Court of Appeals of Texas, Dallas.

Rosaura HERRERA, Appellant,

v.

WEMBLEY INVESTMENT COMPANY, Appellee.

No. 05–96–00446–CV.

|

Aug. 8, 2000.

Before Justices LAGARDE, WRIGHT, and FITZGERALD.¹

OPINION ON REMAND

WRIGHT

*1 Rosaura Herrera appeals the summary judgment setting aside the default judgment against Wembley Investment Company. On original submission, this Court concluded that Wembley failed to meet its summary judgment burden showing it was entitled to pursue a bill of review because it failed to prove as a matter of law that it diligently pursued all available legal remedies. Accordingly, we sustained Herrera’s second point of error and remanded to the trial court. See Herrera v. Wembley Inv. Co., 12 S.W.3d 83, 89–90 (Tex.App.—Dallas 1998), rev’d, 11 S.W.3d 924 (Tex.1999). The Texas Supreme Court disagreed, concluding that Wembley’s summary judgment proof established that it was never served with a copy of the nonsuit motion or order and its failure to obtain a ruling on its motion for new trial resulted from the accidents or wrongful acts of others and not from a lack of diligence. Wembley, 11 S.W.3d at 927–28. The supreme court then remanded the cause for us to consider Herrera’s remaining points of error (points of error one and three through six). Id. at 928. Neither party challenged our determination that the final judgment was the January 20, 1995 nonsuit order, rather than the December 13, 1993 default judgment, and the supreme court did not consider that holding. See id. at 927 n. 3. Thus, we consider Herrera’s remaining points of error from that perspective.

Herrera’s first point of error, complaining that Wembley was precluded from pursuing a bill of review because it failed to show it diligently pursued its legal remedies, is premised on the final judgment being the December 13, 1993 default judgment, rather than the January 20, 1995 nonsuit order. Thus, we need not consider point of error one on remand. In her remaining points of error, Herrera complains that the trial court erred by granting Wembley’s motion for summary judgment because Wembley failed to prove, as a matter of law, that: (1) it was free of negligence; (2) it did not act with conscious indifference; (3) the judgment in the underlying case was the result of official mistake; and (4) it was not liable to Herrera in the underlying cause of action. We overrule Herrera’s remaining points of error and affirm the trial court’s judgment.

Factual and Procedural Background

Herrera was leaving work when she slipped and fell, injuring her back. Wembley owned, and Vantage Management Company (Vantage) managed, the building where Herrera fell. Herrera sued Wembley and Vantage, claiming that their negligence and gross negligence caused her injuries.²

Wembley and Vantage were wholly-owned subsidiaries of Vantage Companies.³ Both Wembley and Vantage were insured under a liability policy issued by American & Foreign Insurance Company, a member of the Royal Insurance Group.

Herrera served Wembley’s registered agent, C.T. Corporation System, on December 11, 1991. C.T. forwarded the citation to Vantage Companies. In turn, Vantage Companies forwarded notice of the lawsuit against Vantage and Wembley to Royal. Apparently, Royal received notice of the lawsuit against Vantage before it received notice of the suit against Wembley. When Royal received the citation and petition against Vantage, Royal directed a law firm, Thompson & Knight, to answer the lawsuit. Later, on December 27, 1991, Neal Akins, a claims supervisor for Royal, received the citation and petition against Wembley. Akins determined, either through reviewing computer information or the claim file, that Royal already had an open file for the case and Thompson & Knight had been directed to answer the lawsuit. According to Akins, he did not realize the citation and petition received on December 27, 1991, were separate from the citation and petition against Vantage, which Royal had already directed Thompson & Knight to answer. As a result, Akins attached a note stating “Answer is already ordered Thompson & Knight.” Akins then forwarded the citation and petition to Gary Freeman, the claims representative assigned to handle Herrera’s lawsuit.

*2 Likewise, Freeman did not realize the citation was directed to Wembley rather than Vantage. Not realizing the citation that Akins sent to him was directed to Wembley, he did not check to see whether Wembley was an insured. Nor was he aware from previous dealings with Wembley that it was a subsidiary of the Vantage Companies, and thus an insured. As a result, Freeman did not direct Thompson & Knight or any other law firm to answer for Wembley, and Wembley never answered the lawsuit.

Vantage moved for summary judgment on the grounds that: (1) a lessor’s liability for a dangerous premises condition ends when the property is transferred to the lessee; (2) the lease with Herrera’s employer expressly provided that the lessee would maintain the premises; and (3) the lease expressly absolved the lessors from liability for premises defects. The trial court granted Vantage’s motion and entered a take-nothing judgment in its favor.

