment;
- by someone who was a party to the suit;
- who did not participate at trial and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law in order to preserve a right to appeal; and
- the error is apparent from the face of the record.
See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). This remedy is generally available for people who failed to receive notice of a default and the judgment has a clear error.
What is a Bill of Review?
A bill of review is an independent, equitable proceeding brought by a party to a previous action seeking to set aside a judgment in that action that is no longer subject to challenge by a motion for new trial or a direct appeal. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). In order to win on a bill of review, the plaintiff must plead and prove that the petitioner has (1) a meritorious claim or defense, (2) which the plaintiff was prevented from making by official mistake or by the opposing party’s fraud, accident, or wrongful act, (3) unmixed with any fault or negligence on the plaintiff’s part. See Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015). However, if Plaintiff proves that he has a meritorious defense and that he did not receive actual or constructive notice of the default, this will establish the third element without the need for further evidence. So, for example, in Marathon Petroleum v. Cherry Moving Co., 550 S.W.3d 791, 798 (Tex.App.—Houston [14th Dist.] 2018, no pet.) the Appellate Court found all elements were met where the District Court Clerk committed an official mistake by mailing the notice of dismissal to the wrong address for the attorneys of record thereby preventing them from receiving proper notice of the dismissal.
In order to pursue this remedy, the bill of review must be filed no sooner than 4 months and no later than 4 years after the Court renders the judgment that is being complained of. Prior to four months, there are other remedies (as discussed above) available. If the petitioner wins the bill of review, then the judgment is overturned and the parties start off at square one again as if no judgment had been entered.
Conclusion
There are four main vehicles with which to challenge a judgment taken against you. Each vehicle has its own prerequisites and requirements that must be met before you are permitted to use them. Failure to meet these will result in your challenge being dismissed. Thus, you should speak to a appellate lawyer immediately to determine which one you may be able to use and how to do it correctly.
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