
    IN the INTEREST OF a CHILD
    NO. 02-15-00118-CV
    Court of Appeals of Texas, Fort Worth.
    DELIVERED: April 7, 2016
    
      Paul Wieneskie, Bailey & Galyen, Fort Worth, TX, for Appellant.
    Thomas Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, for Appellee.
    PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ.
   OPINION

SUE WALKER, JUSTICE

I. Introduction

The Mother and Father of Child appeal from the trial court’s summary judgment against them in their bill-of-review proceeding and in favor of Appellee The Gladney Center for Adoption. Because Gladney conclusively negated the third element of Mother and Father’s bill-of-review proceeding, we will affirm the trial .court’s judgment.

II. Factual and Procedural Background

On September 17, 2013, Mother and Father both signed affidavits of voluntary relinquishment, relinquishing their parental rights to Child, who was to be placed for adoption through Gladney.- Mother and Father also both signed an October 9, 2013 agreed judgment terminating their parental rights to Child. Mother and Father were not mailed a copy of the termination judgment. See Tex., Fam. Code Ann. § 161.209 (West 2014) (providing that “[a] copy of an order of termination rendered under Section 161.206 is not required to be mailed to parties”). • On October 29, 2013, the trial court signed a nunc pro tunc termination judgment correcting the county of Child’s birth.

On March 31, 2014, Mother and Father filed a bill of review, challenging the volun-tariness of the affidavits of relinquishment that they had signed. Mother and Father claimed that their signatures on their affidavits of relinquishment were induced by fraud in that the adoptive parents of Child and Gladney led them to believe that the “contact agreement” they had sighed with Child’s adoptive parents concerning their rights to access of Child would be honored.

Gladney filed a motion to dismiss the bill of review alleging that Mother and Father had failed to exhaust the legal remedies available to them to challenge the termination judgment (i.e., a motion for new trial and appeal) prior to filing their bill of review. A copy of the October 9, 2013 agreed judgment, which was signed by Mother and Father and which terminated their parental rights to Child, was attached to Gladney’s motion to dismiss. Based on Mother and Father’s arguments at the hearing on Gladney’s motion to dismiss, during which they asserted that a motion to dismiss was an improper vehicle and that “[ijndeed the vehicle[] available .... to make this sort of challenge [is] ... a motion for summary judgment,” the trial court recharacterized Gladney’s motion to dismiss as an “inartfully- named” motion for summary judgment. See Tex. R. Civ. P. 71. The trial court then gave Mother and Father additional time for discovery and to file á response to Gladney’s motion.

In due course, Mother and Father filed a “Response to Motion’ to Dismiss, Re-Designated as Motion for Summary Judgment,” attaching affidavits and .summary.judgment evidence and asserting that Mother and Father did not fail to exhaust the legal remedies available to them before filing their bill • of review. Mother and Father’s response asserted that because they did not possess actual notice of entry of the judgment terminating their parental rights to Child, they did not negligently fail to pursue a motion for new trial or an appeal ■ concerning the termination judgment and that “Texas law does not permit Respondent to use a Motion to Dismiss or a Motion for Summary Judgment to attack an alleged pleading deficiency.” Following another hearing on Gladney’s motion, now recharacterized as a motion for summary judgment, the trial court granted summary .judgment for Gladney. Mother and Father raise five issues on appeal.

III. STANDARD OF REVIEW

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary' to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). - A defendant who conclusively negates.- at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010), cert. denied, 562 U.S. 1180, 131 S.Ct. 1017, 178 L.Ed.2d 829 (2011); see Tex. R. Civ. P. 166a(b), (c).

IY. The Law Concerning Bill-of-Review Proceedings and Notice of a Judgment

A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Ross v. Nat’l Ctr. for the Emp’t of the Disabled, 197 S.W.3d 795, 797 (Tex.2006); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). The fundamental policy that finality must be accorded to judgments makes the grounds upon which a bill of review will be granted narrow and restricted. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030,124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). Bill-of-review plaintiffs must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action; (2) which the plaintiffs were prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake; (3) un-rnixed with any fault or negligence on their own part. Nussbaum v. Builders Bank, 478 S.W.3d 104,108 (Tex.App.-Fort Worth 2015, pet. filed) (op. on reh’g).