A little over a year later, on December 13, 1993, the trial court granted a default judgment against Wembley and others. The judgment recites that Herrera’s claims against Mary Kay Cosmetics, Vantage, and Halff were previously resolved by dismissal or take-nothing judgments, but the judgment does not address Hartford’s subrogation claims against these three defendants. The judgment awards Herrera a default judgment against Wembley and five remaining defendants in the amount of $1,259,314.32. Hartford is also awarded judgment against these defendants to the extent of its subrogated interest. On December 20, 1993, Herrera nonsuited Yamamoto, Ameplaza, and John Doe, who had not been served.

The record does not reflect that the clerk mailed notice of the default judgment to Wembley, and Herrera concedes that the clerk apparently did not do so. Wembley first learned of the default judgment on August 18, 1994, when Herrera’s counsel contacted Wembley’s chairman. Wembley claims it was only then that Royal learned that Wembley was its insured. Royal retained counsel to overturn the default judgment against Wembley. Uncertain about the default judgment’s finality, Wembley filed both a motion for new trial and a petition for bill of review. Discovery proceeded, and the motion for new trial was set for hearing on January 17, 1995. The trial court reset the hearing to January 24, 1995, and later postponed it at Herrera’s counsel’s request.

In mid-January 1995, Herrera’s counsel informed Hartford that some of its subrogation claims had not been dismissed. Herrera’s counsel requested Hartford to file a motion for nonsuit and proposed judgment on these claims, which it did. The trial court granted Hartford’s motion and signed the “Judgment of Nonsuit” as to all nondefaulting defendants on January 20, 1995. Although Wembley had entered an appearance, it did not receive a copy of the nonsuit motion or judgment. Wembley first learned of the nonsuit on September 20, 1995, at the hearing on its motion for new trial. By that time, the trial court lacked jurisdiction to grant a motion for new trial, and Wembley could not seek relief by appeal or writ of error. The trial court denied Wembley’s motion for new trial, and Wembley moved for summary judgment in the bill of review proceeding.

*3 In its motion, Wembley argued that the trial court should grant the bill of review and set aside the default judgment. According to Wembley, it failed to file an answer due to a series of errors, not through conscious indifference, and it was prevented from seeking review of the default judgment by official error or accident. Wembley also alleged that it was not liable to Herrera for the same reasons as those which supported the summary judgment previously granted in favor of Vantage, i.e., because it did not retain possession or control over the building it leased to Herrera’s employer.

Herrera responded, claiming that Wembley was not entitled to challenge the default judgment in the bill of review proceeding because the summary judgment proof: (1) failed to establish, as a matter of law, that it pursued its available legal remedies; (2) established, as a matter of law, that it was consciously indifferent; or alternatively (3) showed fact issues about whether Wembley pursued its legal remedies or was consciously indifferent.

After considering the summary judgment evidence, the trial court determined that Wembley had established the necessary bill of review elements as a matter of law and it had a meritorious defense to Herrera’s suit. Accordingly, the trial court granted Wembley’s motion for summary judgment, set aside the December 13, 1993 default judgment, and rendered a take-nothing judgment against Herrera in the underlying case.

Bill of Review

In points of error three and four, Herrera argues that Wembley is precluded from seeking relief by bill of review. Specifically, Herrera contends the trial court erred by granting Wembley’s motion for summary judgment because Wembley failed to prove that its failure to file an answer was not negligent nor the result of conscious indifference. We disagree.

A bill of review is an independent action to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. Wembley, 11 S.W.3d at 926–27; Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief by bill of review. See Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex.1950). To invoke the equitable powers of the court, the traditional bill of review complainant must allege and present prima facie proof that: (1) the prior judgment was rendered as the result of fraud, accident, or wrongful act of the opposite party or official mistake; (2) without any fault or negligence of his own; and (3) the existence of a meritorious defense to the cause of action alleged to support the judgment. See Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex.1979); Petro–Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 243 (Tex.1974); Hagedorn, 226 S.W.2d at 998.

