
    Billy Ray BARNES, Appellant v. Marquita DEADRICK, Appellee
    NO. 01-14-00271-CV
    Court of Appeals of Texas, Houston (1st Dist.).
    Opinion issued March 17, 2015
    Rehearing En Banc Overruled April 28, 2015
    
      Susie Chmielowiec, Houston, TX, for Appellant.
    . Tristan H. Longino, Skillern Law PLLC, Houston, TX, for Appellee.
    Panel consists of Justices Keyes, Higley, and Brown.
   OPINION

Laura Carter Higley, Justice

Billy -Ray Barnes appeals the trial court’s denial of his petition for bill of review to set aside a default judgment rendered in a suit affecting the parent-child relationship. In one issue, Barnes asserts that the trial court abused its discretion'by denying his petition based on appellee Marquita Deadrick’s affirmative defense of res judicata.

We reverse and remand.'

Background

Billy Ray Barnes is the father of M.B;, a minor child born oh February 8, 1997. Marquita Deadriqk is M.B.’s half-sister. In 2007, Deadrick filed a suit affecting the parent-child relationship (SAPCR) with respect to M.B., following the death of M.B.’s mother. ,.

■ On April 9, 2009, the trial court signed an order in the SAPCR proceeding. The order recited that Deadrick had appeared at- trial with her attorney on March 23, 2009. The order stated that, although he had been “duly and. properly cited, [Barnes] did not appear [at trial] arid wholly made default.”

The trial court appointed Déadrick as M.B.’s sole' managing conservator and appointed Barnes as the child’s possessory conservator. The order gave Deadrick “a superior right to the child at all-times” and provided that Barnes would have supervised visitation with M.B. It also required Barnes to pay $514.55 in monthly child support to Deadrick.

Although not part of the appellate record, it is not in dispute that Barnes filed a bill of review vnith regard to the SAPCR order. In the bill of review proceeding, the trial court’s associate judge made a docket sheet entry on September 10, 2010. The associate judge noted that, although Deadrick had appeared with counsel on that date, neither Barnes nor his counsel had appeared. Following that notation, the associate judge wrote on the docket sheet, “Bill of Review denied.” No written order was signed memorializing the docket sheet entry. Instead, on February 15, 2011, the presiding judge of the trial court signed an “Order for Dismissal for Want of Prosecution.” The order stated, “All counsel of record in the above mentioned case were notified by this court that this matter was set for final trial on the merits on 2-14-11.” The order indicated that “[n]either counsel appeared.” The order concluded, “Accordingly, it is ordered that the above styled cause is dismissed for want of prosecution.”

Barnes initiated a second bill-of-review proceeding on January 31, 2013, seeking to set aside the April 9, 2009 default order in the SAPCR proceeding. It is this second-filed bill-of-review action that is the subject of the instant appeal.

In his sworn bill-of-review petition, Barnes averred that he had been “prevented by [Deadrick] from asserting his parental rights to the child” in the 2009 SAPCR proceeding because he “was served via substitute service at an incorrect address and thus never received notice of the pending action.” He claimed that his “failure to assert the claim was not a result of any negligence or fault of [his].” Barnes asserted that there was “no legal remedy now available to avoid the effect of the order.” Barnes stated, “Despite the exercise of due diligence, [he] did not discover [Deadrick’s] fraud until more than thirty days after rendition of the judgment.”

Deadrick answered the petition, asserting the affirmative defense of res judicata. Deadrick claimed as follows: (1) there was a “prior final judgment by the [trial] court” in Barnes’s “previously filed bill of review”; ■ (2) both Barnes and Deadrick were parties to the earlier filed bill-of-review proceeding; and (3) the .second-filed petition for bill of review “is based on the claims that were raised or could have been raised in the first action.”

The trial court conducted a hearing on December 2, 2013. At the hearing, the trial court first heard, and overruled, Deadrick’s special exceptions to Barnes’s bill-of-review petition. The trial court then immediately stated, without prompting from Deadrick’s counsel, that it believed Deadrick’s -affirmative defense of res judicata “may have some merit.” The court then initiated a dialogue with counsel regarding the defense.

In this discussion, Deadrick asserted that Barnes’s first bill-of-review petition had been denied on September 10, 2010 by the trial court’s associate judge. Dead-rick’s attorney stated that he and Deadrick had appeared at that September 10, 2010 hearing, but Barnes had not appeared at that hearing. Deadrick’s counsel stated that the associate judge had denied Barnes’s first bill-of-review petition “for failure to appear” at hearing. Deadrick’s attorney informed the trial court that the associate judge had noted her denial of the first bill-of-réview petition on the docket sheet in that proceeding.

Deadrick’s' attorney offered a copy of the docket sheet from the first bill-of-review proceeding. The docket sheet contained a notation, initialed by the associate judge, stating that neither Barnes nor his counsel had appeared at the September 10, 2010 hearing and indicating that the first bill-of-review petition had been denied.

Barnes’s attorney responded that she did not know what had happened at the September 10, 2010 hearing because'she was not involved with the case at that time. She stated that, although she “did not know what to make of the bench notes [that is, the docket sheet],” she ‘ had learned that the first bill-of-review action had been dismissed for want of prosecution in a signed order by the presiding judge of the trial court in 2011.

At the end of the December 2, 2013 hearing in the instant action, the trial court agreed with Deadrick that the associate judge’s 2010 denial of the first bill of review, as noted in the docket sheet, was res judicata of the second bill of review action-. The court stated that the bill-of-review claim had been “ruled on more than three years ago. It was denied at that time, and res judicata applies.” The trial court signed an order denying the second bill-of-review petition on January 9, 2014.

Barnes filed a motion for new trial, challenging the trial court’s denial of his second bill-of-review petition. He pointed out that the associate judge’s 2010 denial of first bill-of-review petition, as indicated in the docket sheet, had “never [been] reduced to a written” order. Rather, the only signed, final order from the first proceeding had been the February 2011 order signed by the presiding judge, dismissing the first proceeding for want of prosecution. In support of his motion for new trial, Barnes offered a copy of the February 15, 2011 order, which dismissed the first bill-of-review action for want of prosecution. ...

