NO. 01-14-00845-CV

IN THE COURT OF APPEALS FOR THE 

FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON

DAVID LANCASTER,

APPELLANT

v.

BARBARA LANCASTER,

APPELLEE

On appeal from the 247th Judicial District Court

Harris County, Texas | Cause No. 2013-05066

APPELLEE’S BRIEF

LAW OFFICE OF MARY K. QUINN

Mary K. Quinn

State Bar No. 164363250

1314 Texas Avenue, Suite 1515

Houston, Texas 77002

Tel: (713) 225-0094 | Fax (713) 225-0099

maryquinn@maryquinnlaw.com

Respectfully submitted,

LAW OFFICE OF JANICE L. BERG

Janice L. Berg

State Bar No. 24064888

1314 Texas Avenue, Suite 1515

Houston, Texas 77002

Tel: (713) 993-9100 | Fax: (713) 225-0099

janice@janiceberglaw.com

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED

ACCEPTED

01-14-00845-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/8/2015 10:53:33 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 10:53:33 PM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Appellant/Petitioner

DAVID LANCASTER (former husband)

Representing Appellant at Trial:

Diane St. Yves, PLLC

State Bar No. 45005386

River Oaks Tower

3730 Kirby Drive, Suite 1030

Houston, Texas 77098

Telephone: (281) 822-6000

Facsimile: (713) 807-7581

diane@styveslaw.com

Representing Appellant on Appeal:

Appellant is pro se on appeal

Appellee/Respondent

BARBARA LANCASTER (former wife)

Representing Appellee on Appeal:

Janice L. Berg

State Bar No. 24064888

LAW OFFICE OF JANICE L. BERG

1314 Texas Avenue, Suite 1515

Houston, Texas 77002

Telephone: (713) 993-9100

Facsimile: (713) 225-0099

janice@janiceberglaw.com

Representing Appellee at Trial and on Appeal:

Mary K. Quinn

State Bar No. 164363250

LAW OFFICE OF MARY K. QUINN

1314 Texas Avenue, Suite 1515

Houston, Texas 77002

Telephone: (713) 225-0094

Facsimile: (713) 225-0099

maryquinn@maryquinnlaw.com
i

TABLE OF CONTENTS

Identity of Parties and Counsel.................................................................................ii

Table of Contents.......................................................................................................i

Index of Authorities.................................................................................................iii

Statement of the Case...............................................................................................vi

Statement Regarding Oral Argument.......................................................................vi

Statement of Facts..................................................................................................... 1

A. Factual Background............................................................................... 1

B. Appellate Procedural History................................................................. 3

i. Direct appeal of the 2012 protective order.......................................... 3

ii. Mandamus and Writ of Prohibition.................................................... 3

Summary of the Argument........................................................................................ 3

Argument and Authorities......................................................................................... 4

I. Standard of Review..................................................................................... 4

II. Response to Issues 1 and 2 ........................................................................ 6

III. Response to Issue 3................................................................................... 7

IV. Response to Issue 4................................................................................... 8

V. Response to Issue 5.................................................................................... 9

VI. Response to Issue 6................................................................................. 10

VII. Response to Issue 7................................................................................. 12

VIII.Response to Issue 8................................................................................. 14

IX. Response to Issue 9................................................................................. 14
ii

X. Response to Issue 10................................................................................ 15

XI. Additional Issues..................................................................................... 15

Conclusion .............................................................................................................. 16

Prayer...................................................................................................................... 16

Certificate of Word Count Compliance .................................................................. 17

Certificate of Service .............................................................................................. 18
iii

INDEX OF AUTHORITIES

Cases

Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (Tex. 1950).................... 13

All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723 (Tex. App.—Fort 

Worth 2003, no pet.)............................................................................................. 9

Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979).................................................... 5

Barbee v. Barbee, No. 12-09-001510-CV (Tex. App.—Tyler 2010, no pet.).......... 6

Caldwell v. Barnes, 975 S.W.2d 535 (Tex. 1998).................................................. 10

French v. Brown, 424 S.W.2d 893 (Tex. 1967)........................................................ 5

Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010).................................. 4

Garza v. Attorney Gen., 166 S.W.3d 799 (Tex. App.—Corpus Christi 2005, no 

pet.) ....................................................................................................................... 4

Henslee v. State, 375 S.W.2d 474 (Tex. Civ. App.—Dallas 1963, writ ref'd n.r.e.) 1

In Re Attorney General, 184 S.W.3d 925 (Tex. App.—Beaumont 2006, orig. 

proceeding) ......................................................................................................... 12

In re Pollo Gordo, Inc., 373 S.W.3d 107 (Tex. App.—San Antonio 2012, no pet.) 

(original proceeding)............................................................................................. 4

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) ...................................... 16

Martinez v. Wilber, 810 S.W.2d 461 (Tex. App.—San Antonio 1991, writ denied)9
iv

McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414 (Tex. App.—Houston [1st Dist.] 

1992, writ denied)............................................................................................... 14

Nelson v. Chaney, 193 S.W.3d 161 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

............................................................................................................................. 12

Republic Underwriters Ins. v. Mex.-Tex., Inc., 150 S.W.3d 423 (Tex. 2004)........ 15

Ross v. Nat'l Ctr. for the Employment of the Disabled, 197 S.W.3d 795 (Tex. 2006)

............................................................................................................................. 10

Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840 (Tex. 1979) .... 1

Spigel v. Rodriguez, 13-97-855-CV, 1999 WL 34973400 (Tex. App.—Corpus 

Christi May 27, 1999, no pet.).............................................................................. 9

State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463 (Tex. 1989)....................... 5

Temple v Archambo, 161 S.W.3d 217 (Tex. App.—Corpus Christi—Edinburg 

2005, no pet.) ...................................................................................................... 13

Tice v. City of Pasadena, 767 S.W.2d 700 (Tex. 1999) ........................................... 5

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)....................................................... 4

Statutes

Tex. Fam. Code § 82.042.......................................................................................... 7

Tex. Fam. Code § 82.043.......................................................................................... 7

Tex. Fam. Code § 82.043(d)..................................................................................... 7

Tex. Fam. Code § 84.004(a) ................................................................................... 11
v

Rules

Tex. R. App. P. 33................................................................................. 7, 8, 9, 12, 14

Tex. R. App. P. 38.1.................................................................................. 6, 8, 10, 15

Tex. R. App. P. 38.9(b)........................................................................................... 15

Tex. R. Civ. P. 329b(f).............................................................................................. 5
vi

STATEMENT OF THE CASE

Nature of the case: Bill of review proceeding filed by former husband 

challenging a family violence protective order. (CR 4, 17).

Former wife alleged that former husband was ineligible for 

relief by bill of review because he had failed to exhaust his 

appellate remedies. (CR 14). 

Course of 

proceedings:

The trial court found that former husband had not met his 

burden to show that he exercised due diligence in pursuing 

his appellate remedies to be entitled to relief by bill of 

review. (CR 88)

Trial court 

disposition:

The trial court denied former husband’s petition for bill of 

review and awarded former wife a judgment for attorney’s 

fees. (CR 88).

STATEMENT REGARDING ORAL ARGUMENT

Appellee, Barbara Lancaster, respectfully requests the opportunity to present 

oral argument. Oral argument would significantly aid the Court in deciding this 

case by providing additional explanation of the facts and issues presented. See Tex. 

R. App. P. 38.1(e); 39.1(d).
1

Appellee, Barbara Lancaster, submits this brief in response to Appellant’s 

Brief and asks this Court to affirm the trial court’s judgment. In support, Appellee

offers as follows:

STATEMENT OF FACTS

Appellee objects to Appellant’s statement of facts and appendices cited 

therein to the extent that the appendices do not appear in the trial court’s record. If 

the appendices do not also appear in the trial court’s record, they are outside the 

scope of this appeal and cannot be reviewed by this Court. Sabine Offshore Serv., 

Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979). Appellee asks that 

they be stricken and that they be given no consideration. See Henslee v. State, 375 

S.W.2d 474, 476 (Tex. Civ. App.—Dallas 1963, writ ref'd n.r.e.). 

