No Citation in the Court's file, no Valid Service based merely on Affidavit of Process Server, no Valid Default Judgment

Garcia v. Ennis, No. 02-17-00282-CV (Tex.App.- Fort Worth, Jun. 28, 2018) (reversing trial court's denial of bill-of-review relief against default judgment for failure to strictly comply with rules of civil procedure governing service of process and remanding for further proceedings on the merits of the underlying claim).

In 2011 the Texas Supreme Court changed the rules governing the processing of citations and proof of service to require the clerk to place a copy of the citation in the case file and permit proof of service (return of service) by affidavit of a private process server (or declaration under penalties of perjury in lieu of affidavit) as opposed to return of the executed citation itself, which was previously required to be on file for ten days before a default judgment could be granted. Construing the interplay of the rules governing citation and proof of service as amended, the Fort Worth Court of Appeals recently held in an appeal from a bill-of-review proceeding (the functional equivalent of a FRCP rule 60 motion for relief from a judgment that is no longer appealable in Texas state courts) that absence of the citation in the file was a fatal defect, that therefore the trial court had not acquired personal jurisdiction over the defendant, and that the default judgment entered against her was therefore invalid. The court reversed the trial court's denial of bill-of-review relief, vacated the default judgment, and remanded the case to the trial court for trial on the merits of the underlying claim. It was a personal injury case, but that does not appear to limit the scope of the ruling on the validity of service of process on the defendant. 

LETICIA C. GARCIA, Appellant,
v.
PRESTON R. ENNIS, Appellee.

No. 02-17-00282-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: June 28, 2018 

Appeal from County Court AT Law NO. 1 of Tarrant County Trial Court NO. 2014-002225-1-A.

PANEL: MEIER, PITTMAN, and BIRDWELL, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

Appellant Leticia C. Garcia filed a petition for bill of review to set aside a default judgment in favor of Appellee Preston R. Ennis and, later, a motion for summary judgment, in which she argued that as a matter of law, Ennis had failed to serve her in strict compliance with the rules governing service of process, rendering the default judgment void for want of personal jurisdiction. The trial court denied the motion and included finality language in its order. Garcia appeals. Because the record fails to show strict compliance with the rules of civil procedure, we will reverse.

II. BACKGROUND

Ennis sued Garcia after the two were involved in an automobile collision.^[1] A private process server signed a return of service swearing that on May 30, 2014, he personally served Garcia with both the original petition and a citation. The return was filed with the court, unattached to the citation. See Tex. R. Civ. P. 107(a) ("The return may, but need not, be endorsed on or attached to the citation.").

In November 2015, after Garcia had failed to file an answer or to make an appearance, the trial court signed a default judgment in favor of Ennis, awarding him damages in the amount of $171,852.57. Although rule of civil procedure 99(a) required the court clerk to retain a copy of the citation in the court's file, see Tex. R. Civ. P. 99(a), when the trial court signed the default judgment, its file did not contain a copy of the citation.

In August 2016, Garcia filed her original petition for bill of review. She pleaded that the default judgment should be set aside and a new trial ordered because "there [was] no copy of the citation issued to Garcia in the Court's file, even though Rule 99(a) explicitly required same. Absent a copy of the very citation allegedly served on Garcia and giving the trial court personal jurisdiction over her, the face of the record fails to affirmatively show strict compliance with the requirements of Rules 99 or 107." On October 3, 2016, just ten days before filing his answer, Ennis filed a copy of the citation that was served on Garcia back in May 2014 but that was missing from the court's file when it signed the default judgment.

Garcia later moved for summary judgment on the same ground that she pleaded in her petition—the default judgment was void because the court's file did not contain a copy of the citation that was issued to Garcia. Ennis responded that summary judgment was improper (1) because he had fully complied with amended rule of civil procedure 107, which permits a trial court to grant a default judgment so long as "proof of service as provided by this rule" has been on file for ten days and the return of service has been on file for the requisite period of time; (2) because the clerk's clerical error in not retaining a copy of the citation as required by rule 99(a) did not otherwise render the service improper; and (3) because the record as a whole, including the late-filed citation, showed that Garcia was properly served with citation. The trial court denied Garcia's motion and stated that its order was "a final judgment, disposing of all parties and all claims, and is appealable."^[2]

III. GARCIA ENTITLED TO SUMMARY JUDGMENT

Garcia identifies four issues, but they essentially restate the same ground four different ways: The trial court erred by denying her motion for summary judgment because, there being no copy of the citation issued to her in the court's file when it granted the default judgment, the record fails to affirmatively show strict compliance with the rules of civil procedure—in particular, rule 99(a)— rendering the default judgment void. In addition to (and as a direct result of) the complete absence of the citation contrary to rule 99(a), Garcia notes that the trial court had no way to confirm whether the citation complied with the citation form requirements contained in rule of civil procedure 99(b), which the omission of any one would render citation defective.^[3]

Ennis responds that the record shows strict compliance with the rules of civil procedure. Like he argued in his summary-judgment response, Ennis contends that rule of civil procedure 99 is irrelevant, that rule 107 "is the only Texas Civil Procedure Rule . . . that provides rules for this issue directly," and that the return, which was on file when the trial court granted the default judgment, met all of rule 107's requirements. Ennis stresses that it was the clerk's fault, not his, that the court's file did not contain a copy of the citation when the default judgment was granted, and he posits that the trial court could have relied upon the late-filed citation to confirm strict compliance with the rules in the original suit because "[r]ule 99(a) has absolutely no time limit or duration period regarding when or how long the citation needs to be on file."