Generally, a bill of review is available only when a party has exercised due diligence to avail herself of all adequate legal remedies against a former judgment because a party who fails to pursue available legal remedies is at least partially at fault for her inability to raise a meritorious defense under the third required bill-of-review elemént. See, e.g., Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (stating 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” precluding a party’s pursuit of a bill of review); Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex.1999) (“A party who fails to timely avail itself of available legal remedies is not entitled to relief by bill of review.”); French v. Brown, 424 S.W.2d 893, 895 (Tex.1967) (stating that if a party permits a judgment to become final by failing to invoke his right of appeal, then that party is precluded from proceeding on a bill of review unless the party shows a good excuse for the failure to exhaust adequate legal remedies). If the • complainant had legal remedies that were ignored, relief by bill of review is unavailable. Wembley Inv. Co., 11 S.W.3d at 927; accord Ferrice v. Legacy Ins. Agency, Inc., No. 02-05-00363-CV, 2006 WL 1714535, at *3 (Tex. App.-Fort Worth June 22, 2006, pet. denied) (mem.op.).

A bill-of-review plaintiff asserting lack of notice of the judgment entered against her still ultimately bears the burden under the third bill-of-review element of proving that her failure to file a motion for new trial or appeal was not due to any fault or negligence of her own. Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex.1974). In Petro-Chemical Transport, Inc., the plaintiff and the defendant tried the case to a jury, and the jury returned a verdict for the plaintiff. Id. at 242. The plaintiff submitted a proposed judgment for entry by ■ the trial court, and it was signed without notice to the defendant. . Id. Additionally, the trial court clerk, failed to mail notice to the defendant that the trial court had signed the judgment. Id. Neither the defendant nor his attorney learned of the entry of judgment until after expiration of the time to file a motion for new trial or a notice of appeal. Id. After the trial court granted the bill of review, the case proceeded to the supreme court; the supreme court specifically addressed whether the bill-of-review plaintiff (the defendant below) was required to show that his failure to file a motion for new trial or ah appeal was not due to any fault or negligence of his own. Id. at 243. The supreme court stated:

We agree with the Court of Civil Appeals that defendant had the burden of showing that its failure to file a motion for new trial or appeal was not due to any fault or negligence on , the part of defendant or its counsel. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 [ (1961) ]. As pointed but in Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983 [(1945)]:
No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence[,] or mistake either of the party seeking relief or his counsel.

Id. at 246.

V. Analysis

A. The Substance of Gladney’s Motion

Confusion exists in Mother and Father’s briefing concerning the trial court’s decision to recharacterize Gladney’s motion to dismiss as a motion for summary judgment. Gladney’s motion to dismiss was based solely on the ground that Mother and Father had signed an agreed judgment terminating their parental rights and were, consequently, aware “that rendition of the judgment was imminent,” Glad-ney’s motion argued that because Mother and Father failed, despite their agreement to the termination judgment and their knowledge of its imminent rendition, to pursue the legal remedies of filing a motion for new . trial or a notice of appeal, they, could not as a matter of law establish the third bill-of-review element — that they were prevented from asserting a meritorious defense in the termination case due to no negligence on their part. The October 9, 2013 agreed termination judgment was attached to Gladney’s motion to dismiss.

In an apparent concession to Mother and Father’s argument that the' proper vehicle for Gladney to use to raise this argument was a motion for summary judgment, the trial court recharacterized Glad-ney’s motion as a motion for summary judgment on the third bill-of-review element — whether Mother and Father’s failure to pursue the legal remedies, of a motion for new trial or an appeal in the termination ease was due to no negligence on their part. Mother and Father’s subsequently-filed response, and the summary-judgment evidence attached thereto, join issue on this point — Mother’s summary-judgment affidavit and Mother and Father’s summary-judgment evidence focus on the issue of whether Mother and Father knew of the termination judgment and nonetheless failed to pursue the legal remedies available to them.