Deadrick responded to the motion. Among her assertions, Deadrick averred that Barnes’s second bill-of-review petition had been appropriately denied based on the doctrine of res judicata. She offered the docket sheet from first bill-of-review proceeding, pointing out that, according to the associate judge’s notation, Barnes’s first bill-of-review petition had been denied on September 10,2010.

Deadrick further asserted that it was procedurally improper for Barnes to challenge the trial court’s denial with á motion for new trial She claimed that Barnes’s only post-judgment remedy was to file an appeal.

Deadrick also sought sanctions against Barnes. She asserted that Barnes’s motion for new trial had been filed for “an improper purpose,” including “to harass or to cause unnecessary’ delay or needless increase in cost of litigation.”

Following a hearing, the trial court denied Barnes’s motion for new trial. In its order, the trial court found “Barnes’s claim is barred by res judicata”, and his motion for new trial was “procedurally improper.” The trial court also found that Barnes had filed the motion for new trial for “an improper purpose” and sanctioned him $2,700, representing Deadriek’s “reasonable attorney’s fees.”

This appeal 'followed.' In one issue, Barnes asserts that the trial court abused its discretion when it denied his second petition for bill of review based on Dead-rick’s affirmative defense of res judicata. Specifically, Barnes claims that the associate judge’s notation on the docket sheet, indicating that she had denied Barnes’ first bill-of-review petition on 'September 10, 2010, could not serve as a basis for res judicata when' the presiding judge later signed an order dismissing the action for want of prosecution.

Bill of Review

A. Standard of Review

In reviewing the granting or denial of a bill of review, every presumption is indulged in favor of the court’s ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of discretion. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The trial court may be reversed for abusing its discretion only if it has acted in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. Id. at 293.

B. Res Judicata

The doctrine of res judicata applies to bill-of-review proceedings. See Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex.1980); Holloway v. Starnes, 840 S.W.2d 14, 19 (Tex.App.-Dallas 1992, writ denied); see also Alexander v. Alexander, No. 03-12-00688-CV, 2014 WL 2211355, at *2 (Tex.App.-Austin May 23, 2014, no pet.) (mem.op.) (applying res judicata to second bill of review in divorce proceeding). To establish res judicata, the defendant must demonstrate “(1) a prior final judgment on the merits by a court Of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996).

In this case, the inquiry is whether there was a “prior final judgment on the merits.” Deadrick asserts that she established this element by showing that the associate judge denied Barnes’s first bill-of-review petition on September 10, 2010, as indicated by a hand-written notation on the docket sheet.

A docket-sheet entry ordinarily forms no part of the record that may be considered; rather, it is'a memorandum made for the trial court and clerk’s convenience. In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex.App.-Houston [1st Dist.] 2006) (orig. proceeding). Docket-sheet entries are inherently unreliable because they lack the formality of orders and judgments. Id. (citing First Nat’l Bank ofGiddings, Tex. v. Birnbaum, 826 S.W.2d 189, 191 (Tex.App.-Austin 1992, no writ)). Perhaps due to this unreliability, a docket-sheet entry is generally considered insufficient to constitute a judgment or decree of the court. Id. (citing Formby’s KOA v. BHP Wdter Supply Corp., 730 S.W.2d 428, 430 (Tex.App.-Dallas 1987, no whit)). Significant to this case, a docket-sheet entry cannot contradict, overrule, or take the place of a written order or judgment. Kalyanaram v. Burch, 225 S.W.3d 291, 303 (Tex.App.-El Paso 2006, no pet); Bill Heard Chevrolet, 209 S.W.3d at 315; see also Garza v. Tex. Alcoholic Beverage Comm’n, 89 S.W.3d 1, 7 (Tex.2002).

Here, on February 15, 2011, the presiding judge signed a written order dismissing Barnes’s first bill-of-review suit for want of prosecution. That ruling prevails over the docket-sheet notation made by the associate judge denying the bill of review petition. See Kalyanaram, 225 S.W.3d at 303; Bill Heard Chevrolet, 209 S.W.3d at 315; see also Garza, 89 S.W.3d at 7.

Although the presiding judge’s order dismissing the action for want of prosecution does not state whether the suit was dismissed with or without prejudice, we presume that the dismissal was without prejudice. See In re G.H.D., No. 01-05-00228-CV, 2005. WL 2671031, at *3 (Tex.App.-Houston [1st Dist.] Oct. 20, 2005, no pet.) (mem.op.); see also Christensen v. Chase Bank U.S.A., N.A, 304 S.W.3d 548, 554 (Tex.App.-Dallas 2009, pet. denied) (discussing general rule that dismissal for want of prosecution is without prejudice to refiling). A dismissal for want of prosecution without prejudice to 'its refiling is not an adjudication on the merits. See Massey v. Columbus State Bank, 35 S.W.3d 697, 700 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); In re Hughes, 770 S.W.2d 635, 637 (Tex.App.-Houston [1st Dist.] 1989, no writ). Rather, it places the parties in the position they were in prior to filing the action “just as if the suit had never been brought.” Hughes, 770 S.W.2d at 637. Thus, an order dismissing an action for want of prosecution without prejudice, such as the one in this case, does not serve as a final judgment on the merits for purposes of res judicata. See Carter v. Charles, 853 S.W.2d 667, 672 (Tex.App.-Houston [14th Dist.] 1993, no writ) (holding that dismissal of earlier action without prejudice was not res judicata as to later filed suit);, see also Christensen,304 S.W.3d at 554. Because Deadrick did, not show that there was a final judgment on the merits with respect to Barnes’s first bill-of-review action, the trial court had no discretion to deny the instant bill-of-review petition based on the affirmative defense of res judicata.

C. Alternate Theory to Affirm

Deadrick intimates that, even if the trial court did not properly deny Barnes’s petition based on the doctrine of res judicata, denial was nonetheless appropriate. Deadrick points out that the trial court’s order denying the petition does not. specify the reason for the denial, and Barnes did not request findings of fact and conclusions of law. Deadrick relies on the legal precept that, when the trial court does not make separate findings of fact and conclusions of law, we imply that the trial court made all necessary findings, and we will uphold the trial court’s decision on any legal theory supported by the evidence. See Mauldin v. Clements, 428 S.W.3d 247, 262 (Tex.App.-Houston [1st Dist.] 2014, no pet.).