However, a less onerous burden applies for a party whose failure to file a timely motion for new trial, or motion to reinstate, was induced by misinformation from the court or the clerk. See Hanks v. Rosser, 378 S.W.2d 31, 34–35 (Tex.1964); Buddy L, Inc. v. General Trailer Co., 672 S.W.2d 541, 544 (Tex.App.—Dallas 1984, writ ref’d n.r.e.); Parker v. Gant, 568 S.W.2d 163, 165 (Tex.Civ .App.—Dallas 1978, writ ref’d n.r.e.). A clerk’s failure to send the notice required by the rules of civil procedure is equivalent to misinformation by the clerk. Petro–Chemical, 514 S.W.2d at 244; Buddy L, Inc., 672 S.W.2d at 545. In such a case, because the party missed an opportunity to file a motion for new trial due to court misinformation, the party is held to the less onerous burden of pleading and proving the elements he would have been required to address if he had timely filed a motion for new trial or motion to reinstate. See Hanks, 378 S.W.2d at 34–35; Rund v. Trans East, Inc., 824 S.W.2d 713, 717 (Tex.App.—Houston [1st Dist.] 1992, writ denied). Such elements are: (1) the entry of the underlying judgment was not due to intentional conduct or the result of conscious indifference on the part of the party, but was due to a mistake or an accident; (2) the party has a meritorious claim or defense; and (3) granting a new trial will not result in delay or otherwise injure the other party. See Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex.1939).

*4 Here, the summary judgment evidence shows that although Wembley entered an appearance, the clerk of the court failed to notify Wembley of the nonsuit motion or judgment and it did not receive a copy of the nonsuit motion or judgment from Herrera. See Wembley, 11 S.W.3d at 927. Thus, under Hanks, to be entitled to a bill of review, Wembley must show: (1) its failure to file an answer was not intentional nor the result of conscious indifference; (2) it was misinformed by the clerk within the time for filing a motion for new trial and thus prevented from filing a motion for new trial; (3) a meritorious defense; and (4) the opposing party will not suffer injury by the granting of the bill of review. Hanks, 378 S.W.2d at 34–35; Buddy L, 672 S.W.2d at 544; Parker, 568 S.W.2d at 165. Because, under Hanks, Wembley is not required to show a lack of negligence, but only that its failure to file an answer was not intentional or the result of conscious indifference, we conclude Herrera’s argument that Wembley is precluded from seeking relief by bill of review because it failed to prove that it was not negligent lacks merit. We overrule point of error three.

In point of error four, Herrera contends that the trial court erred by granting Wembley’s motion for summary judgment because Wembley failed to prove that its failure to file an answer was not the result of conscious indifference. After reviewing the record and applicable law, we conclude Wembley met its burden to show that its failure to file an answer was not the result of conscious indifference, but was due to a mistake or an accident.

To rise to the level of conscious indifference, the evidence must show Wembley was clearly aware of a situation and acted contrary to what such awareness dictated. See Guardsman Life Ins. Co. v. Andrade, 745 S.W.2d 404, 405 (Tex.App.—Houston [1st Dist.] 1987, writ denied); see also State v. Sledge, 982 S.W.2d 911, 914 (Tex .App.—Houston [14th Dist.] 1998, no writ) (conscious indifference means failing to take some action which a person of reasonable sensibilities would take under similar circumstances). Some excuse, even a slight or not very good excuse, for failing to file an answer or appear is sufficient to set aside a default judgment. See Ferguson & Co. v. Roll, 776 S.W.2d 692, 695 (Tex.App.—Dallas 1989, no writ); Sledge, 982 S.W.2d at 914; National Rigging, Inc. v. City of San Antonio, 657 S.W.2d 171, 173 (Tex.App.—San Antonio 1983, writ ref’d n.r.e.).

Here, the summary judgment evidence shows that Freeman, the claim specialist for Royal, received the notice of the lawsuit against Vantage and forwarded it to Thompson & Knight, who filed an answer. Later, another claim specialist, Akins, received notice of the lawsuit against Wembley. Apparently confusing the lawsuit against Wembley with the lawsuit against Vantage, Akins attached a note to the Wembley petition stating “Answer is already ordered Thompson & Knight.” As a result, Royal never directed an answer be filed. Under these circumstances, we conclude Wembley’s failure to answer before judgment was not intentional or the result of conscious indifference, but was due to a mistake. See Torres v. Rios, 869 S.W.2d 555, 557 (Tex.App.—Corpus Christi 1993, no writ) (order requiring counsel to appear for pretrial conference was mailed in same envelope as order in another case; counsel did not notice orders were in different cases and failed to appear for conference); Guardsman, 745 S.W.2d at 405–06 (counsel confused papers of lawsuit with another lawsuit pending in different county); National Rigging, 657 S.W.2d at 173 (petitions against two companies served on president; president forwarded only one petition to insurance company because he assumed petitions were duplicates, not separate petitions). We overrule point of error four.