Because the substance of Gladney’s motion asserted that — based on the agreed termination judgment signed by Mother and Father — Mother and Father could not satisfy the third bill-of-review element and because justice required such- a recharac-terization in light of Mother and Father’s contention that summary judgment was in fact the proper vehicle for Gladney to use, the trial court correctly recharacterized Gladney’s motion as a motion for summary judgment. See Tex. R. Civ. P. 71 (explaining that nature of pleading is determined by its substance and mandating re-characterization dictated by pleading’s substance when justice so requires), 166a(b), (c); Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex.2011) (construing prejudgment motion for JNOV that also prayed for a new trial as premature postjudgment motion that extended appellate timetable); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (construing motion titled motion for summary judgment as a motion for statutory interlocutory order); see also Davis v. Canyon Creek Estates Homeowners Ass’n, 350 S.W.3d 301, 308 (Tex.App.-San Antonio 2011, pet. denied) (holding substance of motion for summary judgment determines whether motion is traditional or no-evidence motion, not title); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex.App.-Dallas 2009, pet. denied) (same).

We overrule Mother and Father’s second issue claiming that Gladney’s motion for summary judgment was based on a pleading defect. See, e.g., Nussbaum, 478 S.W.3d ' at 109-10 (addressing summary judgment granted in bill-of-review proceeding on third bill-of-review element).

B. Summary Judgment for Gladney Was Proper

We view all of the summary-judgment evidence in the light most favorable to nonmovants Mother and Father to determine whether a genuine issue of material fact exists on the third bill-of-review element — that Mother and Father’s failure to pursue the legal remedies of a motion for new trial or an appeal was not due to any fault or negligence on their part but was caused by their lack of actual notice of the entiy of the agreed judgment terminating their parental rights. The termination judgment attached to Gladney’s motion established that Mother and Father knew of the content of the termination judgment because they signed it. Mother’s counsel explained that Mother had learned the “contact agreement” was not legally enforceable one hour prior to signing her affidavit of voluntary relinquishment. Mother’s eleven-page summary-judgment affidavit' established that she and Father knew that the judgment terminating their rights had been signed because the adoptive parents took possession of Child. Mother and Father nonetheless continued their efforts to see Child, and the adoptive parents became more and more resistant. Mother’s affidavit explains that within eleven days of the September 17, 2013 signing of the “legal documents,” the adoptive parents traveled to Austin “to wait out the ICPC[] period

instead of staying in Fort Worth where we could visit.”' Mother’s affidavit states, “The reason we did not file motions sooner was the adoptive parents themselves, They were still allowing some contact, but not as much as we had been led to believe. We didn’t want to lose the little bit that we were getting.”

The summary-judgment evidence viewed in the light most favorable to Mother and Father establishes that Mother and Father were aware (within eleven days of September 17, 2013) — which was prior to the trial 'court’s entry of the agreed termination judgment and was during the time period for filing a motion for new trial — of the existence of the facts they now assert fraudulently induced them into signing voluntary-relinquishment-of-parental-rights affidavits and that they chose not to pursue legal remedies. Mother and Father chose not to pursue the legal remedies of a motion for new trial or an appeal not because they were unaware of the termination judgment but because they feared jeopardizing their contact with Child. Awareness of a legal remedy and a decision not to pursue it precludes subsequent equitable relief through a bill of review. See, e.g., Gold, 145 SW.3d at 214; Wembley Inv. Co., 11 S.W.3d at 927; French, 424 S.W.2d at 895; Ferrice, 2006 WL 1714535, at *3. Likewise, awareness of a legal remedy and a decision to wait to delay pursuing it does not constitute a good excuse for the failure to purse it. See, e.g., Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 317 n. 2 (Tex.App.-Fort Worth, 2015, no- pet.) (collecting cases in which articulated reason for failure to timely file notice of appeal did not constitute reasonable explanation). •

Because the trial court did' not err by granting summary judgment for Gladney on the ground that Gladney had conclusively negated the third element of Mother and Father’s bill-of-review proceeding, we overrule Mother and Father’s first, third, fourth, and fifth issues.

VI. Conclusion

Having overruled each of Mother and Father’s issues, we affirm the trial court’s judgment.

SUDDERTH, J., filed a concurring opinion.