A. Standard of Review

We review a traditional summary judgment de novo. Valence Operating Co. v. Dorsett,164 S.W.3d 656, 661 (Tex. 2005). The issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 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, 289 S.W.3d at 848.

B. Bill of Review and Strict Compliance

A bill of review is a direct attack on a judgment that is no longer appealable or subject to a motion for new trial. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003),cert. denied, 541 U.S. 1030 (2004). Filed in the same court that rendered the original judgment, a bill-of-review plaintiff must ordinarily plead and prove (1) a meritorious claim or defense to the judgment, (2) that the plaintiff was prevented from making by the fraud, accident, or wrongful act of her opponent, and (3) unmixed with any fault or negligence on the plaintiff's own part. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). But when the plaintiff claims a due process violation for no service, like Garcia does here, she is relieved of proving the first two elements, and the third element is conclusively established if the plaintiff can prove that service of process was invalid. Id.; Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).

It is axiomatic that a trial court must have personal jurisdiction over a party to issue a binding judgment. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). In a direct attack on a default judgment, there are no presumptions in favor of valid service of process. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Strict compliance with the rules governing issuance, service, and return of citation is mandatory. Id. Failure to affirmatively show strict compliance with the rules of civil procedure renders the attempted service of process invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); see In re Z.J.W., 185 S.W.3d 905, 908 (Tex. App.-Tyler 2006, no pet.) ("We iterate that `strict compliance' means literal compliance with the rules."); Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.-Texarkana 2004, no pet.) ("Virtually any deviation from the statutory requisites for service of process will destroy a default judgment."). Stated otherwise, absent an appearance or waiver, the trial court does not have personal jurisdiction to enter the default judgment against the defendant unless the record affirmatively shows, "at the time the default judgment is entered," proper service of citation on the defendant. Marrot Commc'ns, Inc. v. Town & Country P'ship, 227 S.W.3d 372, 376 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).

C. No Citation, No Strict Compliance

In December 2011, the supreme court amended rule of civil procedure 107(h) to remove the requirement that the citation be on file for ten days before a default judgment is granted. Misc. Docket No. 11-9250, 75 Tex. B.J. 56, 57 (1990, amended 2012). Amended rule 107(h) states, "No default judgment shall be granted in any cause until proof of service as provided by this rule . . . shall have been on file with the clerk of the court ten days. . . ." Tex. R. Civ. P. 107(h). Seizing upon this change, Ennis asserts that "Rule 107 was specifically altered and changed in 2012 to leave off the requirement that a `citation' be on file prior to the default judgment being rendered." Having otherwise complied with the requirements of rule 107, which he contends applies to the exclusion of all other rules because Garcia complains of only "improper service," Ennis reasons that he strictly complied with the rules governing service. 

Garcia's premise—that the trial court may grant a default judgment without a copy of the citation on file, so long as the plaintiff otherwise complies with rule 107—misconstrues the 2011 amendment to rule 107(h).

When construing rules of civil procedure, we apply the same rules of construction that we use when interpreting statutes. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007). When construing statutes, it is well established that we must consider the words in context, not in isolation. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556,XXXXXXXXX (Tex. 2014); State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A court should not assign a meaning to a statutory provision that would be inconsistent with other provisions of the same act, even though it might be susceptible to such a construction standing alone. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

In the very same order that it amended rule 107(h), the supreme court amended rule 107(a) to remove the requirement that the return be endorsed on or attached to the citation, now providing that "[t]he return may, but need not, be endorsed on or attached to the citation." Misc. Docket No. 11-9250, 75 Tex. B.J. 56, 57 (emphasis added). This change divorced the citation from the return of service, but the supreme court ensured that the citation would nevertheless make its way into the court's file by also amending rule 99(a) to require that "[t]he clerk must retain a copy of the citation in the court's file." Id. at 57 (emphasis added). Construed in context, instead of in isolation, the change to rule 107(h) doing away with the requirement that the citation be on file for ten days before the trial court grants a default judgment was necessary to align rule 107(h) with the amendments to rules 107(a) and 99(a) altering the manner in which the citation becomes a part of the trial court's file. Contrary to Ennis's implication then, that the citation no longer need be on file for ten days before a default judgment is granted, does not mean that the citation need not be on file at all before a default judgment is granted. 

This ties in to the next point. "Strict compliance" means compliance with all of the rules of civil procedure governing service of process, not just with one of them. See Primate Constr., 884 S.W.2d at 152. Rule 99(a) is no less important to achieving strict compliance with the rules than is rule 107. Strict compliance with rule 99(a) cannot be shown when the court's file does not contain a copy of the citation.

A missing citation also raises other problems. Before granting a default judgment, and with no copy of the citation on file, the trial court could not have confirmed that the citation contained the information required by rule 99(b). See Tex. R. Civ. P. 99(b). Courts have concluded that strict compliance was not shown when the citation failed to include the information required by rule 99(b). See, e.g., Montgomery v. Hitchcock, No. 03-14-00643-CV, 2016 WL 3068219, at *2 (Tex. App.-Austin May 25, 2016, no pet.) (mem. op.) (rule 99(b)(4)); Midstate Envtl. Servs., LP v. Peterson, 435 S.W.3d 287, 290 (Tex. App.-Waco 2014, no pet.) (rules 99(b)(2) and (8)); Mansell v. Ins. Co. of the West,203 S.W.3d 499, 501 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (rule 99(b)(4)). It follows that if strict compliance cannot be shown when just one of the items required by rule 99(b) is missing, then the complete absence of the entire citation—and the inability to confirm that the citation contains any of the information required by rule 99(b)—surely renders service invalid as well.

