Original Mandamus Proceeding
The underlying suit involved a restaurant, the relator, its owner and director. The relator alleged the director failed to deposit $5,700.00 in restaurant fund in the bank, and another $20,544.13 was missing. Also, the director entered into a joint venture with the real party in interest (RPI), with the director overseeing a casino instead of attending the restaurant. The relator also alleged the director and RPI misappropriated restaurant equipment. The relator filed suit against the RPI for theft, conversion, and civil conspiracy, and against the director for theft, conversion, fraud, breach of fiduciary duty, and civil conspiracy. The trial court granted the relator’s motion for summary judgment, and entered judgment of $44,234.57 in damages against the director and the RPI. The RPI filed a bill of review to set aside the judgment, contending her attorney failed to inform her of the lawsuit and judgment entered against her. The trial court granted the bill of review, and the relator sought mandamus. The appellate court noted that though the RPI argued the owner had engaged in extrinsic fraud that led her to believe the suit had been dismissed, the RPI never plead this defense in her bill of review.  Rather, the RPI’s failure to respond to the suit was found to be the result of negligent conduct of her attorney. The RPI failed to establish she was prevented from asserting her defense by the fraud, accident or wrongful act of the owner, and thus failed to establish a proper basis for relief through a bill of review. Thus, the trial court abused its discretion in granting the bill of review. Accordingly, the court conditionally granted the petition for writ of mandamus, ordering the the trial court to withdraw its order granting the bill of review.