'

BONNIE SUDDERTH, JUSTICE,

concurring.

I. Introduction

If it looks like a duck, walks like a duck, swims like a duck, quacks like a duck — and most importantly calls itself a duck — it’s a duck. ...

The majority opinion holds that the trial court “correctly” recharacterized a three-page, bare-bones .“Motion to Dismiss” as a motion for summary judgment pursuant to rule of civil procedure 71 even though the dismissal motion made ho mention of rule 166a, never employed the terms “summary” or “summary judgment,” included no reference to the summary judgment standard of review, provided no guidance on whether a traditional or no-evidence burden should apply, and did not request summary judgment relief.- Because, at best, such a holding wpuld create uncertainty and, at worst, it would create a trap for civil practitioners and trial courts who are guided by the words we choose, I cannot agree with the majority opinion. But because I agree with the result reached, I respectfully concur rather than dissent,

II. Discussion

A. Summary Judgments and Due Process

Summary judgments deprive litigants of the right to a jury trial and are not to be granted without the procedural protections necessary to provide the 'nonmovant with due process. See Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex.App.-Dallas 2004, pet. denied). For example, the nonmovant is entitled to proper notice.under rule 166a, and the failure to provide notice deprives the litigant of the right to be heard, constitutes a denial of due- process, and is grounds for reversal. See Lewis v. Blake, 876 S.W.2d 314, 315 (Tex.1994); see also Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378, 383 (Tex.App.-Fort Worth 2005, pet. denied) (op. on reh’g). Due process also requires that the parties receive notice “ ‘reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.’ ” Peralta v. Heights Med. Ctr., 485 U.S. 80, 84, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988) (quoting Mullane v. Cent Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)): see Tex. R. Civ. P. 166a(c).

Further, a court cannot grant summary judgment on grounds not expressly presented in the motion. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex.2011); State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex.2010). The summary judgment motion must give fair notice to the nonmovant of the basis on which the summary judgment is sought. Tex. R. Civ. P. 166a; Waite v. Woodard, Hall & Primm, 137 S.W.3d 277, 281 (Tex.App.-Hpuston [1st Dist.] 2004, no pet.). And in determining whether grounds are expressly presented, we may look only to the motion itself; we may not rely on briefs or summary judgment evidence — even if attached to the motion itself — or any other document on file in the case. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (citing McConnell v. Southside ISD, 858 S.W.2d 337, 341 (Tex. 1993)); Garza v. CTX Mortg. Co., 285 S.W.3d 919, 923 (Tex. App.-Dallas 2009, no pet.); see Tex. R. Civ. P. 166a(c), (i). Likewise, the standard of review provides procedural protections. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). .

When granted, a motion for summary judgment results in á judgment on the merits on the particular ground or grounds raised. See Tex. R. Civ. P. 166a(a)-(c), (i). In contrast, generally speaking, motions to dismiss, when granted, result in dismissal orders, either with or without prejudice. See, e.g., Turner v. Delgado, No. 09-14-00339-CV, 2015 WL 7300711, at *1 (Tex. App.-Beaumont Nov. 19, 2015, no pet.) (mem.op.); Leachman v. Dretke, 261 S.W.3d 297, 312 (Tex.App.-Fort Worth 2008, no pet.) (op. on reh’g); see also Tex. Civ. Prac. & Rem. Code Ann. §§ 13.001, 14.003, 14.010 (West 2002) (addressing dismissals for indigent or incarcerated civil parties), § 74.351(b) (West Supp.2015) (addressing dismissals in health care liability cases); Tex. R. Civ. P. 165a (setting out procedure governing dismissal for want of prosecution).

B. Gladney’s Motion to Dismiss

On its face, the motion to dismiss filed by Gladney in this case bears' no resemblance to a motion for summary judgment. The motion contains nary a hint that the motion’s true nature was — or even could be — a motion that would trigger an analysis or response pursuant to rule 166a.