A. Factual Background

Barbara Lancaster and David Lancaster were divorced in 2012. 

On September 4, 2009, David was served with a Barbara’s application for a 

family violence protective order. (CR 90). 

On September 9, 2009, a hearing was held on the application for protective 

order in Cause No. 2009-53749 in the 247th Judicial District Court of Harris 

County, Texas. (CR 90). David did not appear at the hearing. (CR 90). The trial 

court rendered a default protective order against him. (CR 90). 
2

In mid-October 2009, David was served with notice of the September 9, 

2009 default protective order. (CR 90). (This was more than 20 but less than 90 

days after the judgment was signed.) (CR 91). 

Two days after being served with notice of the default protective order, 

David hitchhiked to Louisiana. (CR 90).

David did not file any post-judgment motions after receiving notice of the 

default protective order. (CR 90). David did not file a direct appeal of the default 

protective order. (CR 91). 

David was twice convicted of violating the default protective order. (CR 91). 

On August 30, 2012, the 280th Judicial District court issued a second 

protective order (“the 2012 protective order”) in 2002-45815, based on the two 

prior violations of the default protective order. (CR 91).

David filed his Original Petition for Bill of Review on January 28, 2013, 

challenging the default protective order on which the 2012 protective order is 

based. (CR 4). Barbara filed an answer to the bill of review asserting laches and 

failure to exhaust other remedies. (CR 14).

David did not file a motion for new trial in the bill of review action.

David requested findings of fact and conclusions of law on June 17, 2014.

Findings were signed by the trial court on August 11, 2014. (CR 90).
3

B. Appellate Procedural History

i. Direct appeal of the 2012 protective order 

David filed a direct appeal of the 2012 protective order. On June 25, 2013, 

this Court affirmed the order of the trial court. See David Lancaster v. Barbara 

Lancaster, No. 01-12-00909-CV (Tex. App.—Houston [1st Dist.] June 25, 2013).

ii. Mandamus and Writ of Prohibition

David filed a petition for writ of mandamus under No. 01-14-00985-CV and 

a petition for writ of prohibition under No. 01-14-00986-CV. In an opinion dated 

February 10, 2015, this Court (1) dismissed the petition for writ of prohibition 

upon David’s motion and (2) denied David’s petition for writ of mandamus 

because he did not file the order of which he complained. In re David Lancaster, 

No. 01-14-00985-CV and No. 01-14-00986-CV (Tex. App.—Houston [1st Dist.] 

Feb. 10, 2015).

SUMMARY OF THE ARGUMENT

The only issue in this appeal is whether the trial court acted within its 

discretion when it denied David’s petition for bill of review. In his brief, David 

does not challenge the trial court’s findings of fact that the default judgment 

rendered against him was due at least in part to his own fault and negligence when 

he hitchhiked out of town instead of filing a motion for new trial or appeal of the 

order. (CR 90). Rather, David attempts to argue that the 2009 protective order and 
4

all attendant circumstances were part of a conspiracy perpetrated against him by 

his ex-wife, prosecutors, judges, lawyers, family pastors and clergy, clerks, 

sheriffs, deputies, and process servers. 

To overrule all issues in this case, this Court need only look to the 

unchallenged findings of fact and conclusions of law indicating that the trial court 

was well within its discretion when it denied David’s petition for bill of review. 

(CR 90).

ARGUMENT AND AUTHORITIES

I. Standard of Review

A trial court’s ruling on a bill of review is reviewed under an abuse of 

discretion standard. In re Pollo Gordo, Inc., 373 S.W.3d 107, 110 (Tex. App.—San 

Antonio 2012, no pet.) (original proceeding). An abuse of discretion occurs when 

there is a “clear failure by the trial court to analyze or apply the law correctly.” 

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). When reviewing a trial 

court’s ruling on a bill of review, “[i]f the record supports the trial court’s 

evidentiary findings, the reviewing court is not at liberty to disturb them.” Garza v. 