Deadrick asserts that the trial court’s denial of Barnes’s bill-of-review petition may be upheld because Barnes did not offer proof at the December 2, 2013 hearing to show each element of his bill-of-review claim. A bill-of-review plaintiff 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 his own part. Caldwell v. Barnes (Caldwell II), 154 S.W.3d 93, 96 (Tex.2004) (citing Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex.1979)). Procedurally, a bill of review petitioner must factually allege with particularity that the preceding judgment was a result of fraud, accident, or a wrongful act of the opposing party or official mistake unmixed with his own negligence. Baker, 582 S.W.2d at 408. Then; at a pretrial hearing,.the petitioner must set forth prima facie proof of a meritorious claim or defense to the underlying cause of action. Id.'

The Supreme Court of Texas, however, has made clear that allegations of non-service of process — as advanced by Barnes in this case — reduce a bill-of-review plaintiffs burden:

Bill of review plaintiffs claiming non-service ... are relieved of two elements ordinarily required to be proved in a bill of review proceeding. - First,, if a plaintiff was not served, constitutional due process relieves the plaintiff from the need to show a meritorious defense. Second, the plaintiff is relieved from showing that fraud, accident, wrongful act or official mistake prevented the plaintiff from presenting such a defense.
Bill of review plaintiffs alleging they were not served,' however, must still prove'the third and'final element required in a bill of review proceeding that the judgment was rendered unmixed with any' fault or negligence of their own. In Caldwell, we said this third and final element is conclusively established if the plaintiff can prove that he or she was never served with process. An individual who is not served with process cannot be at fault or negligent in allowing a default judgment to be rendered. Proof of non-service, then, will conclusively establish the third and only element that bill of review plaintiffs are required to prove when they are asserting lack of service of process as their only defense., . _ , ’
In sum, when a plaintiff seeks a bill of review based solely on a 'Claim of non-service, the bill of review procedure outlined in Goldsmith must be slightly modified. When a plaintiff -claims .lack of service, the trial court should: (1) dispense with any pretrial inquiry into a meritorious defense, (2) hold a trial, at which the bill of review plaintiff-assumes the burden of proving that the plaintiff was not served with process, thereby conclusively establishing a lack of fault or negligence in allowing .a default judgment to be rendered,- and (3)' conditioned upon an affirmative finding that the plaintiff was not served, allow the parties to revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case. '

Caldwell II, 154 S.W.3d at 96-97 (citations omitted).

The- supreme court expounded on its earlier holdings in Ross v. National Center for the Employment of the Disabled, 197 S.W.3d 795, 797 (Tex.2006). Although a bill-of-review petitioner must . normally show that he exercised due diligence to assert all adequate legal remedies before filing the bill of review, see Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998), the Ross court re-emphasized that the absence of proper service modifies the elements of a bill of review. Ross, 197 S.W.3d at 797. The court reiterated that a party who has not been properly served “is entitled to a bill of review without a further showing, because the Constitution discharges the first element, and lack of service establishes the second and third.” Id. This holding applies even when a party becomes aware of the proceedings and fails to participate. See id. at 797-98. The court stated, “While diligence is required from properly served parties or those who have appeared ... those not properly served have no duty to act, diligently or otherwise.” Id. (citations omitted).

Here, Barnes’s bill-of-review action is founded on his claim that he was not served with process in the SAPCR suit, which resulted in the 2009 default order he now challenges. In his sworn bill-of-review petition, Barnes asserted that he “was served via substitute service at an incorrect address and thus never received notice of the pending action.” Appended to his petition is a verification in which Barnes states, “I, Billy Ray Barnes, Petitioner, swear under oath that the facts stated in thé above Original Petition for Bill of Review are true and correct.”

The record reflects that, on December 2, 2013, the trial court conducted a hearing in the instant bill-of-review proceeding. The hearing began with the trial court’s considering, and denying, Deadrick’s special exceptions to Barnes’s petition. Immediately following its denial of Deadrick’s special exceptions request, the trial court initiated a discussion regarding Deadrick’s affirmative defense of res judicata, stating, “[Bjut I think your res judicata claim may have some merit [as opposed to the request for special exceptions.]” The court and the parties then engaged in a discussion regarding the propriety of Deadrick’s claim that Barnes’s second bill-of-review action was barred by the principle of res judicata. Deadrick based her res judicata defense on the associate judge’s September 10, 2010 oral denial of Barnes’s first bill-of-review petition, as indicated by associate judge’s docket notation in the earlier proceeding.

At the December 2013 hearing, Barnes’s counsel defended against Deadrick’s res judicata claim by pointing out that the only written order in the first bill-of-review action had been the 2011 order, signed by the presiding judge, dismissing that suit for want of prosecution. However, the trial court agreed with Deadrick’s assertion that the associate judge’s 2010 oral denial of the first bill-of-review petition, as noted in the docket sheet, established res judicata’ as to the second bill-of-review action.

The trial court concluded the hearing by stating as follows with respect to Barnes bill-of-review petition: “I agree with you [Deadrick], it’s been ruled on [by the associate judge]. It was ruled on more than three years ago [in 2010]. It was denied at that time, and res judicata applies. Tall are excused.” That was the end of the hearing.'

In her appellate brief, Deadrick asserts, [T]he history of this case, namely [Barnes’s] allowing a default to be taken against him on the original bill in 2010, and .in allowing for that bill to be subsequently dismissed in 2011, and the delay in re-filing this second bill, suggests a pattern of inatténtiveness to court proceedings upon which judgment denying his bill could rest. That Appellant would allow a default against him on his own petition would suggest that ... the original default in 2009 ... could also be attributed to this inattentiveness.

However, given his allegations, Barnes’s “attentiveness” in the SAPOR suit is not an issue here. As discussed, when a bill-of-review plaintiff claims no service of process, the only issue to be determine is whether he was served. See Caldwell II, 154 S.W.3d at 96-97; Ross, 197 S.W.3d at 797. It follows that a party, who is not served with process, cannot be negligently “inattentive” in that proceeding. See Caldwell II, 154 S.W.3d at 97 (“An individual who is not served with process cannot be at fault qr negligent in allowing a default judgment to be rendered.”). We cannot ascertain how Barnes’s conduct in the bill-of-review proceedings would have any relevance to whether his negligence, if any, resulted in his non-service in the SAPOR suit. Cf. Campus Invs,, Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex.2004) (affirming denial of a bill of review when petitioner never received service that was properly sent by the Texas Secretary of State because petitioner was negligent in failing to update addresses for its registered agent and registered office).

