Chance M. Perry v. Courtney L. Perry

Summary

The Ninth Court of Appeals of Texas affirmed a summary judgment denying Chance M. Perry’s petition for bill of review challenging a divorce decree entered following binding arbitration. The court held that Perry waived his complaints by agreeing to arbitration, participating with counsel, and voluntarily dismissing his prior appeal, and that his amended petition did not present new claims requiring separate summary-judgment analysis. The court distinguished Costanzo v. Texas Advantage Community Bank N.A. and affirmed the trial court’s judgment.

Holdings

1. The amended petition did not render the summary-judgment motion moot because it did not assert new causes of action or materially different claims; both the original and amended petitions sought to set aside the divorce decree on the same bill-of-review grounds.
2. Chance was not entitled to a bill of review because he had an adequate remedy by ordinary appeal, pursued that remedy, and voluntarily dismissed the appeal; his failure to continue challenging the decree was attributable to his own choice.
3. Courtney conclusively established waiver of Chance's complaints about the arbitration and jury trial because Chance and his counsel signed a binding arbitration agreement, participated in the arbitration without objection, and had opportunities to object or seek to vacate the award.

Questions Presented

1. Whether the trial court properly granted traditional summary judgment against Chance Perry's petition for bill of review.
2. Whether Chance Perry's amended petition rendered Courtney Perry's summary-judgment motion moot because the amended petition allegedly asserted new claims not addressed by the motion.
3. Whether Chance Perry's voluntary dismissal of his timely appeal and his agreement to binding arbitration established waiver and prevented him from obtaining a bill of review.

Disposition

affirmed