Attorney Gen., 166 S.W.3d 799, 808 (Tex. App.—Corpus Christi 2005, no pet.).

A bill of review is an equitable proceeding to set aside a judgment that is no 

longer appealable or subject to a motion for new trial. Frost Nat’l Bank v. 

Fernandez, 315 S.W.3d 494, 504 (Tex. 2010); see Tex. R. Civ. P. 329b(f). The 
5

purpose of the bill of review proceeding is to prevent a manifest injustice. French 

v. Brown, 424 S.W.2d 893, 895 (Tex. 1967). Rule 329b(f) states, “on expiration of 

the time within which the trial court has plenary power, a judgment cannot be set 

aside by the trial court except by bill of review for sufficient cause.” Tex. R. Civ. 

P. 329b(f). 

Rule 329b(f) does not define sufficient cause. Generally speaking, however, 

the Texas Supreme Court has set out the procedural steps necessary for a bill of 

review proceeding. State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464-65 

(Tex. 1989). To prevail on a bill of review, a petitioner must allege and prove: 

(1) the existence of a meritorious defense to the claim supporting the judgment; 

(2) which he was prevented from asserting by fraud, accident, or the wrongful act 

of the opposing party; (3) unmixed with any fault or negligence of his own. Baker 

v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The fact that an injustice has 

occurred is not sufficient standing alone to justify relief by bill of review. In re 

Office of the Attorney General, 276 S.W.3d 611, 618-20 (Tex. App.—Houston [1st 

Dist.] 2008, pet. struck) (orig. proceeding).

A petitioner for a bill of review is not entitled to relief unless he has 

exhausted all other remedies available under Texas law at the time he filed the bill 

of review. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1999). For 
6

example, a petitioner is not entitled to relief by bill of review if he could have, but 

did not, file a motion to reinstate, a motion for new trial or a direct appeal. Id.

II. Response to Issues 1 and 2

In his first issue, Appellant complains that the trial court abused its 

discretion by issuing a temporary ex parte protective order under Texas Family 

Code 82.009 and 83.001. In his second issue, Appellant claims that the court 

abused its discretion by issuing a “temporary protective order” outside of the 

strictures of chapter 84 of the Texas Family Code. 

The trial court in this case did not render the orders Appellant complains of

in Issues 1 and 2. Rather, this Court denied Appellant’s petition for bill of review, 

determining that he did not exercise due diligence to exhaust his appellate 

remedies and did not show that the default judgment was not rendered as the result 

of his own fault or negligence. (CR 90).

Moreover, it is not clear what action or order Appellant is actually 

complaining of. There are no references to the record contained in the argument for 

these issues. David has waived these issues due to inadequate briefing. Tex. R. 

App. P. 38.1. 

The failure to hold the hearing within 14 days does not render a protective 

order void or voidable. Barbee v. Barbee, No. 12-09-001510-CV (Tex. App.—

Tyler 2010, no pet.). In Barbee, the Court of Appeals pointed out that there are no 
7

specific consequences for the failure to comply with the 14-day limit in filing the 

final protective order. To the extent that David is correct that the trial court did not 

meet the 14-day limit, that is not fatal to the protective order. 

Appellant complains that the delay in issuing the order resulted in lack of 

notice to him. Section 82.043 makes clear that service of notice of the application

is not required before a temporary ex parte protective order can be issued under 

Texas Family Code Chapter 83. See Tex. Fam. Code § 82.043(d).

This point of error is not properly before this Court. The only issue in this 

appeal is whether the trial court properly denied David’s petition for bill of review. 

Appellant did not raise this issue in the trial court and it is therefore waived. Tex. 

R. App. P. 33.

III. Response to Issue 3

In Issue 3, Appellant claims that the applicant and clerks delayed in issuing 

citation. Appellant has waived this issue because he failed to exhaust his legal 

remedies to appeal the 2009 order. (CR 90). 

Article 2.21 of the Code of Criminal Procedure is not applicable to this case. 

The issuance of notice of application is controlled by Tex. Fam. Code § 82.042. 

