Chance M. Perry v. Courtney L. Perry

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-25-00333-CV
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CHANCE M. PERRY, Appellant

V.

COURTNEY L. PERRY, Appellee

__________________________________________________________________

On Appeal from the County Court at Law No. 2
Orange County, Texas
Trial Cause No. 200480AD
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MEMORANDUM OPINION

In this appeal, Chance M. Perry, (“Appellant,” “Petitioner,” or “Chance”),

seeks appellate review of the trial court’s ruling granting his ex-wife, Courtney L.

Perry, (“Appellee” or “Courtney”), a Summary Judgment denying his Petition for

Bill of Review. On appeal, Chance argues the trial court erred by granting

Courtney’s Motion for Summary Judgment (“MSJ”) because he filed an amended

Bill of Review that rendered the MSJ on the previously filed Petition for Bill of

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Review moot. Chance argues the trial court erred in granting the MSJ when that

motion did not address the new claims that he alleged in his amended petition for

Bill of Review. For the reasons explained below, we affirm the trial court’s

judgment.

Background Information

This is the fourth time the parties have been before this Court with respect to

proceedings relating to their divorce. Chance and Courtney were divorced by a Final

Decree of Divorce in May of 2023. In Chance’s first matter in this Court, which he

filed on July 10, 2023, appellate cause number 09-23-00227-CV, Chance filed an

appeal of the Final Decree of Divorce, which was rendered by the County Court at

Law No. 2 of Orange County, Texas, in Cause No. E200480-D, styled “In the Matter

of the Marriage of Courtney L. Perry and Chance M. Perry and In the Interest of

K.L.P., S.K.P., and L.L.P., Children.” According to the clerk’s record in that appeal,

the Final Decree of Divorce was entered after the parties participated in a binding

arbitration. This Court dismissed that appeal because Chance filed a Notice of Non-

Suit on his appeal. Perry v. Perry, No. 09-23-00227-CV, 2024 Tex. App. LEXIS

2533 (Tex. App.—Beaumont, April 11, 2024, no pet.) (mem. op.).

Next, Chance filed a Petition for Writ of Mandamus in 2023, appellate cause

number 09-23-00279-CV, seeking mandamus relief to compel the trial court to set

aside its order expunging a notice of lis pendens, to prohibit the trial court from

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ordering a future sale of property awarded to Real Party in Interest Courtney Perry

in the divorce decree, to enjoin Courtney and her attorneys and agents from any

activity that would result in the sale of property awarded to her in the divorce decree,

and to compel any title company that receives sale proceeds to deposit the sale

proceeds into the registry of the trial court. We denied the petition for mandamus

relief. In re Perry, No. 09-23-00279-CV, 2023 Tex. App. LEXIS 7475 (Tex. App.—

Beaumont, Sept. 28, 2023, no pet.) (mem. op.).

Chance also filed an appeal, appellate cause number 09-24-00342-CV,

pertaining to the trial court’s Order Clarifying Final Decree of Divorce, Order on

Motion for Appointment of Receiver, and Order for Turnover Relief in favor of

Chance’s ex-wife, Courtney L. Perry. In that appeal, we affirmed the trial court’s

orders. Perry v. Perry, No. 09-24-00342-CV, 2025 Tex. App. LEXIS 9516 (Tex.

App.— Beaumont, Dec. 11, 2025, no pet.) (mem. op.).

Petition for Bill of Review

On May 8, 2024, over a year after the Final Decree of Divorce was rendered,

and after Chance had dismissed his appeal of the Final Decree of Divorce, Chance

filed an Original Petition for Bill of Review in trial court Cause No. 200480AD, in

the County Court at Law No. 2, Orange County, Texas, seeking to “set aside” the

Final Decree of Divorce in trial cause No. E200480-D, styled “In the Matter of the

Marriage of Chance M. Perry and Courtney L. Perry and In the Interest of K.L.P.,

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S.K P., and L.L.P., Children.” Chance alleged in his Petition for Bill of Review that

he was prevented from asserting rights to a greater share of the parties’ marital estate,

he was denied his right to a jury trial, and he was wrongfully compelled to participate

in arbitration where the arbitration was unfair to Petitioner. He alleged he did not

discover the issues “at bar until more than thirty days after rendition of the

judgment[]” and the invalidity of the judgment did not appear on the face of the

record.