Ennis argues that the burden shifted to the clerk to file the citation after he fulfilled his responsibility to serve Garcia, but the supreme court clarified years ago that the ultimate responsibility for ensuring that service is properly reflected in the record lies with the party requesting service. See Primate Constr., 884 S.W.2d at 153; see also Nelson v. Nelson, No. 14-16-00602-CV, 2017 WL 2484378, at *3 (Tex. App.-Houston [14th Dist.] June 8, 2017, no pet.) (mem. op.) (rejecting argument that clerk was at fault for defective service). Confirming that service is properly reflected in the record includes confirming that the citation is on file when the trial court grants a default judgment.

We also disagree with Ennis that the trial court could have considered the late-filed citation in determining whether Ennis strictly complied with the rules of civil procedure. Houston's First Court of Appeals considered a similar issue in Marrot Communications.There, Marrot argued that the trial court had erred by denying its motion for new trial because the record contained no evidence that Town & Country had used reasonable diligence in attempting to serve Marrot's registered agent before substituting service on the Secretary of State. Marrot Commc'ns, 227 S.W.3d at 376 (citing Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 34 (Tex. App.-Houston [1st Dist.] 2003, no pet.)(explaining that plaintiff must establish, before resorting to substitute service on Secretary of State, that it used reasonable diligence in seeking service on registered agent of corporation)). Town & Country countered that a post-judgment affidavit that it had filed in response to Marrot's motion for new trial demonstrated the required diligence, but Marrot responded that the affidavit could not be considered because it was not part of the record when the default judgment was entered. Id. at 377.

The court of appeals agreed with Marrot. Id. at 378201279. It acknowledged that unlike in a restricted appeal, in which review is limited to error apparent on the face of the record, when a default judgment is attacked by a motion for new trial or by a bill of review, the parties may introduce evidence in the form of affidavits, depositions, testimony, and exhibits to address the Craddock^[4] or bill-of-review elements, i.e, "to explain what happened." Id. at 379 (quoting Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006)). 

However, the critical issue in the appeal was not why Marrot did not appear but whether service upon Marrot was defective, a matter that could only be resolved by reviewing the record as it existed at the time the default judgment was entered. Id. ("As noted above, unless the record affirmatively shows `at the time the default judgment is entered' an appearance by the defendant, proper service of citation, or a written memorandum of waiver, a trial court does not have in personam jurisdiction to enter the default judgment."). The court thus concluded, "Because [the] affidavit was not part of the record until after the trial court signed the default judgment, we cannot consider [it] as proper evidence of reasonable diligence prior to seeking substituted service on the Secretary of State." Id. at 378.

The distinction drawn by the First Court makes perfect sense. There is a difference between submitting evidence for or against the bill-of-review elements to show why a bill of review should or should not be granted and submitting evidence to fill a gap that existed in the record when the trial court granted the default judgment in an effort to show that the trial court properly granted the default judgment. See CSR Ltd., 925 S.W.2d at 594 ("A court must possess both subject matter jurisdiction over a case and personal jurisdiction over a party to issue a binding appeal."). Ennis's late-filed citation falls into the latter category, and the trial court could not have considered it in ruling on the motion for summary judgment. See Marrot Commc'ns, 227 S.W.3d at 378-79.

Finally, impliedly advocating for a type of harmless-error approach, Ennis emphasizes that Garcia has never affirmatively denied being served, but this is not dispositive to the inquiry. "Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him." Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).

Compliance with one rule of civil procedure does not guarantee compliance with all of them, and in considering the record as it existed when it granted the default judgment—as it must under these circumstances—the trial court could not have relied in part upon a citation that was not on file until after it granted the default judgment. Garcia met her summary-judgment burden to show that she was not served in strict compliance with the rules of civil procedure as a matter of law. We sustain what we construe to be her only issue.^[5]

IV. CONCLUSION

Having sustained Garcia's issue, we reverse the trial court court's order denying her motion for summary judgment, render judgment granting Garcia's petition for bill of review and setting aside the default judgment, and remand this cause to the trial court for further proceedings. See Macs v. Lenahan, No. 04-17-00033-CV, 2018 WL 280469, at *3 (Tex. App.-San Antonio Jan. 3, 2018, no pet.) (mem. op.) (ordering similarly).

[1] Ennis also sued Jose Meza, the alleged owner of the vehicle that Garcia was driving at the time of the incident. Ennis later nonsuited his claims against Meza.

[2] Garcia does not challenge the order's language making the judgment final.

[3] Rule 99(b) states,

Form. The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under seal of court, (3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation, (11) contain address of the clerk, and (12) shall notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition. The citation shall direct the defendant to file a written answer to the plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c of this rule.

Tex. R. Civ. P. 99(b).

[4] See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392, 133 S.W.2d 124, 126 (1939).