Nor does the record demonstrate that either party viewéd the motion to dismiss as a summary judgment motion. In their response to Gladney’s motion to dismiss, the parents argued that sumhaary judgment, not dismissal, was one of only two proper procedural vehicles (the other being a special exception) to raise Gladney’s issue. The parents’ attorney repeated this at the dismissal hearing. Fully aware of this challenge to its dismissal motion prior to the hearing, Gladney nonetheless chose to proceed with its chosen vehicle. Only when pressed at the hearing on the dismissal motion .did Gladney’s attorney suggest to the trial court that it would be “entirely proper to consider [the motion to dismiss] a motion for summary judgment.” In response, the parents’ attorney lodged more than one objection, voicing several of the due process concerns addressed herein. Nevertheless, at the conclusion of the hearing, the trial court found that the motion to dismiss was an “inartfully named” motion for summary judgment.

But for the fact that the trial court simultaneously cured the due process problems created by its erroneous redes-ignation, the trial court’s action would have constituted an abuse of discretion. But the discretion afforded a trial court includes the right to be -wrong, as long as it does no harm. See Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 936 (Tex. App.-Austin 1987, no writ) (observing that the abuse-of-discretion standard also “protects to a limited degree the trial court’s ‘right’ to be wrong without suffering appellate revision” when the trial court’s error is not prejudicial or does not result in injury). Because the trial court gave the parents notice that it was considering the motion to dismiss as a motion for summary judgment on the narrow ground articulated in the record, provided additional time for discovery, and granted an extension of the time allowed by the rules to file a summary judgment response to the redes-ignated motion, the erroneous ruling caused no harm.

Under different circumstances, such re-designation could have operated to deprive a litigant of his or her procedural safeguards. So, it is only because of the circumstances peculiar to this case — the trial court’s mitigation of harm attendant to the error — that we should find no abuse of discretion in the redesignating of the motion to dismiss as a motion for summary judgment. To go further and pronounce legally correct the practice of redesignat-ing a motion to dismiss like the one presented here as a motion for summary judgment — especially when it is unnecessary to reach the same result in this case — places an unnecessary and unreasonable burden upon trial practitioners in the future who are charged with the duty of adequately responding to motions.

Standing alone, as written, Gladney’s motion to dismiss would not provide fair notice to any legal practitioner or party that summary judgment, as opposed to dismissal, was sought. But because the majority would characterize the trial court’s action as legally “correct,” prudent practitioners may now feel compelled to engage in time-consuming, costly, and frustrating mental gymnastics aimed at predicting any possible alternative way an otherwise clearly-drafted and properly-styled motion could be redesignated by a trial court. Then they must consider devoting the additional time and resources to respond accordingly. Likewise, - trial judges may now feel obliged to look beyond labels, words, and arguments in well-articulated, unambiguous motions — even when no mistake is alleged or proven and justice does not require redesignation— lest they make a legally incorrect decision. See Tex. R. Civ. P. 71.

Thus, the majority’s conclusion that the trial court’s, decision was legally correct, rather than harmless error, creates an unnecessary trap for practitioners and trial courts alike.

III. . Conclusion

Because the majority would affix its imprimatur upon the practice of judicial redrafting of an unambiguous motion to dismiss into a motion for summary judgment under the auspices of rule 71, I concur only in the outcome. 
      
      . Pursuant to Texas Rule of Appellate Procedure 9.8(b)(2), we use the terms Mother, Father, and Child to protect the identities of the parties. See Tex. R. App. P. 9.8(b)(2).
     
      
      . Father is not the biological father of Child; while married to Father, Mother gave birth to Child whose biological father is not a party to this appeal.
     
      
      . The "contact agreement” was not included in Mother and Father's summary-judgment evidence.
     
      
      . Mother and Father’s five issues are as follows:
      1. Whether the trial court erred in rendering the Final Summary Judgment.
      2. Whether a Motion for Summary Judgment was a permissible procedural vehicle to attack an alleged pleading insufficiency.
      3.Whether genuine issues of material fact precluded a Summary Judgment.
      4’. Whether the Final Summary Judgment is supported by legally or factually -sufficient evidence. : -
      5.Whether premature dismissal of the Bill of Review by Summary Judgment constitut- , ed a denial of due process.
     
      
      . Our holding .that the trial court here correctly recharacterized Gladney’s motion is expressly limited to the specific facts before us.
     