Courtney filed an Original Answer to the Petition for Bill of Review and

asserted a general denial, as well as affirmative defenses of waiver and res judicata,

and sought attorney’s fees, costs, expenses, and interest. Courtney alleged that “[t]he

parties and their trial attorneys [a]greed to attend arbitration in two separate

documents as is seen in the attached Exhibits ‘A’ and ‘B.’” Exhibit A attached to the

answer, is an executed copy of a Binding Arbitration Agreement signed by Chance

and Courtney, as well as their attorneys of record in the divorce proceeding. Exhibit

B attached to the answer is a copy of the trial court’s Order of Referral to Binding

Arbitration, signed by the trial court and by the attorneys for the parties. Courtney

alleges in her answer that Chance and his attorney, Judson Daws, subsequently

participated in arbitration without objection and that Chance therefore waived his

objection to participating in the arbitration. Courtney also contends that although

Petitioner alleges that he did not discover the issues at bar until more than thirty days

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after rendition of the judgment, the record establishes that Petitioner filed an appeal

under Cause Number 09-23-00227-CV within thirty days after rendition of the

judgment asserting the same claims contained in Petitioner’s Original Petition for

Bill of Review, and that appeal was dismissed on April 11, 2024, so “the claims

contained in the Petition for Bill of Review have already been adjudicated and

further adjudication is barred by statute.”

Motion for Summary Judgment, Response, and Ruling

On March 11, 2025, Courtney filed a Motion for Summary Judgment asking

that the trial court grant a summary judgment in favor of Courtney on the Bill of

Review because the claims asserted in the Bill of Review are frivolous and barred

by the affirmative defenses of waiver and statutory bar and the doctrine of res

judicata, and there is no genuine issue of material fact. Courtney alleged Chance

agreed to participate in and be bound by the arbitration in the divorce proceeding “as

evidenced by his signature to the Binding Arbitration Agreement.” Courtney argued

that Chance waived his objection to participating in arbitration and to a jury trial.

Additionally, Courtney argued Chance had an adequate remedy by a normal appeal,

which he pursued, and then later that appeal was dismissed. Courtney also argued

that Chance is barred “by statute, res judicata, from bringing a claim which was

already adjudicated.” Therefore, Courtney argued that as a matter of law, a summary

judgment should be granted in favor of Courtney because there is no genuine issue

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of material fact as to any element of Petitioner’s claim as asserted in the Bill of

Review, and the claims are barred by her affirmative defenses. Several exhibits were

attached to the MSJ including the Order of Referral to Binding Arbitration, the

Binding Arbitration Agreement, and this Court’s Memorandum Opinion, appellate

cause number 09-23-00227-CV, dismissing Chance’s appeal of the Final Decree of

Divorce. The MSJ was set for a hearing on April 21, 2025.

On April 14, 2025, Chance filed what is styled as “Chance M. Perry’s 1st

Amended Petition for Bill of Review.” In the amended pleading, Chance still seeks

to set aside the divorce decree as he did in his original Petition for Bill of Review.

As he alleged in his original Petition for Bill of Review, he claims he was denied a

right to a trial by jury and forced to participate in an involuntary arbitration that he

contends “ultimately resulted in an unjust and illegal judgment as found in the Final

Decree of Divorce . . . on May 2, 2023.”

On April 14, 2025, Chance also filed a Response to Respondent’s Motion for

Traditional Motion for Summary Judgment as to the Bill of Review. In it, Chance

argues the declaration he attached and the transcripts from hearings in the divorce

proceeding show “genuine issues of material fact exist and that Non-Movant has a

viable bill of review[,]” and he argues that the MSJ became “moot” because he filed

an amended petition for bill of review alleging “new facts and grounds for the

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granting of a bill of review,” which he claims were not addressed in the summary

judgment motion.

The trial court held a hearing on the MSJ. On June 12, 2025, the trial court

signed an Order Granting Motion for Summary Judgment as to the Bill of Review.

Chance filed a notice of appeal.

Applicable Law

We review grants of summary judgment de novo. Cantey Hanger, LLP v.

Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We take as true all evidence favorable to

the non-movant, indulge every reasonable inference in favor of the non-movant, and

resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). A party moving for a traditional summary

judgment meets its burden by proving that there is no genuine issue of material fact

and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).

“A motion must stand or fall on the grounds expressly presented in the

motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.

1993). “Likewise, issues a non-movant contends avoid the movant’s entitlement

to summary judgment must be expressly presented by written answer to the motion

or by other written response to the motion and are not expressly presented by mere

reference to summary judgment evidence.” Id. Since this was a summary judgment

proceeding in the trial court, respondent had to negate as a matter of law one of the

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necessary elements of a bill of review cause of action. McRoberts v. Ryals, 863

S.W.2d 450, 453 (Tex. 1993).