[5] In the remainder of his brief, Ennis assumes that Garcia was properly served and proceeds to conduct both a Craddock and a full bill-of-review analysis, but having sustained Garcia's issue, we do not reach these arguments. See Tex. R. App. P. 47.1; Craddock, 133 S.W.2d at 126. 

BELOW: TEXT OF TRCP RULE 99 AS AMENDED 

RULE 99. ISSUANCE AND FORM OF CITATION
a. Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue
a citation and deliver the citation as directed by the requesting party. The party requesting
citation shall be responsible for obtaining service of the citation and a copy of the petition.
Upon request, separate or additional citations shall be issued by the clerk. The clerk must
retain a copy of the citation in the court's file.
b. Form. The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk
under seal of court, (3) contain name and location of the court, (4) show date of filing of
the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of
parties, (8) be directed to the defendant, (9) show the name and address of attorney for
plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules
require the defendant to file a written answer with the clerk who issued citation, (11)
contain address of the clerk, and (12) shall notify the defendant that in case of failure of
defendant to file and answer, judgment by default may be rendered for the relief demanded
in the petition. The citation shall direct the defendant to file a written answer to the
plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty
days after the date of service thereof. The requirement of subsections 10 and 12 of this
section shall be in the form set forth in section c of this rule.
c. Notice. The citation shall include the following notice to the defendant: "You have been
sued. You may employ an attorney. If you or your attorney do not file a written answer
with the clerk who issued this citation by 10:00 a.m. on the Monday next following the
expiration of twenty days after you were served this citation and petition, a default
judgment may be taken against you."
d. Copies. The party filing any pleading upon which citation is to be issued and served shall
furnish the clerk with a sufficient number of copies thereof for use in serving the parties to
be served, and when copies are so furnished the clerk shall make no charge for the copies.

BELOW: TEXT OF TRCP RULE 107 AS AMENDED

RULE 107. RETURN OF SERVICE
(a) The officer or authorized person executing the citation must complete a return of service.
The return may, but need not, be endorsed on or attached to the citation.
(b) The return, together with any documents to which it is attached, must include the following
information:
(1) the cause number and case name;
(2) the court in which the case is filed;
(3) a description of what was served;
(4) the date and time the process was received for service;
(5) the person or entity served;
(6) the address served;
(7) the date of service or attempted service;
(8) the manner of delivery of service or attempted service;
(9) the name of the person who served or attempted to serve the process;
(10) if the person named in (9) is a process server certified under order of the Supreme
Court, his or her identification number and the expiration date of his or her
certification; and
(11) any other information required by rule or law.
(c) When the citation was served by registered or certified mail as authorized by Rule 106, the
return by the officer or authorized person must also contain the return receipt with the
addressee's signature.
(d) When the officer or authorized person has not served the citation, the return shall show the
diligence used by the officer or authorized person to execute the same and the cause of
failure to execute it, and where the defendant is to be found, if ascertainable.
(e) The officer or authorized person who serves or attempts to serve a citation must sign the
return. If the return is signed by a person other than a sheriff, constable, or the clerk of
the court, the return must either be verified or be signed under penalty of perjury. A return
signed under penalty of perjury must contain the statement below in substantially the
following form:
AMy name is ____________________, my date of birth is _______________, and
 (First) (Middle) (Last)
my address is ________________,_____________,____________, ___________, and
 (Street) (City) (State) (Zip Code)
____________. I declare under penalty of perjury that the foregoing is true and correct.
 (Country)
Executed in ___________County, State of __________, on the _____ day of ______,
 (Month)
______.
Year
___________________________________________.
 (Declarant)
(f) Where citation is executed by an alternative method as authorized by Rule 106, proof of
service shall be made in the manner ordered by the court.
(g) The return and any document to which it is attached must be filed with the court and may
be filed electronically or by facsimile, if those methods of filing are available.
(h) No default judgment shall be granted in any cause until proof of service as provided by this
rule or by Rules 108 or 108a, or as ordered by the court in the event citation is executed by
an alternative method under Rule 106, shall have been on file with the clerk of the court
ten days, exclusive of the day of filing and the day of judgment

URL for all rules in pdf (325 pages): --> Texas Rules of Civil Procedure (Texas Judiciary Website)

Court of Appeals lectures pro se appellant on how he went wrong; - lessons are worth heeding

Here is more on how to scuttle an attack on a judgment, and how not to. An earlier blawg post highlighted the perils of filing a post-trial motion and then pursuing a restricted appeal after the deadline to file a regular appeal has passed (no-go). The excerpt below explains in detail how bill-of-review relief may -- like restricted appeal -- be unavailable if the judgment-defendant had other procedural vehicles available to attack the judgment, but did not pursue them. The particular case is a family law case (with some special wrinkles, see excerpt from motion for rehearing and PFR below) and the judgment at issue was not a default judgment, but the lessons are still worth minding: Caveat Judgment Debtor! 

WHAT IS A BILL OF REVIEW AND WHEN IS IT (NOT) AVAILABLE? 

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. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Schwartz v. Jefferson, 520 S.W.2d 881, 889 (Tex. 1975). 

