How to File a Motion to Set Aside Default Judgment In Texas ?
It is well-settled that a plaintiff seeking to set aside a judgment by bill of review must establish three elements:
"(1) a meritorious defense to the cause of action alleged to support the judgment;
(2) which he was prevented from making by the fraud, accident or wrongful act of the opposing party;
(3) unmixed with any fault or negligence of his own." Baker, 582 S.W.2d at 406-407 (quoting Alexander v. Hagedorn, 148 Tex. 565, 568, 226 S.W.2d 996, 998 (1950)).
In Baker v. Goldsmith, the supreme court established the procedure, the standard of proof, and the order of proceedings to be followed on a bill of review. 582 S.W.2d at 408-09.
The bill of review complainant must file a petition, alleging factually and with particularity that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party, or official mistake unmixed with his own negligence. Id.
The complainant must further allege, with particularity, sworn facts sufficient to constitute a meritorious defense to the original judgment. Id.
At a pre-trial hearing, the complainant must present "prima facie" proof of the alleged meritorious defense. Id. a prima facie meritorious defense is made out when it is determined that the complainant's defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered. Baker, 582 S.W.2d at 409.
This preliminary showing is essential to assure the court that valuable resources will not be wasted by conducting a "full-blown" trial on the merits. Baker, 582 S.W.2d at 408.
Whether a prima facie defense has been presented is a question of law for the court. Id.
Prima facie proof may be comprised of documents, answers to interrogatories, admissions, and affidavits on file along with such other evidence that the trial court may receive in its discretion. Baker, 582 S.W.2d at 409. the bill of review defendant may respond with like proof showing that the defense is barred as a matter of law, but factual questions arising out of factual disputes are resolved in favor of the complainant for the purposes of this pretrial, legal determination. Id.
If the court determines that a prima facie meritorious defense has not been presented, the proceeding terminates and the trial court shall dismiss the case. Id.