Moreover, Barnes’s “delay in refiling [the] second bill” does not support the- trial court’s denial of the petition: Generally, a bill-of-review plaintiff must file his claim within four years of rendition of the judgment he attacks. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 at 275 (Tex.2012). Here, the default SAPCR order was signed on April 9, 2009. After his first bill-of-review petition was' dismissed without prejudice to its re-filing, Barnes filed his second bill-of-review petition on January 31, 2013, within the four-year limitations period. Rizk, 603 S.W.2d at 775. The record does not support denial of the second bill-of-review action based simply on the timing of when it was filed. See Caldwell, 975 S.W.2d at 538 (rejecting laches defense to petition for bill of review and reversing summary judgment against bill-of-review plaintiff, who had filed action within four-year limitations period but had waited nearly two years to file action after learning of the default judgment).- -

On appeal, Deadrick also claims that Barnes failed to offer any evidence at the hearing to show that the 2009 default SAPCR order was not taken against him “due to his own fault or negligénce.” However,' the record shows that Barnes 'was not put to his proof on the merits of his claim at the December 2, 2013 hearing. The trial court did not conduct the hearing in accordance with the usual order of proceedings for a trial, which begins with the parties making opening statements followed by the introduction of evidence by the party “upon whom rests the burden of proof on the whole case.” See Tex. R, Civ. P. 265 (specifying order of proceedings in jury trials); see also Tex. R. Civ. P. 262 (providing that rules governing trial before a jury shall govern trials by court where applicable). Rather, the record shows that the trial court chose to determine Barnes’s bill of review on Deadrick’s affirmative defense of res judicata without first hearing evidence from Barnes.

The Supreme Court of Texas has stated that a trial court may, in its discretion, conduct a bill-of-review trial in one hearing, or it may conduct it in separate hearings. Baker, 582 S.W.2d at 409 (citing Tex. R. Civ, P. 174(b)). In making this statement, the supreme court cited Rule of Civil Procedure 174(b), which permits a trial court to order separate trials for any claim or issue “in furtherance of convenience or to avoid prejudice.” See Tex. R. Civ. P. 174(b); see also Grocers Supply, Inc. v. Cabello, 390 S.W.3d 707, 726 (Tex.App.-Dallas 2012, no pet.) (“An issue that is tried separately under rule 174 need not constitute a complete lawsuit in itself.”).

When Rule 174(b) was promulgated, the “Opinion of Subcommittee on Interpretation of Rules” stated, “The [trial] court has authority to order trial on any plea in bar or any separate issues and to render judgment solely on the plea or issue tried found to be decisive.” Tex. R. Civ. P. 174(b), Opinion of Subcommittee on Interpretation of Rules (citing 5 Tex. B.J. 125 (1942); 8 Tex. B.J. 12 (1945)). Embracing this concept, other courts have determined that a separate trial may be conducted on a defensive issue and, at the close of that trial, judgment may be rendered based solely on the. defensive issue. See, e.g., In re KM.T., 415 S.W.3d 573, 575 (Tex.App.-Texarkana 2013, no pet.) (concluding .that hearing, at which trial court dismissed-petitioner’s paternity suit with prejudice for failure to comply with statute of limitations, was a separate trial pursuant to Rule 174(b)); Phipps v. Miller, 597 S.W.2d 458 (Tex.Civ.App.-Dallas 1980, writ refd n.r.e.) (upholding separate trial on defendant’s plea of limitation).,, Here, neither Barnes nor Deadrick objected when the trial court chose to proceed by hearing Deadrick’s affirmative defense of res judi-cata rather than first determining whether Barnes could meet his burden on the bill of review. Thus, we treat the procedure utilized by the trial court in this case as a separate trial of the defensive issue of res judicata, which resulted in the trial court’s rendition of the judgment denying Barnes’s bill of review.

We note that, had the trial court determined that res judicata did riot bar Barnes’s bill-of-review action, further proceedings would have been necessary. See KM.T., 415 S.W.3d at 577, n. 5. At that point, Barnes would have been required to meet his burden to offer evidence showing that he was not served with process in the SAPOR action. But, because the rés-judi-cata issue was dispositive in this case, nothing further was left for the trial court to adjudicate. See id. Even if Barnes had offered evidence showing non-service, Deadrick’s affirmative defense of res judi-cata had already formed a separate, independent basis for denying the bill of review. See In re M.Y.W., No. 14-06-00185-CV, 2006 WL 3360482, at *2 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (“An affirmative defense does not rebut the factual propositions of the plaintiffs pleading, but, instead, allows the defendant to introduce evidence to establish , an independent reason why the plaintiff should not prevail.”).

On this record, Barnes’s presentation of evidence to show he was not negligent with respect to the judgment taken in the SAPCR action, that is, that he was never served, would not have changed the outcome. See id. Thus, we do not agree .with Deadrick that the trial court’s denial of Barnes’s bill-of-review petition could be based on the alternate theory that Barnes failed to offer proof to support his claim at the" hearing.

Lastly, in her brief, Deadrick asserts that Barnes cannot show that any error resulting from the trial court’s denial of the bill-of-review petition was harmful error. See Tex. R. App. P, 44.1(a). She claims that,- to demonstrate harm, Barnes was required to have made an offer of proof, pursuant to Rule of Evidence 103, to preserve in the record the evidence he would have offered to establish his claim had it not been denied by the trial court. See Tex. R. Evid. 103. However, the primary purpose of an offer of proof is to enable the reviewing court to determine whether the trial court erred by a ruling to exclude evidence and, if so, whether such error in excluding the evidence was harmful. See Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d 602, 608 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Here, Barnes presents no issue challenging an evidentiary ruling by the trial court to exclude evidence; thus, Rule of Evidence 103 has no application.

Conclusion

We hold that the trial court abused its discretion when it denied Barnes’s bill-of-review petition. Accordingly, we sustain Barnes’s sole issue. We reverse the judgment of the trial court and remand the case for further proceedings.

Justice Keyes, dissenting.