A bill of review is proper where a party has exercised due diligence to prosecute all adequate legal remedies against the judgment it seeks to set aside, and at the time the bill of review is filed, no such adequate legal remedy remains available because, through no fault of the petitioner, fraud, accident, or official mistake precluded presentation of a meritorious claim. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.1999). To obtain relief by a bill of review, the petitioner must plead and prove to the trial court three elements: (1) a meritorious ground for appeal; (2) which he was prevented from making through fraud, accident, or a wrongful act of the opposing party or official mistake; (3) unmixed with any fault or negligence by the petitioner. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004); Zeigler v. Zeigler, No. 02-10-00146-CV, 2011 WL 2989003, at *2 (Tex. App.-Fort Worth July 11, 2011, no pet.) (mem. op.). The grounds upon which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. Alexander v. Hagedorn,226 S.W.2d 996, 998 (Tex. 1950); Crouch v. McGaw, 138 S.W.2d 94, 96 (Tex. 1940) (noting that a bill of review requires "something more than injustice").

We review the grant or denial of a bill of review under an abuse-of-discretion standard, indulging every presumption in favor of the trial court's ruling. Moore v. Brown, 408 S.W.3d 423, 432 (Tex. App.-Austin 2013, pet. denied). The trial court abuses its discretion if it rules in an unreasonable or arbitrary manner, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,701 S.W.2d 238, 241-42 (Tex. 1985); Morris v. O'Neal, 464 S.W.3d 801, 806 (Tex. App.-Houston [14th Dist.] 2015, no pet.). Where, as here, there are no findings of fact or conclusions of law in the record, we will "affirm the trial court's judgment on any legal theory supported by the evidence." Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex. App.-Austin 2004, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).

As stated above, a bill-of-review petitioner must have exercised due diligence in pursuing all appropriate legal remedies against the former judgment. See Wembley, 11 S.W.3d at 927. If reasonable legal remedies were available and disregarded, relief by bill of review is generally unavailable. See id. The required due diligence is separate and distinct from the bill-of-review elements. Perdue v. Patten Corp., 142 S.W.3d 596, 606 (Tex. App.-Austin 2004, no pet.). The petitioner's due diligence in pursuing available legal remedies is judged by the objective standard of what "prudent and careful men would ordinarily use in their own cases of equal importance." See In re A.L.H.C., 49 S.W.3d 911, 916 (Tex. App.-Dallas 2001, pet. denied).

The pro se appellant disagreed, -- to no avail 

The Texas Supreme Court has established that where a defendant fails to avail himself of an appeal, he is not entitled to relief by bill of review. French v. Brown,424 S.W.2d 893, 895 (Tex. 1967). In French, a contract action was disposed of by summary judgment. Alleging he did not have notice of the motion for summary judgment or its hearing setting, petitioner filed a motion for new trial, which was subsequently overruled by operation of law. The court held that a bill of review was unavailable where the petitioner had timely filed a motion for new trial but failed to appeal its denial by operation of law. Id. Similarly, in Narvaez v. Maldonado, the trial court entered a default decree of divorce that ordered Narvaez to pay child support. Narvaez, 127 S.W.3d at 316. Narvaez filed a motion for new trial that was subsequently overruled by operation of law. Id. Though evidence did not show whether the motion was timely, this Court held that Narvaez had not exercised due diligence in exhausting his legal remedies because he had not appealed the judgment after the motion was overruled by operation of law (if motion was timely filed) or pursued a restricted appeal (if not timely filed). Id. at 321. 

Similarly, in Zeigler, petitioner's motion for new trial had been granted on condition of petitioner's payment of attorneys' fees but was overruled by operation of law because the petitioner failed to pay the attorneys' fees. See Zeigler, 2011 WL 2989003, at *3. The Dallas Court of Appeals denied the petition for bill of review on the basis that the petitioner had failed to invoke his right to a new trial, allowing the judgment to become final. Id. at *1. We find these cases instructive here. "One with an available appeal who fails to pursue that remedy is not entitled to seek relief by way of a bill of review." Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980).

A motion for new trial was not required for Headifen to preserve error for appeal under Rule 324. Tex. R. Civ. P. 324. Nonetheless, Headifen filed a timely motion for new trial on June 8, extending his appellate deadlines and the plenary power of the trial court. The deadline to file a notice of appeal was therefore August 5, 90 days after the May 7 judgment was signed.^[3] See Tex. R. App. P. 26.1(a)(1). 

Headifen's motion for new trial is not in the record before us, but it is undisputed that it was overruled by operation of law on July 21. Headifen could have filed his notice of appeal while his motion for new trial was pending or between July 21 and August 5. See In re Norris, 371 S.W.3d 546, 553 (Tex. App.-Austin 2012, orig. proceeding) ("nothing in the language of rule 25.1 suggests that an appeal cannot be perfected while a motion for new trial is pending, . . . and further, rule of civil procedure 329b[(e)] contemplates just such a scenario" (citation omitted)). 

Headifen did not perfect a timely appeal and the judgment became final.

The petition for bill of review and Headifen's briefing to this Court focus on the events surrounding Headifen's motion for new trial and motion for recusal, arguing that official mistake prevented him from obtaining a timely hearing on his motion for new trial, and this in turn somehow prevented him from filing a timely appeal. But nothing in the proceedings before the trial court following the May 7 judgment precluded Headifen from filing an appeal to this Court while his motion for new trial was pending. Neither Headifen's motion for new trial nor his motion for recusal affected his access to review by an appellate court. See id. Also, Headifen cites to no authority, and we have found none, that suggests his motion for recusal tolled the deadlines for resolution of the motion for new trial or for filing a notice of appeal. Neither Headifen's petition for bill of review nor his briefing to this Court offers explanation for his failure to timely pursue the legal remedy of a direct appeal. Due to Headifen's failure to exhaust all appropriate legal remedies, he is not entitled to the equitable relief provided by a bill of review. Thus, the trial court did not abuse its discretion by denying Headifen's petition for bill of review. See Narvaez, 127 S.W.3d at 321. We therefore overrule Headifen's sole issue.