Service of notice of the application is controlled by Tex. Fam. Code § 82.043.

This point of error is not properly before this Court. The only issue in this 

appeal is whether the trial court properly denied David’s petition for bill of review. 
8

Appellant did not raise this issue in the trial court and it is therefore waived. Tex. 

R. App. P. 33. Moreover, it is not clear what action or order Appellant is actually 

complaining of. There are no references to the record contained in the argument for 

this issue. David has waived these issues due to inadequate briefing. Tex. R. App. 

P. 38.1.

IV. Response to Issue 4

In his fourth issue, Appellant complains that a Harris County Constable 

failed to attempt to serve the notice of application. He also alleges “official 

oppression” and “neglect of duty.” 

David’s allegations of impropriety and conspiracy are not supported by the 

record. See Appellant’s Brief at 5-6. Appellant asks that these allegations be 

stricken. 

This point of error is not properly before this Court. The only issue in this 

appeal is whether the trial court properly denied David’s petition for bill of review. 

Appellant did not raise this issue in the trial court and it is therefore waived. Tex. 

R. App. P. 33. Moreover, it is not clear what action or order Appellant is actually 

complaining of. There are no references to the record contained in the argument for 

this issue. Authority is quoted without any discussion about how it relates to the 

case. David has waived these issues due to inadequate briefing. Tex. R. App. P. 

38.1.
9

V. Response to Issue 5

In Issue 5, Appellant complains that he had defective notice of the 2009 

hearing on the protective order.

All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 725 (Tex. 

App.—Fort Worth 2003, no pet.) does not support Appellant’s position. That case 

stands for the proposition that defect of service can be raised for the first time on 

appeal. But unlike this case, the appellant filed a timely appeal after a default 

judgment was entered against him. 

Neither Spigel v. Rodriguez, 13-97-855-CV, 1999 WL 34973400, at *2 (Tex. 

App.—Corpus Christi May 27, 1999, no pet.) nor Martinez v. Wilber, 810 S.W.2d 

461, 463 (Tex. App.—San Antonio 1991, writ denied) support Appellant’s 

position. In Spigel, the appellant timely appealed. In Martinez, the appellant filed a 

timely appeal. Spigel was a restricted appeal. In this case, Appellant did not file a 

bill of review or a timely appeal. David’s complete failure to exhaust his appellate 

remedies is fatal to his petition for bill of review.

This point of error is not properly before this Court. The only issue in this 

appeal is whether the trial court properly denied David’s petition for bill of review. 

Appellant did not raise this issue in the trial court and it is therefore waived. Tex. 

R. App. P. 33. Moreover, it is not clear what action or order Appellant is actually 

complaining of. There are no references to the record contained in the argument for 
10

this issue. Authority is quoted without any discussion about how it relates to the 

case. David has waived these issues due to inadequate briefing. Tex. R. App. P. 

38.1.

VI. Response to Issue 6

In Issue 6, Appellant claims that his constitutional rights were violated 

because of inadequate service of the 2009 application. 

Appellant cites Caldwell v. Barnes to support this position that he need not 

show lack of negligence to be entitled to relief by bill of review. Caldwell v. 

Barnes, 975 S.W.2d 535, 537 (Tex. 1998). Caldwell does not support Appellant’s

position. Caldwell involved a complete lack of service. By contrast, David was 

served. He admits to having been served on September 4, 2009. 

In Ross v. Nat'l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 

796 (Tex. 2006), the appellant was never served. Rather, he found out about the 

default judgment via a postcard. The bill of review was denied by the trial court 

and affirmed by the court of appeals. But the Supreme Court reversed the court of 

appeals, holding that “trial court had no jurisdiction either to enter judgment or to 

enforce it against a party who had neither been properly served nor appeared.” 