Evelyn V. Keyes, Justice,

dissenting.

I respectfully dissent. I strongly disagree with the majority’s disposition of this case, which I believe has important consequences (1) for the application of Texas bill-of-review law, • (2) for the construction of Texas Rule of Civil Procedure 165a, which makes mandatory and jurisdic: tional the failure to file a motion to reinstate a case dismissed for want of prosecution, and (3) Texas Rule of Civil Procedure 1, which provides that “[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights'of litigants under established principles of substantive law ... with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable.” Tex. R. Civ. P. 1. I think the majority allows an abuse of the bill-of-reviewproce-dures and keeps alive frivolous and unsustainable litigation when the plaintiff has readily available a legitimate remedy for any substantive wrong he may have suffered. I would affirm the judgment of the trial court and its award of sanctions.

The majority reverses the trial court’s dismissal of a second, bill of review filed by appellant, Billy Ray Barnes, seeking a new trial of a 2009 order in a suit affecting the parent-child relationship (“SAPCR”), filed in 2007, in which the trial court awarded sole managing conservatorship of a child to appellee, Marquita Deadrick, and supervised possessory conservatorship. to Barnes. Barnes defaulted in the SAPCR itself. He failed to appeal the 2009 SAPCR order. He failed to appear for the hearing on- his first bill of review proceeding, filed a year and a half after the 2009 order. He failed to present a shred of proof to corroborate his claim in his first bill of review that he was entitled to a new trial because he was not served with the SAPCR. He failed to present any proof to dispute the recitals in the 2009 order that he was “duly cited and served.” He failed to move to reinstate his first bill of review after the trial court dismissed it for want of prosecution. He failed to appeal the trial court’s order dismissing his first bill of review. He waited another two years before filing this second bill of review. He failed to make an offer of proof that he was never served with the original'SAPCR when the trial court held a- hearing on the second bill of review. And then he filed this appeal from the trial court’s order dismissing the second bill of review on res judicata grounds. The majority allows Barnes yet another bite at the apple. I would not. I believe the majority’s ruling is contrary to established- law, including law established by this Court, and contrary to the spirit of Rule 1.

It is hard to imagine a case in which a plaintiff has shown more conscious indifference to his own claim of right, in violation of the cardinal principle governing entitlement to a bill of review. Yet the majority’s holding and opinion keeps alive Barnes’s complaint that he was never served with the SAPCR — a complaint he has never sustained by any proof — and it allows him to use that bill of review to seek a new trial on the merits of the six-year-old final order in an eight-year-old child custody dispute.

I can only view the majority’s reversal of the trial court’s denial of Barnes’s second bill of review as contributing to delays and the waste of litigation and judicial resources in violation of Rule 1. Barnes’s claims and issues are identical to' those he filed in his previous bill of review proceeding, which he failed to prosecute, failed to move to reinstate following dismissal, and failed to appeal. I would hold that Barnes’s second bill of , review is barred under established law — including the law of this Court — by his own conscious indifference to prosecuting his first bill-of-review action and by his failure to file a motion to reinstate that first bill of review. I specifically note that Barnes is entitled to bring his own SAPCR to seek modification of the orders he has lived under for the last six years if he has any grounds for showing a change , in circumstances that render the order unjust.

Background

This is the second bill of review filed by Barnes concerning a SAPCR filed by Deadrick with respect to M.B. in 2007. Barnes failed to appeár in the' SAPCR to seek conservatorship of his child. On April 9, 2009, the trial court signed an order in the SAPCR that included a default judgment against Barnes. The order recited that Deadrick had appeared at trial with her attorney on March 23, 2009. The order also stated that, although he had been “duly and properly cited, [Barnes] did not appear [at trial] and wholly made default.” The trial court appointed Dead-rick as M.B.’s sole managing conservator and appointed Barnes as possessory conservator, granted him supervised visitation with M.B., and required him to pay $514.55 in monthly child support to Deadrick.

Barnes did not appeal the 2009 final order in the SAPCR, which granted sole managing conservatorship to Deadrick and supervised possessory conservatorship to him. Nor did he timely object in any way to the recitals in.the trial court’s final order that he, had been duly and properly cited to appear but -had made default. However, on or around September 10, 2010 — almost a year and half later — he filed a verified bill of review in the trial court contending that he had never been properly served with the SAPCR; He did not attach any evidence to disprove the recitals in the 2009 SAPCR order that he had, in fact, been “duly and properly cited” with service,,

On September 10, 2010, the associate judge held a hearing on Barnes’s bill of review petition. Barnes again failed to appear — even at the hearing on his' own bill of review — and thus presented no evidence to corroborate his' claim that he had not been served in the SAPCR proceeding and was therefore entitled to a new trial. Although the associate judge made a docket sheet entry noting ,that the bill of review was denied, the associate judge did not sign a written order memorializing that entry. Instead, on February 15, 2011, the presiding judge of the trial court dismissed the, bill of review for want of prosecution, noting that trial had been duly noticed to the parties for the previous day but neither had appeared.

Barnes ‘did not timely file a motion to reinstate his bill of review pursuant to Texas Rule of Civil Procedure 165a, and he did not appeal the trial court’s order dismissing his suit.

Barnes initiated his second bill-of-review proceeding — the proceeding underlying this appeal — on January 31, 2013, again seeking to set aside the 2009 order in the 2007- SAPCR. In his sworn petition, Barnes averred that he had been “prevented by [Deadrick] from asserting his parental rights to the child” because he “was served via substitute- service at an incorrect address and thus never received notice of the pending action.”. He did not attach any extrinsic proof — not even his own affidavit — to corroborate his claim that he had not been served with .the SAPCR petition in 2007 or to contradict the recitals in the 2009 final order that he had been duly cited but had made default. Nor did he attach any proof that he had not received notice of the hearing on his first bill of review, notice of the trial, or notice of that suit’s dismissal for want of prosecution.

Deadrick answered the petition and asserted the affirmative defense of res judi-cata. Deadrick claimed as follows: (1) there was a “prior final judgment by the [trial] court” in Barnes’s “previously filed bill of review”; (2) both Barnes and Dead-rick were parties to the earlier filed bill-of-review proceeding; and (3) the second-filed petition for bill of review “is based on the claims that were raised or could have been raised in the first action.”