CONCLUSION

Having overruled Headifen's single issue on appeal, we affirm the judgment of the trial court.

[1] Headifen and Harker each appear before us pro se and appeared pro se at various times in the proceedings below. We are bound to apply the same substantive and procedural standards to pro se litigants as we do with litigants represented by counsel to prevent affording pro se litigants an unfair advantage. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

[2] This is the description used in Headifen's brief. The order is not in the record before us.

[3] Headifen also could have sought an extension of this deadline under Texas Rule of Appellate Procedure 26.3, but he failed to do so.

NOW ABOUT THOSE SPECIAL WRINKLES 
IN THE CASE EXPLAINING THE BILL OF REVIEW 

Unconditional Award of Appellate Attorneys fees payable on day notice of appeal is filed
... Hmmm ...
Sounds like that would be reversible error, albeit an exemplar of the Catch 22 genre 

Award of Unconditional Attorney's Fees to prevailing party 
chill exercise of right to appeal. Indeed. Even more so when the fees must be paid up front and when the would-be appellant does not have the money. 

Grant Rawston Headifen, Appellant,
v.
Vanessa Harker, Appellee.

No. 03-16-00028-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: August 30, 2017.

Grant Rawston Headifen, for Appellant, Pro se.

Vanessa Harker, for Appellee, Pro se.

Appeal from the District Court of Travis County, 261st Judicial District, No. D-1-GN-15-004159, Honorable Darlene Byrne, Judge Presiding.

Affirmed.

Before Chief Justice Rose, Justices Goodwin and Bourland.

MEMORANDUM OPINION

CINDY OLSON BOURLAND, Justice.

Grant Rawston Headifen appeals the district court's judgment denying his petition for bill of review. Headifen contends that the trial court erred because he demonstrated that he had a meritorious ground of appeal, which he was prevented from presenting by official mistake, unmixed with fault or negligence on his part. Because we hold that Headifen failed to exercise due diligence in pursuing his available legal remedies, we will affirm the district court's judgment.

BACKGROUND^[1]

Following a bench trial, Headifen and appellee Vanessa Harker were divorced on May 7, 2015, upon the trial court's signing of the final decree of divorce. In the decree, the trial court found that Harker had incurred more than $250,000 in attorneys' fees over the four-year divorce proceedings, and awarded Harker a judgment in the amount of $50,000 for attorneys' fees, to be paid on or before July 7, and another $10,000 in the event that Headifen filed an appeal, to be paid on the date the appeal was filed. 

Headifen timely filed a motion for new trial on June 8, 2015, which (according to his brief) objected to the award of attorneys' fees. Headifen also requested findings of fact and conclusions of law, which the trial court issued on June 23, 2015. With respect to factors considered in calculating the amount of the award of attorneys' fees, the findings included: (1) the fact that Headifen filed more than 27 pleadings in the divorce proceeding; (2) the evidence presented that Headifen told friends that he would "`run Harker out of money'" in the suit; (3) the high volume of emails Headifen sent to Harker's counsel, which counsel for Harker had to read and to which she had to respond; (4) the threatening tone of some of the emails from Headifen to counsel for Harker; and (5) the evidence presented of an overall pattern of harassing behavior by Headifen directed at prolonging the litigation and draining Harker's resources.

On June 30, 2015, while his motion for new trial was pending, Headifen filed a motion for recusal, claiming that the trial judge, Judge Orlinda Naranjo, demonstrated a clear bias against him, as indicated in her findings regarding attorneys' fees. Judge Naranjo, who had been specially assigned to the case, referred the motion for recusal to the regional presiding judge, who then referred the motion to Judge Dan Mills for a ruling. On July 21, at the expiration of 75 days following the entry of final judgment, Headifen's motion for new trial was overruled by operation of law. Headifen asserts in his brief that he attempted on July 30 to set his motion for new trial for hearing on the central docket, but he was told that because Judge Naranjo had been specially assigned to the case, the hearing could not take place until the motion seeking her recusal was addressed. On August 12, Judge Mills heard and denied Headifen's motion for recusal. On August 24, at the hearing on Headifen's motion for new trial, Judge Naranjo entered an order striking Headifen's motion^[2] because thirty days had elapsed since the motion was overruled by operation of law, so the court no longer had plenary power to rule on the motion. Headifen filed an appeal to this Court on August 28, 2015. We dismissed the appeal for want of jurisdiction because it was not timely filed. See Headifen v. Harker, No. 03-15-00552-CV, 2015 WL 7422962, at *1 (Tex. App.-Austin Nov. 17, 2015, no pet.) (mem. op.) ("The date that the motion for new trial is heard or decided has no bearing on the deadline for filing a notice of appeal.").

On September 21, 2015, Headifen filed a petition for bill of review. Headifen argued that Judge Naranjo made an official mistake in her referral of Headifen's motion to the presiding judge by stating in her referral letter that "there are no pending issues before [the court] at this time." This, Headifen claims, caused the presiding judge to not act promptly in setting the hearing on the motion for recusal, which caused the delay that ultimately resulted in Headifen's motion for new trial being stricken. The trial court denied Headifen's petition for bill of review. 