Ross, 197 S.W.3d at 796-97. Unlike the appellant in Ross, David was served on 

September 4, 2009.
11

Appellant’s reliance on Tex. Fam. Code § 84.004 is misplaced. That section, 

which extends the hearing date if a notice of application is served within 48 hours 

of the hearing, does not support David’s argument for several reasons: (1) he was 

served more than 48 hours before the hearing; (2) the section puts the obligation on 

the respondent to the application to request the continuance. Tex. Fam. Code § 

84.004(a). Moreover, the section clearly provides that the respondent is not entitled 

to additional process. Clearly, the legislature intended that respondents could be 

served within 48 hours and afforded respondents additional time to defend against 

allegations upon proper request. But a respondent is not entitled to additional 

process, so David would have had to actually show up at the hearing [[rather than 

getting on his motorcycle to go to New Orleans or wherever he went.] Section

84.004 affirms that service even within 48 hours is sufficient “service” and notice 

to apprise a respondent of the pendency of the action and an opportunity to present 

their objections. 

Appellant asserts that the trial court had an obligation to ascertain whether or 

not he had been served prior to issuing a no-answer default. None of Appellant’s 

authority supports his position that being served on a Friday means he cannot be 

held in default on at a hearing.

This point of error is not properly before this Court. The only issue in this 

appeal is whether the trial court properly denied David’s petition for bill of review. 
12

Appellant did not raise this issue in the trial court and it is therefore waived. Tex. 

R. App. P. 33.

VII. Response to Issue 7

Appellant’s Issue 7 complains that the prosecution in the 2009 case violated 

his due process rights. This point of error is not properly before this Court because 

this is not a direct attack on the 2009 default judgment. The only issue in this 

appeal is whether the trial court properly denied David’s petition for bill of review. 

Appellant did not raise this issue in the trial court and it is therefore waived. Tex. 

R. App. P. 33.

David claims Barbara’s testimony was false and the ADA deliberately failed 

to tell the court all the information about the false allegations. David appears to 

rely on these allegations to show fraud on the part of Barbara and the ADA. The 

courts have held that the mere existence of false testimony will not meet the 

burden of making a prima facie case for bill of review. In Re Attorney General, 

184 S.W.3d 925, 928-29 (Tex. App.—Beaumont 2006, orig. proceeding); Nelson 

v. Chaney, 193 S.W.3d 161, 167 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In 

Nelson, a mother lied about the identity of her child’s father and that was held not 

to be extrinsic fraud, but rather intrinsic. Id. The First Court of Appeals in Nelson

explained: “‘intrinsic fraud’ relates to matters that could have been litigated in the 

initial action, including fraudulent instruments and perjured testimony.” Id. A bill 
13

of review requires extrinsic fraud, which is defined as wrongful conduct outside 

the trial that prevents a losing party from fully litigating rights or defenses. Temple 

v Archambo, 161 S.W.3d 217, 224 (Tex. App.—Corpus Christi—Edinburg 2005, 

no pet.). Nothing prevented David from litigating except David’s own negligence 

of not showing up for the protective order trial.

Similarly, in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (Tex. 

1950), the defendant was sued for damages when a mule caused an accident. Mr. 

Hegedorn, the defendant, could have proved the offending mule did not even 

belong to him. Id. at 997-98. Hagedorn filed a bill of review, and claimed that the 

plaintiff himself knew that he did not own the mule in question. Id. The Supreme 

Court of Texas denied the bill of review because Hagedorn could not prove that he 

was prevented from making his defense by any fraud or wrongful act by the 

plaintiffs. 

David claims he only figured out the “long term consequences” of the 

protective order after he was charged with another violation, for which he was 

convicted. And therefore his due process rights of “future liberty and freedom” 

have been violated. But David was put on notice by the very nature of the 2009 

protective order proceeding that he had an opportunity to defend himself against 

the allegations. Whether he bothered to figure out the consequences of the 

protective order or not is simply not relevant. 
14

David had adequate legal remedies available after the 2009 default judgment 

but he failed to exhaust them prior to filing his bill of review. David could have 

filed a motion for new trial or a direct appeal of the 2009 protective order. His 

failure to do so precluded the relief he sought.