The trial court conducted a hearing, heard and overruled Deadrick’s special exceptions to Barnes’s bill-of-review petition, heard the parties’ arguments regarding Deadrick’s affirmative defense of res judi-cata, and stated that the bill-of-review claim had been “ruled on more than three years ago. It was denied at that time, and res judicata applies.” Barnes did not argue that his case should not be dismissed because it was not res judicata. ■ He made no. attempt to make an offer of proof that he had never been served in the initial SAPOR proceeding. The trial, court signed an order denying the second bill-of-review petition on January 9,2014. ,

Barnes first raised the argument that he makes on appeal — that his second bill-of-review petition was not barred by res judi-cata — in a motion for new trial, to which he attached a copy of the February 15, 2011 order that dismissed the first bill-of-review action for want of prosecution.

Deadrick responded that the trial court had appropriately denied Barnes’s second bill-of-review petition on res- judicata grounds. She offered the docket sheet from the first bill-of-review proceeding, pointing out that, according to the associate judge’s notation, the associate, judge had denied Barnes’s-first bill-of-review petition on September 10, 2010. She- further asserted that it was procedurally improper for Barnes to challenge the trial court’s denial of the -second bill-of-review petition with a motion for new trial. She claimed that Barnes’s only available post-judgment remedy was to file an appeal. Deadrick also sought sanctions against Barnes, asserting that his motion for new trial-had been filed for “an improper purpose” and “to harass or to cause unnecessary delay or.needless increase in cost of litigation.” Following a hearing, the trial court denied Barnes’s motion for new trial, found that “Barnes’s claim is barred by res judicata” and that his motion for new trial was “procedurally improper,” found that Barnes had filed the motion for new trial for “an improper purpose,” and sanctioned him $2,700, representing Deadrick’s “reasonable attorney’s fees.”

On appeal, the majority reverses the trial court’s orders and remands the case to the trial court to try Barnes’s claim— made in Tooth bills of review — that he was not served eight years ago in the 2007 SAPOR procéeding, a matter on' which he has never presented any evidence despite repeated opportunities, all of which he has rejected. .

' I would hold that the trial court did not err in dismissing the case for want of prosecution in 2011 after Barnes missed both the hearing on his own bill-of-review petition and the scheduled and noticed trial' on his petition and made no proof whatsoever that he had never been served with citation in the 2007 SAPOR, displaying conscious indifference to the proceedings. I would further hold that, because Barnes failed-to avail himself of either a motion to reinstate his first bill of review within the time frame provided by Texas Rule of Civil Procedure 165a or a timely appeal of the trial court’s dismissal of that proceeding, his first bill of review became final and bars this subsequent attempt to resurrect his claim of lack of service in 2007.

' I note that Family Code section 156.0Ó2 specifically authorizes a party affected by an order iñ a SAPOR to file a suit for modification in the court with continuing exclusive ' jurisdiction: Tex. Fam, Code Ann. § 15G.002 (Vernon 2014). And Family Code section 156.101 expressly permits the trial court to “modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of qr access to a child if modification would be in the 'best interest of the .child and ... the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since .... the date of the rendition of the order.” Id. § 156.101(a)(1)(A) (Vernon 2014). Barnes has never availed himself of this opportunity. Instead, he seeks to retry , the 2007 case leading to the trial court’s 2009 order awarding managing conservatorship of the child to Deadrick six years ago and awarding him possessory conservatorship despite his repeated acts of conscious indifference to his rights.,

I would affirm the judgment of the trial court dismissing Barnes’s second bill of review. I also agree with the finding of that court that this entire proceeding is improper, and I would therefore likewise affirm the award of sanctions against Barnes.

Bill of Review

A. Standard of Review

In reviewing a trial court’s ruling on a bill of review, we indulge every presumption in favor of the trial-court’s ruling, and we will not disturb it unless an' abuse of discretion is affirmatively shown. Nguyen v. Interfax, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We may reverse the trial court for abusing its discretion in denying the bill of=réview only if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles. Id. In my view, this standard has not been followed by the majority in this case.

B. Dismissal of First Bill of Review for Want of Prosecution and Barnes’s Failure to Appeal or Move to Reinstate

The majority holds that the trial court’s dismissal of Barnes’s first bill of review proceeding for. want, of prosecution does not bar this-second bill of review regarding ■the exact same subject matter as the first — Barnes’s claim that he was never served with the 2007 SAPOR, in which he defaulted. I would hold that it does.

“[A]'party who fails to timely avail itself of available legal remedies is not entitled to relief by bill of review.” Davis v. Smith 227 S.W.3d 299, 304 (Tex.App.Houston [1st Dist.] 2007, no pet.) (citing Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.1999) (per curiam)); see also Wembley Inv. Co., 11 S.W.3d at 927 (“Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party.”). Thus, a bill of review is unavailable when a petitioner does not file a .motion to- reinstate a- proceeding dismissed for want of prosecution. See Davis, 227 S.W.3d at 304; see also Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex.1980) (“[0]ne with an available appeal who fails to pursue that remedy-is not entitled to seek relief by way of-a bill of review.”). “[T]he Supreme Court of Texas has explained' that' ‘[i]f a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to imagine any case in which failure to pursue one of them would not be negligence.’ ” Davis, 227 S.W.3d at 304 (quoting Gold v. Gold 145 S.W.3d 212, 214 (Tex.2004) (per curiam)); see also Rizk, 603 S.W.2d at 776 (stating that “a bill of review may not be used when one neglects to urge a motion for new trial or appeal when he has time to do so”).

Two sources grant a trial court the authority to dismiss a suit for want of prosecution, as the trial court here dismissed Barnes’s first bill of review: (1) Texas Rule of Civil Procedure 165a and (2) the trial court’s inherent authority. See Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999). The trial court may dismiss a case pursuant to Rule 165a based on the “failure of any party seeking affirmative relief to appear for any -hearing or trial of which the party had notice” or when the case is not disposed of within the time standards promulgated by the Texas Supreme Court. See. Villarreal, 994 S.W.2d at 630 (citing Tex. R. Civ. P. 165a(l), (2)). The common law also grants the trial court “the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence.” Id; Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex.App.-Waco 2005, pet. denied).