This appeal followed.

Default Judgment: Appeal, Post-Judgment Motion, and Bill of Review

Default judgment entered. Judgment granted for Plaintiff. -- Now what?  

ATTACKING DEFAULT JUDGMENTS AND OTHER JUDGMENTS 

This article discusses, in general terms, what options may be available to the consumer once a judgment has been entered for the creditor. It focuses on legal remedies to attack the judgment, not on efforts to settle the case in order to avoid enforcement in the form of execution or garnishment, topics left for another day. 

Also see more recent article on --> TRAPs and PITFALLS in pro se appeals and --> Sample Briefs 

  

APPEALS, BILL OF REVIEW, and POST-JUDGMENT MOTIONS 

  

It makes sense to discuss appeals and bill of review together, at least in an article that provides a general overview because the purpose of appeal and bill of review are the same: to attack an adverse judgment. 
  
They are nevertheless two rather different vehicles, and come into play under different circumstances.   
  

The bill of review procedure applies in the trial court and may be available for as long as four years after the judgment was signed (and sometimes even potentially longer when the defendant was unaware that the judgment even existed). The timeframe for appeals, by contrast, is much shorter. More on appellate deadlines below.   

A bill-of-review proceeding is initiated to attack a default judgment while an appeal may be brought to challenge a variety of judgments: a default judgment; a summary judgment; or a judgment entered after trial on the merits.

  
A bill-of-review petition is filed in the trial court that granted the judgment. An appeal, by contrast, is taken to the court of appeals in whose geographic jurisdiction the county or district court is located, though the notice of appeal must be filed in the trial court. (Appeals from justice court, also called JP Court, are another matter; they go to county court and have their own set of rules).  

Both bill of review and appeals - ordinary appeal and restricted appeal -  have specific requirements that must be satisfied. If the judgment was entered recently (within the last 30 days), it may be possible to attack the judgment by post-judgment motion in the trial court, such as a motion for new trial or a motion to set aside the default judgment; or a motion to modify the judgment.

All such post-judgment motions have to filed within 30 days counting from the date the judgment was signed by the judge (which may differ from the hearing or trial date). It may be necessary to obtain a copy of the judgment from the clerk to be sure of the correct date. An extension may be available if the defendant did not become aware of the judgment until some point later, but the time frame under the rule that extends post-judgment deadlines under special circumstances is also restricted. -- > Late notice of judgment and motion under Rule 306a.  

DEADLINES THAT REALLY KILL 

The timing rule for post-judgment motions is very harsh. Such motions must be filed within 30 days or the plenary power of the trial court will automatically expire, meaning that the judge could no longer set aside the judgment even if inclined to do so. Sometimes judges set aside and alter judgment only to have the second judgment declared void by a higher court. 
  
The deadline for appeals is also 30 days, but the rules for appeals are more lenient in two respects: 

First, a tardy would-be appellant may qualify for a 15-day extension to file the notice of appeal; second, in the case of a default judgment, the consumer may be able to bring a restricted appeal up to six months after the judgment was entered if he or she did not file a post-judgment motion or a timely notice of appeal to initiate a regular appeal. As the name suggests, a restricted appeal is more limited in other respects. It also requires a different notice of appeal. 

But the road to the court of appeals has booby traps too. In an appeal from a bench trial, findings of facts are needed in most cases, and the request for those is due before the notice of appeal itself is due: 20 days from the date of the judgment. -- > Findings of Facts and Conclusions of Law. And if the trial court is tardy in issuing findings, the prospective appellant has the burden to file a reminder called a past-due notice. 

TYPES OF APPEALS

The fourteen intermediate courts of appeals in Texas hear and decide various categories of appeals from county and district courts, not all of which are relevant to debt collection litigation. Among those that pertinent are the following: (1) appeals from final summary judgments; (2) appeals from final judgments entered after a bench trial (almost never a jury trial in collection cases); (3) direct (regular) appeals from default judgments; (4) restricted appeals from default judgments after the deadline for a regular appeal has passed. (Mandamus proceedings, which like an appeal by a different name and different rules and standards need not concern us here). 

Typically, the urge, need, or desire to appeal arises after a final judgment has been entered against the Defendant. Appeals during the pendency of a lawsuit are exceedingly rare in debt litigation. That category of appeal is called interlocutory, and must be specifically authorized by statute. The circumstances that give rise to a right to an appeal before a final judgment seldom occur in debt collection suits, but there are exceptions, as there are to almost any rule and generalization:   

IMMEDIATE APPEALS WHILE A LAWSUIT IS PENDING 

Interlocutory appeals are not a regular feature of debt collection litigation. But there are two possible exceptions: immediate appeals relating to arbitration (denial of motion to compel arbitration); and appeal of an adverse ruling on a contest to personal jurisdiction through what is called "special appearance" under Rule 120a. The latter scenario rarely occurs because consumers in debt collection suits must be sued in the county in which they reside, not merely in the state in which they live.

If a cardholder is sued in the wrong county, the remedy is a motion for transfer of venue (and a possible unfair debt collection claim based on the mandatory venue violation). Because of potential legal liability, however, debt collectors have good reason to make sure they don’t see in the wrong court. Collectors who flout the rule even risk enforcement action by consumer protection authorities. Example: Texas AG's action against Joseph Onwuteaka and his debt collection firm over mandatory venue violations: State of Texas v. Samara Portfolio Management LLC in Harris County District Court. 