      
      . Because we hold that the summary-judgment evidence conclusively establishes that Mother and Father failed to pursue legal remedies available to them to assert the meritorious defense they allege that they possess to the agreed termination judgment, we need not include in our analysis the statutory fact that Mother and Father were not entitled to a mailed copy of the termination judgment. See Tex. Fam. Code Ann. § 161.209.
     
      
      .The Interstate Compacton the Placement of Children is applicable here because Child's adoptive parents are from Maryland.
     
      
      . We need not, and do not, reach the issue of whether Mother and Father possess a meritorious defense to the termination of their parental rights, that being that their affidavits of voluntary relinquishment were induced by promises of continued contact with the Child. See Tex. R. App. P. 47.1.
     
      
      . The affidavit-of-relinquishment cases cited by Mother and Father are not controlling. They do not address the issue of failure to exhaust legal ■ remedies by a bill-of-review plaintiff. See Rogers v. Searle, 544 S.W.2d 114, 115 (Tex.1976) (issue was extrinsic fraud); Queen v. Goeddertz, 48 S.W.3d 928, 931 (Tex. App.-Beaumont 2001, no pet.) (issue was meritorious defense); Vela v. Marywood, 17 S.W.3d 750, 758-62 (Tex.App.-Austin 2000) (involving direct appeal from termination judgment), pet. denied, 53 S.W.3d 684 (Tex. 2001). '
     
      
      . In the introduction on page one, movant referred to the motion as a “Motion to Dismiss with prejudice.” [Emphasis added.] Section I on page one provided a brief factual summary and procedural history of the case.
      Page two, began with section II, entitled "Grounds of Dismissal." [Emphasis added.] This section consisted of two sentences, "[The parents] had the opportunity to file a motion • for new trial because they had sufficient notice of the judgment. Having failed to do so, they are now precluded from filing a bill of review.” '
      Section III; entitled "Argument and Authorities,” followed on pages two and three with four paragraphs. The first paragraph set forth the elements of proof required to prevail ■ in a bill of review proceeding and concluded with the sentence, "At issue here is whether [the parents] had timely notice of the judg- ■ ment within the time frame set forth, in Rule ,306a TRCP in order to file a motion for new trial.”
      The second paragraph of section III consisted of one sentence, "A party who has notice of the entry of a judgment while the remedy of filing a motion for new trial is available and who fails to do so, is precluded from asserting a- bill of review,” followed by cita- , tions in support of that statement. The third paragraph, in six sentences, discussed a party’s duty to inquire as to whether a judgment has been signed and the law with regard to imposition of constructive notice when a party fails to make such inquiry. The fourth paragraph consisted of a two-sentence summary, “Because [the parents] each signed the judgment, they participated in the trial.... They were therefore charged with notice of the judgment and had a duty to inquire when the judgment was entered.” [Citations omitted.]
      Finally, the motion concluded with a prayer for relief:
      WHEREFORE, Respondent prays that notice be given ... and that upon hearing Respondent’s Motion that it be granted and that Petitioner’s Original Petition for Bill of Review be dismissed with prejudice and for such other and further relief to which Respondent may be entitled to receive. [Emphasis added.]
     
      
      . In response to Gladney’s assertion' that "Rule 71 says how it’s designated has got nothing to do with the. substance of the motion,” the trial court asked the parents' attorney, "[If] I find that ... [the] Motion To Dismiss is just iñartfiilly named and it really is á Motion for Summary Judgment, what is it that you need time to do that you haven’t already done in response?”
     
      
      . Rule 71 states, "When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated,...” See Tex. R. Civ. P. 71. The word “require” has been defined to mean "demand, compel, need, to be in need of.” Black’s Law Dictionary (5th ed.1979). While the redesig-nation was more expedient, at least from Gladney’s perspective, Gladney provided no argument or evidence of any compelling need for the redesignation such that it could be said that justice required it. Nor was there any showing of mistaken designation, i.e., Gladney did not offer any evidence or even argue that the motion was mistakenly designated "Motion to Dismiss” when it should have been designated "Motion for Summary Judgment.”
     