A petitioner in a bill of review proceeding must ordinarily plead and prove (1)

a meritorious defense to the underlying cause of action, (2) which the plaintiff was

prevented from making by the fraud, accident or wrongful act of the opposing party

or official mistake, (3) unmixed with any fault or negligence on their own part. See

Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) (citations omitted).

A bill of review is an equitable proceeding filed by a party seeking to set aside

a judgment that can no longer be challenged by a motion for new trial or appeal.

WWLC Inv., L.P. v. Miraki, 624 S.W.3d 796, 799 (Tex. 2021) (per curiam); King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Under certain

circumstances, a bill of review petitioner may be excused from proving one or more

of these requirements. For example, when a judgment is rendered without proper

notice, the meritorious claim or defense requirement is excused. Lopez v. Lopez, 757

S.W.2d 721, 723 (Tex. 1988). The bill of review petitioner, however, still must show

his failure to file a motion for new trial or appeal was not due to any fault or

negligence on his part. See Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240,

246 (Tex. 1974).

Courts do not readily grant bills of review “[b]ecause it is fundamentally

important in the administration of justice that some finality be accorded to

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judgments.” Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015) (quoting

Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)). We review the denial of

a bill of review under an abuse of discretion standard. Gonzalez v. Tapia, 287 S.W.3d

805, 807 (Tex. App.—Corpus Christi-Edinburg 2009, pet. denied). When reviewing

the denial of a bill of review, “we indulge every presumption in favor of the trial

court’s ruling[,] and [we] will not disturb that ruling unless the trial court abused its

discretion.” Garza v. Att’y Gen., 166 S.W.3d 799, 808 (Tex. App.—Corpus Christi-

Edinburg 2005, no pet.). An abuse of discretion occurs when a trial court acts in an

unreasonable or arbitrary manner, or without reference to guiding rules and

principles. Id. We review the trial court’s decision de novo when the inquiry on the

bill of review concerns questions of law. Id.

Analysis

Here, Chance made no argument in the trial court, nor does he argue on appeal

that there was a lack of notice, and Chance provided nothing in response to the MSJ

to show that his failure to pursue his appeal was not otherwise due to his own

voluntary dismissal of the appeal. The record shows that Chance filed a timely

appeal from the Final Decree of Divorce, and he could have raised any of his alleged

complaints in that appeal, but instead he chose to file a nonsuit of his appeal, and the

appeal was then dismissed pursuant to his request. There is no allegation in the

original Petition for Bill of Review, in the Amended Petition for Bill of Review, or

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the Response to the Motion for Summary Judgment that the other party engaged in

fraud or that Chance was prevented from making his defense or complaints about

the arbitration or the Final Decree because of any wrongful act of the opposing party

or because of an alleged official mistake. Additionally, Chance failed to explain how

or why the divorce unfairly distributed the marital estate.

The record shows Chance and his attorney, as well as Courtney and her

attorney, each signed a Binding Arbitration Agreement. In the clerk’s record filed in

this Court for the appeal of the Final Decree of Divorce, it shows that Chance filed

a notice of appeal from the Final Decree of Divorce. In that trial court proceeding,

Chance’s attorney argued in his response to Courtney’s Motion for New Trial in the

Divorce that a new trial should be denied because the case had been resolved via

“binding arbitration” and neither party filed a request to vacate the award within the

time limit required by law, and the Arbitration Award was converted to a Final

Decree.

Chance was represented by legal counsel when the case was referred to

arbitration, throughout the arbitration process, and when the trial court rendered the

Final Decree of Divorce, which was almost nine months after referral to arbitration.

There was time and an opportunity for Chance and his legal counsel to raise or file

an objection to the Referral to Arbitration in the trial court, or to seek to set aside the

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Arbitration Award. Chance could have pursued his complaints in his appeal from

the Divorce but chose not to do so, and that appeal was dismissed.

In his Brief on Appeal, Chance does not specify or explain how he created a

genuine issue of material fact as to each of the specific elements of his Bill of Review

claim. Rather, he contends that his “case is procedurally identical” to the case this

Court ruled on in Costanzo v. Texas Advantage Community Bank N.A., No. 09-21-

00345-CV, 2022 Tex. App. LEXIS 7249 (Tex. App.—Beaumont Sept. 29, 2022, no

pet). (mem. op.). We find Costanzo is distinguishable from the facts in this case.