Rule 165a provides for dismissal for want of prosecution “on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.” -Tex. R. Civ. P. 165a(l) It then provides that the parties must be notified of the dismissal hearing and that “[a]t the dismissal hearing, the court shall. dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket.... The case may be continued thereafter only for valid and compelling reasons specifically determined by court order.” Id. (emphasis added). Notably, the trial court is not required to hold a dismissal hearing before dismissing an action for want of prosecution after the plaintiff has failed to appear for a hearing and the order setting the hearing clearly warned the parties that they could expect dismissal for want of prosecution if .the plaintiff failed to attend. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 851-52 (Tex.2004).

Rule 165a further provides that, following dismissal, a party may move to reinstate the case by verified motion setting forth the grounds for reinstatement. Tex. R. Civ. P. 165a(3). The motion' must be filed with the clerk within thirty days after the order of dismissal is signed or within the period prescribed by Rule of Civil Procedure 306a for periods running from the daté of judgment or notice of judgment. See id.; Tex. R. Crv. P. 306a. If a motion to reinstate an action dismissed for want of prosecution is timely filed, the trial court has plenary power to reinstate the case until thirty days after all such timely filed motions are overruled, either by written order or by operation of law. Davis, 227 S.W.3d at 303. If a motion to reinstate is not decided by signed, written order within seventy-five days after the judgment is signed, or within a time allowed by Rule 306a, the motion is deemed overruled by operation of law and the judgment of dismissal becomes final. Id.; see Tex. R. Civ. P. 165a(3). The time limits governing a motion to reinstate a cause of action dismissed for want of prosecution are mandatory and jurisdictional. Davis, 227 S.W.3d at 303.

When the trial court dismisses a case for want of prosecution and the plaintiff files a motion to reinstate, the court “shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not.intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Tex. R. Civ. P. 165a(3); Smith v. Babcock & Wilcox Constr. Co., 918 S.W.2d 467, 468 (Tex.1995) (per curiam). A failure of the party or his attorney is not intentional or due to conscious indifference “within the meaning of the rule merely because it is deliberate; it must also be without adequate justification.” Smith, 913 S.W.2d at 468. “Proof of such justification — accident, mistake or other reasonable explanation — negates the intent or conscious indifference for which reinstatement can be denied.” Id. Conscious indifference “means more than mere negligence.” Id. To obtain reinstatement, the plaintiff bears the burden of demonstrating that he has diligently prosecuted his case. See Jimenez v. Transwestem Prop. Co., 999 S.W.2d 125, 130 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex.App.-El Paso 2010, no pet.) (“The complaining party has the burden to bring forth a record to support its contention”).

Rule 165a(3)’s reinstatement provision applies to all dismissals for want of prosecution, including those made under the trial court’s inherent power. See Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n. 1 (Tex.App.-Houston [1st Dist.] 2012, no pet.) (citing Cappetta v. Hermes, 222 S.W.3d 160, 166 (Tex.App.-San Antonio 2006, no pet.), and Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 903 (Tex.App.-Houston [1st Dist.] 1991, writ denied)); see also Tex. R. Civ. P. 165a(4) (“The' same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court’s inherent power.... ”). By its plain language, Rule 165a provides the exclusive mechanism for reinstating a ease following dismissal for want of prosecution. See Tex R. Civ. P. 165a(3).

We review a trial court’s ruling dismissing a case for want of prosecution and a court’s ruling on a motion to reinstate for an abuse of discretion. See Smith, 913 S.W.2d at 468; Franklin v. Sherman Indep. Sch. Dist., .53 S.W.3d 398, 401 (Tex.App.-Dallas 2001, pet, denied) (per curiam). In reviewing a dismissal for want of prosecution, the court of appeals is required to affirm the dismissal if it finds that either the trial court’s inherent authority or Rule 165a would have authorized the trial court to dismiss the action. See Polk v. Sw. Crossing Homeowners Ass’n, 165 - S.W.3d 89, 96 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).. A trial court does not, however, abuse its discretion when “its decision is based on conflicting evidence or when some evidence of a substantive and probative character exists to support the trial court’s decision.” Olivas, 323 S.W.3d at 275 (citing In re Barber, 982 S.W.2d 364, 366 (Tex.1998)).

Here,' Barnes failed to ■ appear for the hearing on his own first bill of review, justifying dismissal of that bill of review under the' plain language of Rule 165a. See Tex. R. Civ. P. 165a(l), Moreover, the record affirmatively demonstrates that Deadrick did appear and that Barnes had notice but did not. The trial court’s order of dismissal likewise. affirmatively states that “[a]ll counsel of record in the above mentioned case were notified by this court that this matter was set for final trial on the merits on 2-14-11” and that “[n]either counsel appeared.” Dismissal of that first bill of review'for failure to appear at both the hearing and the trial on the merits of the bill of review was therefore justified under Rule 165a. See id.; Alexander, 134 S.W.3d at 851-52.

Barnes filed no motion to reinstate his first bill of review. Barnes likéwise failed to file an appeal of the trial court’s order dismissing his first bill of review, just as he failed 'to file a motion' to reinstate that proceeding. Since Barnes did not move to reinstate his first bill of review or file an appeal of the dismissal order, the order became a final and unappealable judgment thirty days after the trial court enteréd the order. See Davis, 227 S.W.3d at 303 (stating that time limits governing motion to reinstate cause of action dismissed for want of prosecution are mandatory and jurisdictional); see also In re Valliance Bank, 422 S.W.3d 729, 730 (Tex.App.-Fort Worth, 2013, orig. proceeding) (stating that Rule 165a requires timely-filed, sworn verification by movant or his attorney as jurisdictional prerequisite tó extend plenary power of trial court beyond thirty days afta- order of dismissal is signed).

Because Barnes failed to file a motion to reinstate and failed to appeal the dismissal of his first bill of review, he failed to timely avail himself of available legal. remedies, and the judgment on his first bill of review ■ became final -and unappealable. See Rizk, 603 S.W.2d at 775; Davis, 227 S.W.3d at 304. Notably, however, if he had filed an appeal, the reviewing court would have been obliged by law to conclude that the ■trial court did not abuse its discretion in dismissing his bill of review for want of prosecution.and was not required to reinstate the claims that Barn.es had failed to litigate despite repeated . opportunities. See Polk, 165 S.W.3d at 96 (in reviewing dismissal for want of prosecution, court qf appeals is required to affirm dismissal if it finds that either trial court’s inherent authority or Rule 165a would have authorized trial court to dismiss action).

