Kurt G. Clarke v. Hunters Glen Community Association D/B/A Hunters Glen, Section III Community Association

Affirmed and Memorandum Opinion filed June 15, 2004 Affirmed and Memorandum Opinion filed June 15, 2004. In The Fourteenth Court of Appeals _______________ NO. 14-03-00971-CV _______________ KURT G. CLARKE, Appellant V. HUNTERS GLEN COMMUNITY ASSOCIATION D/B/A HUNTERS GLEN, SECTION III COMMUNITY ASSOCIATION, Appellee ___________________________________________________ On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 02‑CV‑124930 ___________________________________________________ M E M O R A N D U M   O P I N I O N Appellant, Kurt G. Clarke, appeals from the denial of his Bill of Review. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. Background Appellee, Hunters Glen Community Association (AThe Association@), sued appellant for failure to pay association dues. On February 25, 2002, the trial court granted The Association=s motion for summary judgment. On July 1, 2002, appellant filed a Bill of Review. Trial on the Bill of Review was set for June 17, 2003. Appellant filed a motion for continuance, but the trial court did not rule. Instead, the court below proceeded with the trial. Appellant did not appear. The Association presented evidence, and the trial court denied appellant=s petition for Bill of Review. Appellant filed a motion for new trial which the trial court denied. Discussion In his first three issues, appellant claims the trial court erred when it granted the initial summary judgment because (1) the trial court did not give him notice of its intent to enter judgment, (2) material issues of fact existed, and the judgment did not dispose of all the issues or parties, and (3) the trial court awarded attorney=s fees to The Association. However, this is an appeal from the denial of appellant=s Bill of Review, not an appeal from the grant of The Association=s summary judgment. A Bill of Review is an independent suit to set aside a prior judgment. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926B27 (Tex. 1999). At issue in a Bill of Review is whether a party, through no fault of his own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party. Id. at 927. A Bill of Review does not provide an opportunity to relitigate the merits of the prior suit. Cherry v. Altman, 872 S.W.2d 46, 47 (Tex. App.CFort Worth 1994, writ denied). Additionally, res judicata bars the relitigation of issues that have already been settled by final judgment. Id. Therefore, because appellant=s first three issues were not before the trial court in his Bill of Review, they are not properly before us on appeal. Appellant=s first three issues are overruled. In his fourth issue, appellant claims the trial court erred by failing to grant his motion for continuance. Appellant has failed to preserve error on this issue. To preserve error on a trial court=s denial of a motion for continuance, the movant must obtain a ruling from the trial court. Tex. R. App. P. 33.1(a)(2); Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, 656 (Tex. App.CHouston [1st Dist.] 1993, writ dism=d w.o.j.); see Robinson v. The Devereux Foundation, No. 14-01-00081-CV, 2002 WL 1315631, at *4 (Tex. App.CHouston [14th Dist.] June 6, 2002, pet. denied) (not designated for publication). Nothing in the record indicates the trial court explicitly or implicitly ruled on appellant=s motion.[1] See Southwest Country Enter., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 492B93 (Tex. App.CFort Worth 1999, pet. denied). Nor did appellant object to the trial court=s failure to rule on his motion. See Tex. R. App. P. 33.1(a)(2)(B). Accordingly, he has waived this issue. In his fourth issue, appellant also claims the trial court erred in denying his motion for new trial on his Bill of Review. A trial court has wide discretion on whether to grant a new trial, and this decision will not be disturbed on appeal absent a showing of a manifest abuse of discretion. Champion Int=l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988); Allied Rent-All, Inc. v. Int=l Rental Ins., 764 S.W.2d 11, 13 (Tex. App.CHouston [14th Dist.] 1988, no writ.). First, appellant claims he satisfied all the requirements for a defendant to be entitled to a new trial after a default judgment, which he claims was entered against him when the trial court denied his Bill of Review. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). However, the judgment against appellant on his Bill of Review was not a default judgment because it was entered against him, the petitioner, not the defendant. See Tex. R. Civ. P. 239 (noting default judgments are rendered against defendants who have failed to file an answer). Therefore, the Craddock requirements are inapplicable. Appellant argues the trial court should have granted his motion for new trial because he demonstrated that his failure to appear for trial was a result of his mistaken understanding that the trial would be reset based on his filing of a motion for continuance. However, mistake by a party or his attorney, not induced by the opposing party, is not a reason for granting a new trial. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Accordingly, the trial court did not abuse its discretion by denying appellant=s motion. See id. Appellant=s fourth issue is overruled. In a reply brief, appellant also claims the trial court erred by setting the Bill of Review for trial because the proceeding should have been automatically stayed when he filed for bankruptcy. When a debtor files a bankruptcy petition, all causes of action against the debtor are automatically stayed. 11 U.S.C. ' 362(a) (1993 & Supp. 2004). Appellant filed for bankruptcy the day after he filed the petition for Bill of Review. Appellant waived error by failing to raise it in his original brief. See Tex. R. App. P. 38.3; Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). However, even if appellant had not waived this issue, he was not entitled to an automatic stay. The automatic stay of the bankruptcy code applies only to actions Aagainst the debtor.@ 11 U.S.C. ' 362(a). It does not apply to a debtor=s offensive claims. Matter of U.S. Abatement Corp., 39 F.3d 563, 568 (5th Cir. 1994). Appellant brought the bill of review and was the party seeking relief. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). Therefore, the Bill of Review was not an action against him, and the automatic stay did not apply. See Matter of U.S. Abatement Corp., 39 F.3d at 568. Having overruled appellant=s issues, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed June 15, 2004. Panel consists of Justices Fowler, Edelman and Seymore. [1] Appellant did not set the motion for submission or oral hearing as required by the Fort Bend County Local Rules of Court. Fort Bend. (Tex.) Civ. Dist. Ct. Loc. R. 3.3.3, 3.3.4.