Inadequate Briefing

*5 In point of error five, Herrera contends the trial court erred by granting Wembley’s motion for summary judgment because it failed to prove that the default judgment was the result of fraud, accident, or wrongful act of the opposing party or official mistake. Herrera’s entire argument under this point is as follows:

An examination of the summary judgment proof will reveal that there was no summary judgment proof to show that the judgment in Herrera v. Wembley, et al, was the result of fraud, accident, or wrongful act of the opposing party or the result of official mistake. This was one of the elements necessary for it to succeed. Alexander v. Hagedorn, supra., Gracey v. West, supra., Baker v. Goldsmith, supra.

Rule 38 of the rules of appellate procedure provides that a brief to the court of appeals shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” See Tex.R.App.P. 38.1; Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983); see also Fredonia State Bank v. General Am. Life Ins. Co., 881 S .W.2d 279, 284 (Tex.1994) (appellate court has discretion to waive point of error due to inadequate briefing). The failure to adequately brief an issue, either by failing to specifically argue and analyze one’s position or provide authorities and record citations, waives any error on appeal. See Fredonia State Bank, 881 S.W.2d at 283–84. Because Herrera failed to analyze her position or cite to the record in support of her position, we conclude she has waived point of error five due to inadequate briefing. We overrule point of error five.

Liability in Underlying Cause of Action

In her sixth point of error, Herrera contends that the trial court erred by granting summary judgment because Wembley failed to prove, as a matter of law, that it was not liable to Herrera for her accident. After reviewing the summary judgment evidence, we disagree.

Wembley’s summary judgment evidence shows that when Herrera fell, International Telecharge, Inc. (ITI), Herrera’s employer, was leasing the building from Wembley.⁴ The lease provided that ITI had sole possession and control of the building and sole responsibility for the maintenance and repair of the building. In his affidavit, William Beste, vice-president of Wembley at the time of the accident, testified that at the time of the accident, ITI had possession and control of the building where Herrera fell. Wembley did not occupy the building and had no control over, nor intent to control, the building. During the terms of the lease with ITI, Wembley did not perform any repairs or maintenance on the hallway where Herrera fell and it was not responsible for, nor did it arrange for, any building maintenance, cleaning, or waxing in the building.

Generally, a landlord who retains control over a part of the premises that the tenant is entitled to use owes a duty to exercise ordinary care. Stein v. Gill, 895 S.W.2d 501, 502 (Tex.App.—Fort Worth 1995, no writ); Montelongo v. Goodall, 788 S.W.2d 717, 719 (Tex.App.—Austin 1990, no writ). However, if the landlord transfers possession and control of the premises to the tenant, he owes no duty to the tenant to exercise ordinary care unless he fails to disclose hidden defects of which he had knowledge. Stein, 895 S.W.2d at 502–03; Montelongo, 788 S.W.2d at 718.

*6 Here, the evidence shows that Wembley transferred possession and control of the building to ITI, Herrera’s employer. Thus, Wembley did not owe a duty to Herrera unless Wembley failed to disclose a hidden defect that caused Herrera to slip and fall. See Stein, 895 S.W.2d at 503. Herrera did not allege, and the summary judgment evidence does not suggest, such a defect. Thus, we conclude the trial court properly determined Wembley met its summary judgment burden to show that it was entitled to judgment as a matter of law on Herrera’s claim in the underlying lawsuit. We overrule point of error six.

Accordingly, we affirm the trial court’s judgment.

	Footnotes
1		The Honorable Frances Maloney, Court of Appeals, Fifth District of Texas at Dallas, Justice, Retired, participated in the original submission of this case. The Honorable Kerry FitzGerald succeeded Justice Maloney. Justice FitzGerald has reviewed the record and briefs in this case.
2		Herrera also sued (1) Etheridge Building Service, Inc., (2) Rallye, Inc., (3) Mary Kay Cosmetics, Inc., (4) Albert H. Halff & Associates, Inc., (5) Naohisa Yamamoto, (6) Ameplaza, and (7) John Doe No. 1. Hartford Accident and Indemnity Company, the workers’ compensation carrier for Herrera’s employer, intervened and asserted subrogation claims for benefits paid to Herrera.
3		“Vantage Companies” is the trade name used by OVPI, Inc.
4		The parties to the lease were “Vantage Management Company, Inc. as agent for Wembley Investment Company, a Delaware Corporation and International Telecharge, Inc., a Delaware Corporation.”