As for personal jurisdiction issues involving foreign defendants, they are much more common in commercial litigation against companies and their directors and/or owners, not consumers.

The most common forms of appeal in debt litigation are (1) ordinary appeal from a final judgment -- either a summary judgment in favor of the creditor or a judgment entered after a bench trial -- and (2) restricted appeal, which is a special form of appeal that affords a remedy for default judgments under certain conditions. Sometimes, it is the creditor that appeals when the consumer prevails in the trial court. 

BILL OF REVIEW VS. APPEAL

A bill of review proceeding is a method to attack a judgment that is no longer appealable because it has become final and the deadlines for regular and restricted appeal have passed. Unlike appeals, a bill of review is filed in the trial court in which the judgment was rendered. As such, it looks more like a regular lawsuit initiated by petition (though it must be sworn). 

The bill-of-review case may be assigned a new cause number just as all other freshly filed civil suits; or it may be given the original cause number with an extension added (a hyphen plus an additional digit or letter). Regardless of how a particular county or clerk denominates the bill-of-review case, its purpose is to persuade the trial judge to set aside the final judgment in the earlier case, and thereby -- essentially -- revive that lawsuit. If the bill of review is granted, the effect will be that the parties are returned to the position they were in before the judgment was granted. This means that the case is re-opened, and will have to be tried or disposed of in some other fashion. To complicate matter further, in a bill-of-review proceeding the judgment debtor who was the defendant in the collection suit is now the petitioner (plaintiff) and the creditor is the defendant. If the case is reopened, the parties sometimes revert to their original designations. As a further wrinkle gets added when the judgment was assigned to a new owner. Suffice it say, to reopen a default-judgment case by bill of review can be a rather daunting proposition. 

An appeal, by contrast, involves a proceeding in a higher court that seeks to convince the higher court that the trial judge erred, or that there was some other problem, such as a defect in service (which the trial court judge may not have noticed and may not have been made aware of). There may be variety of outcomes: reversal and remand to the trial court; reversal and rendition of judgment in the appellant's favor; affirmance of the trial court's judgment, and partial reversal. Sometimes the courts of appeals correct a minor matter, such as deleting a word or item or adjusting the interest rate, and characterize the disposition as "affirming the judgment as reformed". 

TAKING AN APPEAL: NO EASY TASK

There are many requirements for a successful appeal, and many procedural traps along the way. It is almost impossible for a pro se litigant to be successful on appeal, though not unheard of either. Most pro se appeals in debt suits are either dismissed or denied, and even those brought with attorneys often fail, for a variety of reasons. -- > appellate decisions in debt litigation 

Dismissal is the virtually guaranteed outcome if the appellant does not pay the appellate filing fee ($205 as of 2018) or does not pay for the clerk's record (cost depends on number of pages needed for the appeal). Appeals from judgments resulting from bench trials normally also require a reporter’s record (cost depends on length measured in words spoken and transcribed; with fees charged per page). The reporter’s record should be much shorter, and cheaper, compared to other civil cases involving comparable dollar amounts in damages because little or no oral testimony is typically presented, as most if not all of the evidence is in the form of documents submitted with a business records affidavit.  

Other forms of noncompliance can also entail dismissal, such as failing to file the required appellate docketing statement. Unrepresented litigants typically do not know how to draft an appellate brief, and often violate multiple rules of form. 

They will typically be given another chance (ordered) to submit a compliant brief by a specified deadline, but a fundamental lack of familiarity with the appellate process cannot be remedied within a matter of weeks; not to mention presenting a strong argument on the merits, supported by relevant legal authority (case law). If an argument on appeal is not supported with citations (to relevant published opinions in earlier cases and to the record in the case before the court), the argument is waived, and the justices will often not even consider it. 

The panel hearing the case will often overlook defects in form that remain in the resubmitted pro se brief, but will very likely rule against the unrepresented appellant on the merits, often based on failure to preserve error in the trial court, such as not making objections at all, or not giving a ruling on them. 

Most pro se appeals thus fail, assuming they even reach decision the decision stage. -- > Common error on appeal 

That said, default judgment are easier to attack than decisions on the merits, especially when the defendant was not (properly) served with process ( -- > Defect in service of citation) or was not given notice of the trial or hearing. One of the most critical issues is the date the defendant becomes aware that a default judgment was entered and/or hires an attorney who can assess the case and see if there is a viable basis to attack it. 

The clerk of the court will typically mail notice that a judgment was entered to the defendant's last known address, but that may not be the correct one. If the defendant does not take action promptly, it may be too late to undo the judgment, unless the requirements for a bill of review are satisfied. 

A bill of review, however, is an equitable remedy, and as such leaves a lot of discretion to the judge to grant or deny it, depending on the reason that led to the default judgment and whose fault it was. An additional complicating factor is that oftentimes the judge hearing the bill of review will be the same that signed the judgment that is being attacked. If the judge made an error, it can be a delicate matter asking the same judge to correct it since the bill of review plaintiff would have to convince the judge of some wrongdoing or an oversight the last time around. In an appeal, by contrast, it is three justices on a higher court that review the actions of the judge in the court below, and they do it on a daily basis for a living. 


Last revisions 12/8/2018