Background
Chance and Courtney Perry were divorced by final decree in May 2023 following binding arbitration. Chance initially appealed the divorce decree in July 2023 but voluntarily dismissed that appeal by nonsuit. In May 2024, more than a year after the divorce decree was entered, Chance filed a Bill of Review in trial court, claiming he was prevented from asserting rights to a greater share of the marital estate, denied his right to a jury trial, and wrongfully compelled to participate in arbitration that he alleged was unfair. In April 2025, Chance filed an amended Bill of Review raising substantially the same claims.
Courtney filed a Motion for Summary Judgment arguing that Chance’s claims were barred by waiver, res judicata, and statutory limitations because: (1) Chance and his attorney signed the Binding Arbitration Agreement; (2) Chance participated in arbitration without objection; (3) Chance had an adequate remedy through normal appeal, which he pursued but then dismissed; and (4) Chance’s claims were already adjudicated in his earlier appeal. The trial court granted summary judgment in Chance’s favor and he appealed.
The Court’s Holding
The Ninth Court of Appeals affirmed the trial court’s grant of summary judgment. The court held that Chance failed to establish any element of a bill of review claim. A bill of review petitioner must ordinarily prove: (1) a meritorious defense to the underlying cause of action; (2) that he was prevented from making it by fraud, accident, wrongful act of the opposing party, or official mistake; and (3) that he was not at fault or negligent in his failure to raise the issue initially.
The court found that Chance could not satisfy these requirements. First, Chance waived his objections to arbitration and jury trial by signing the Binding Arbitration Agreement with his attorney’s participation. Second, Chance had an adequate remedy through normal appeal, which he pursued but voluntarily dismissed through nonsuit. Third, the record showed no fraud, wrongful act, or official mistake by Courtney—Chance’s failure to challenge the decree was entirely his own choice. Fourth, the court distinguished Costanzo v. Texas Advantage Community Bank (which reversed a summary judgment when the amended petition added new legal claims not addressed in the motion) because Chance’s amended petition asserted no new causes of action, only the same bill of review claim under different factual allegations. Fifth, Chance’s claims were barred by res judicata since they were already adjudicated in his earlier appeal.
Key Takeaways
- A party who voluntarily dismisses a timely appeal cannot later obtain a bill of review on the same grounds, as the party had an adequate remedy at law that was deliberately abandoned.
- Waiver of arbitration objections is established when a party and their counsel sign a binding arbitration agreement and participate in arbitration without objection.
- An amended petition does not moot a pending summary judgment motion unless it asserts new legal theories or causes of action; amendments that restate existing claims under different facts are subject to the pending motion.
- Bills of review are equitable remedies granted sparingly due to the paramount importance of finality in judgments, and require clear proof of all elements without negligence by the petitioner.
Why It Matters
This decision reinforces that bills of review are a remedy of last resort and cannot be used to circumvent normal appellate procedures. Parties who have an adequate remedy through traditional appeal and choose to dismiss that appeal—whether voluntarily or otherwise—will be barred from seeking post-judgment relief through a bill of review. The opinion clarifies that procedural waivers (such as agreeing to arbitration) combined with participation in the agreed procedure establish binding obligations that cannot later be challenged through equitable remedies.
For practitioners, the decision emphasizes the importance of perfecting appeals and pursuing all available remedies within the applicable deadlines. Additionally, the court’s distinction between amended petitions that add new claims versus those that merely restate existing claims has implications for how parties amend pleadings in response to pending motions—amendments that do not introduce new legal theories do not reset the procedural clock on dispositive motions.