In Costanzo, Costanzo’s Third Amended Petition was the live petition at the

time the defendant bank filed its motion for summary judgment, and therein

Constanzo stated claims against the defendant for negligence, gross negligence, and

fraud by nondisclosure. The defendant filed its motion for summary judgment,

arguing that Costanzo had no standing to sue in her individual capacity and that she

could only sue as executor of her stepmother’s estate. The defendant also argued that

it had no duty to report suspected elder abuse, the defendant was entitled to and

obligated to rely on a valid power of attorney when money was withdrawn from the

decedent’s account, and the UCC preempts Costanzo’s common-law claims. At a

hearing in December 2019, Costanzo asked the trial court for leave to amend her

pleadings, which the trial court granted. On January 10, 2020, Costanzo then filed

her Fourth Amended Petition. The Fourth Amended Petition was the live petition at

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the hearing on the summary judgment and at the time the trial court granted the

motion for summary judgment. In the Fourth Amended Petition, Costanzo stated

claims for breach of fiduciary duty, fraud by nondisclosure, promissory estoppel,

quantum meruit, unjust enrichment, breach of contract, and conversion of instrument

under section 3.420 of the Texas Business & Commerce Code. Id. at **3-5. This

Court concluded that because in her Fourth Amended Petition, Costanzo asserted

new claims for conversion of an instrument under the UCC, breach of contract,

promissory estoppel, and quantum meruit and unjust enrichment, those claims were

not addressed in the motion for summary judgment, and we sustained Appellant’s

second and third issues and remanded the case to the trial court. Id. at **16-17.

Here, unlike the facts in Costanzo, Chance did not file a pleading with any

new causes of action or new claims. The original Petition for Bill of Review and the

Amended Petition for Bill of Review seek to set aside the Final Decree of Divorce

because he claims the arbitration award that preceded the entry of the Final Decree

of Divorce was involuntary and unfair. Chance still had to plead and prove the same

elements for his Bill of Review claim under both pleadings. Courtney’s defense to

the Bill of Review proceeding was that Chance was not entitled to a Bill of Review

because the claim asserted in the Bill of Review is frivolous and barred by the

affirmative defenses of waiver and statutory bar and the doctrine of res judicata, and

there is no genuine issue of material fact. Courtney conclusively established that

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Chance waived his complaints about no jury trial, the participation in the arbitration,

and he agreed to be bound by the arbitration in the divorce proceeding “as evidenced

by his signature to the Binding Arbitration Agreement.” Additionally, Chance had

an adequate remedy by a normal appeal, which he pursued, and then later that appeal

was dismissed as requested by Chance. We conclude that Courtney conclusively

established that Chance’s failure to challenge the divorce decree and arbitration, or

to continue with his appeal of the Divorce Decree was due to his own choice, and

Courtney conclusively established her affirmative defense of waiver and that Chance

was not entitled to a bill of review. See McIntyre v. Wilson, 50 S.W.3d 674, 679

(Tex. App.—Dallas 2001, pet. denied) (subsequent bill of review denied when party

had previously made a timely but unsuccessful appeal); In re A.G., No. 07-19-00161-

CV, 2020 Tex. App. LEXIS 4270, at ** 6-7, (Tex. App.—Amarillo June 8, 2020,

pet. denied) (mem. op.) (bill of review was not available when party did not avail

herself to an appeal or other remedy); Shaw v. Shaw, No. 09-17-00112-CV, 2018

Tex. App. LEXIS 926, at **8-9 (Tex. App.—Beaumont Feb. 1, 2018, no pet.) (mem.

op.) (bill of review not available when party did not provide proof of meritorious

defense unmixed with her negligence); McCurdy v. Oeftering, No. 05-14-01353-CV,

2016 Tex. App. LEXIS 1784, at *3 (Tex. App.—Dallas Feb. 19, 2016, no pet.)

(mem. op.) (bill of review not available when party did not utilize all available

remedies including appealing denial of a motion to reinstate or filing a motion for

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new trial); and Bergenholtz v. Eskenazi, No. 05-14-00609-CV, 2015 Tex. App.

LEXIS 7680, at **8-9 (Tex. App.—Dallas July 23, 2015, pet. denied) (mem. op.)

(denial of subsequently filed bill of review upheld after party had previously

dismissed an appeal in the underlying divorce).

We affirm the trial court’s grant of the summary judgment and denial of the

Petition for Review, and we overrule all of Appellant’s issues.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on June 3, 2026
Opinion Delivered June 18, 2026

Before Golemon, C.J., Johnson and Wright, JJ.

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