VIII. Response to Issue 8

Appellant’s Issue 8 complains that there were defects in the return of service 

in the underlying 2009 protective order case. This point of error is not properly 

before this Court because this is not a direct attack on the default judgment. The 

McGraw-Hill case does not support Appellant’s position because it involved a 

direct attack on a default judgment. See McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 

414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied). The only issue in this 

appeal is whether the trial court properly denied David’s petition for bill of review. 

The trial court found that David was not entitled to that relief in part because he 

did not make a direct attack on the bill of review. Moreover, Appellant did not 

raise this issue in the trial court and it is therefore waived. Tex. R. App. P. 33. 

IX. Response to Issue 9

Appellant’s Issue 9 argues that all actions taken by any court following the 

September 9, 2009 protective order are void. This is an appeal of the bill of review 

matter. Appellant provides no authority for his position that this Court can review 

the actions taken by other courts because of the 2009 protective order. The only 
15

issue before this Court is whether the trial court properly denied David’s petition 

for bill of review. If an appellant does not properly support an issue raised in the 

brief, the issue is waived. Republic Underwriters Ins. v. Mex.-Tex., Inc., 150 

S.W.3d 423, 427 (Tex. 2004). This Court has already affirmed the 2012 protective 

order, denied the petition for writ of mandamus, and dismissed the writ of 

prohibition. Because Appellant has failed to show that the 2009 protective order is 

void, this multifarious issue should be overruled.

X. Response to Issue 10

Appellant’s Issue 10 purports to incorporate arguments from his petition for 

writ of mandamus (No. 01-14-00985-CV). This Court denied his petition on 

February 10, 2015. No motion for rehearing was filed. Appellant has waived 

review of these issues on appeal by failing to brief them. Tex. R. App. P. 38.1. 

Because the points for review have been overruled by denial of the petition for writ 

of mandamus, Appellee will not respond to them here. Should this Court wish to 

consider those points on appeal despite Appellant’s failure to brief them, Appellee 

requests the opportunity to respond prior to a ruling. Tex. R. App. P. 38.9(b).

XI. Additional Issues

Appellant states that the Court did not have plenary power when it granted 

appellate attorney’s fees to him in this case. (See Appellant’s Brief at p. xxi). This 

is incorrect. The intervention action filed by Diane St. Yves prevented the order 
16

denying the bill of review from becoming a final order because it did not dispose 

of all issues in the suit. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 

2001). Thus, when the trial court still had plenary power when it awarded appellate 

attorney’s fees to Barbara on December 15, 2014. 

CONCLUSION 

The trial court did not abuse its discretion by denying David Lancaster’s bill 

of review. Barbara Lancaster respectfully requests that this Court overrule all 

points of error raised by David and affirm the judgment of the trial court. 

PRAYER

Barbara Lancaster, Appellee, respectfully prays that the Court will overrule 

all issues raised by Appellant and affirm the trial court’s judgment.
17

Respectfully submitted,

/s/ Mary K. Quinn

LAW OFFICE OF MARY K. QUINN

Mary K. Quinn

State Bar No. 164363250

1314 Texas Avenue, Suite 1515

Houston, Texas 77002

Tel: (713) 225-0094 | Fax: (713) 225-0099

maryquinn@maryquinnlaw.com

LAW OFFICE OF JANICE L. BERG

Janice L. Berg

State Bar No. 24064888

1314 Texas Avenue, Suite 1515

Houston, Texas 77002

Tel: (713) 993-9100 | Fax: (713) 225-0099

janice@janiceberglaw.com

ATTORNEYS FOR APPELLEE

CERTIFICATE OF WORD COUNT COMPLIANCE

Pursuant to Rule 9.4, I hereby certify that the number of words in this 

document—exclusive of caption, identity of parties and counsel, statement 

regarding oral argument, table of contents, index of authorities, statement of the 

case, statement of issues presented, statement of jurisdiction, signature, proof of 

service, certification, certificate of compliance and appendix is—4,888. 

/s/ Mary K. Quinn

Mary K. Quinn
18

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing served on all counsel of 

record in accordance with the Texas Rules of Appellate Procedure on April 8, 

2015. 

/s/ Mary K. Quinn

Mary K. Quinn