X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Nathaniel Ballard filed suit in small claims court against Floyd Thompson for continuing to drive heavy equipment against Ballard’s property despite Ballard’s protests. The small claims court rendered judgment for Ballard, awarding him $5,000, plus costs. The judgment also said, however, that upon timely, successful completion and inspection of the sewer line on Ballard’s property that Thompson damaged with the heavy equipment, the $5,000 judgment would be dismissed and Ballard would take nothing; if not, the judgment would be due in full. The small claims court clerk never sent a copy of this judgment to Thompson, and Thompson never fixed the sewage line and an inspector was never called. Two months after the small claims court judgment, the Rusk County justice court entered another judgment under the same case number. The default judgment said that Thompson, though duly served, had failed to appear and that Ballard’s claim was for liquidated damages. Thompson did not receive notice of this second proceeding, and he did not receive a copy of the judgment until a year later when he tried to sell his property.Thompson filed a petition for a bill of review, seeking to set aside both judgments. The justice court denied relief. The county court-at-law also denied relief as to the first judgment in small claims court, but granted relief on the second judgment in the justice court. The trial court ruled the second judgment void. On appeal, Thompson contends the trial court erred in not granting a bill of review of both judgments. Thompson contends that since he did not receive a copy of the first judgment, he never had the opportunity to appeal the case. He complains that the second judgment was rendered without notice or hearing and that the court failed to send him a copy of the judgment. Therefore, he was denied the opportunity to request a new trial or to appeal because of the misconduct of the court. HOLDING:Affirmed. Only final judgments are subject to attack by a bill of review, the court points out, and only one final judgment may be entered in a bill of review action. Where a party has participated in trial but been prevented from filing for a new trial or perfecting an appeal, the party seeking a bill of review must prove: 1. a failure to file a motion for new trial or a failure to advance an appeal; 2. caused by the fraud, accident, or wrongful act of the opposing party or by an official mistake; 3. unmixed with any fault or negligence on the petitioner’s part; and 4. a meritorious ground of appeal. The trial court here did not make a determination on whether Thompson had a meritorious ground of appeal. Thompson complains of numerous procedural irregularities in the small claims court, but he does not deny that he was present at that action and that he at least heard the rendition of judgment against him. Thompson’s claim that he had a meritorious defense to that action — simply that he didn’t damage Ballard’s property — is unsupported, as is his claim that his ability to present that defense was thwarted by failures of the small claims court. Instead, Thompson is merely trying to relitigate the underlying issue in the underlying suit. The court also confirms that the trial court was correct in finding the second judgment void, since it was held without service of process or any other notice to Thompson. OPINION:Bass, J.; Worthen, C.J., DeVasto and Bass, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.