The majority’s holding in this second bill 'of review, however; permits Barnes to bring exactly the same bill'of review on exactly the same grounds as before— namely, that he was not served in 2007— despite established law holding that he has no such right. Like the supreme court in Gold,- and this Court in Davis, I find it hard to imagine, under these circumstances, that Barnes was not negligent in failing to pursue his remedies for the alleged failure of Deadrick to serve him with notice of her petition in the SAPCR proceeding. See Gold, 145 S.W.3d at 214; Davis, 227 S.W.3d at 304. Indeed, I would hold that the record affirmatively demonstrates his conscious indifference to all of the proceedings from the filing of the SAPCR in 2007 to the filing of his second bill of review and its dismissal. Therefore, in my view, it cannot'be said that the trial court abused its discretion in dismissing the first bill of review.

Conclusion

• Because of Barnes’s conscious indifference to his rights and his failure to move to reinstate his first — identical—bill of review under Rule 165a within "the mandatory time limits, which resulted in a final and unappealable judgment against him on his first bill of review, I would hold that the trial court did not err in dismissing Barnes’s second bill of review. See Wembley Inv. Co., 11 S.W.3d at 927; Davis, 227 S.W.3d at 304. Accordingly, I would affirm the judgment of the trial court. I also agree with the trial court’s award of sanctions and would affirm it. 
      
      . It. is also unclear whether the associate judge’s verbal denial of the first bill-of-review petition was "on the merits." The docket she'et entry indicates that neither Barnes nor his counsel appeared at the September 10, 2010 hearing. Following the notation of nonappearance, the docket sheet entry indicates ’ that the petition was denied. From its placement, there appears to be a correlation between the non-appearance- and the denial of the petition. Moreover, at the December 2, 2013 hearing in this case, Deadrick’s counsel represented to the trial court that the first bill-of-review action had been denied because Barnes had failed to appear at the September 10, 2010 hearing., Although the associate judge indicated on the docket sheet that the first bill-of-review was “denied,'' not dismissed, it is not apparent from the limited record whether this ruling was intended to be a default judgment or whether it was intended to be a dismissal for want of prosecution. No transcript from the hearing appears in the record. We recognize that courts have held that a default judgment can constitute a determination on the merits for res judicata purposes.- See, e.g., Bovey v. Coffey, No. 09 — 11— 00445-CV, 2012 WL 1448530, at *4 (Tex.App.-Beaumont April 10, 2012, no pet.) (mem.op.); Reliance Capital, Inc. v. G.R. Hmaidan, Inc., No. 14-07-01059-CV, 2009 WL 1325441, at *4 (Tex.App.-Houston [14th Dist.] May 14, 2009, pet. denied) (mem.op.); Jones v. First Bank of Anson, 846 S.W.2d 107, 110 (Tex.App.-Eastland 1992, no writ). However, as discussed, a dismissal for want of prosecution, without prejudice, is not an adjudication on the merits and does not serve as res judicata to preclude a later-filed action. See Carter v. Charles, 853 S.W.2d 667, 672 (Tex.App.-Houston [Í4th Dist.] 1993, no writ).
     
      
      . The dissent states that Barnes’s second bill of review is barred by Barnes’s failure to file a motion to reinstate his first bill-of-review action under Rule of Civil Procedure 165a, and the dissent notes that Barnes did not file his own SAPRC seeking to modify the April 9, 2009 default order, establishing conservator-ship and child support. Barnes’s failure to move to reinstate the first bill of review proceeding under Rule 165a was never raised or relied on by Deadrick in the trial court (or on appeal) as a reason for denying the second bill-of-review petition. We recognize that this Court may "uphold a lower court judgment on any legal theory before it, even if the court gives an incorrect reason for its judgment.” Guar. County Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986) (emphasis added). At least one court of appeals has held that a judgment cannot be affirmed based on a ground not presented to the trial court and to which the opposing side has not had an opportunity to respond. See Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 290 (Tex.App.-Dallas 2008, pet. denied). With respect to the fact that Barnes did not seek to modify the 2009 default order, we note that this.Court has previously held that a bill of review petitioner, challenging a conservator-ship order, is not required to first file an action seeking modification of that order, if the matters raised in the bill-of-review petition differ from those that would be raised in a suit to modify. Blum v. Mott, 664 S.W.2d 741, 744 (Tex.App.-Houston [1st Dist,] 1983, no writ) (holding that issue of fraud, of which appellant complained in bill of review, could not properly be raised in proceeding to modify conservatorship; thus, appellant was not required to seek relief under the provisions of the Family Code before filing her bill of review). Here, the issue of Barnes’s non-service, raised in his bill-of-review petition, would not properly be raised in a suit seeking modification of the 2009 SAPCR order. See id. (explaining that issue of fraud would not properly be raised in modification action because governing Family Code section focused on changed circumstances after entry of challenged conservatorship' order, while bill-of-review petition was based on appellee’s alleged fraudulent representations to appellant made before entry of the order).
     
      
      . The dissent cites Davis v. Smith, 227 S.W.3d 299, 304 (Tex.App,-Houston [1st Dist.] 2007, no pet.) for the proposition that "a party who fails to timely avail itself of available legal remedies is' not entitled to relief by bill of review.” However, Davis differs from the present case in a significant way. In Davis, the bill-of-review plaintiff sought to utilize a bill-of-review action to challenge a judgment dismissing a lawsuit for want of prosecution. See id. at 301. There, the plaintiff had not exhausted her available legal remedies to challenge the dismissal judgment before she filed the bill-of-review petition. See id., at 303-304. In contrast; Barnes seeks to use the bill-of-review procedure to challenge the SAPCR default judgment rendered against him in a case in which he asserts that he had not been served. In other words, while Davis turned on whether the appellant could utilize a bill-of-review action to challenge a dismissal judgment in a case she had filed, the present case turns on whether Barnes can utilize the bill-of-review process to challenge a default judgment rendered against him in case where he asserts ’ no service. Thus, Davis is not controlling here.
     