Attack on default judgment after trial no-show successful on appeal - Midland Funding v. Rosa Gonzales (Tex.App. - Eastland Sep. 21, 2017)

When the plaintiff does not show up for trial, the case gets dismissed for want of prosecution or as it’s called in Texas – DWOPPED [pronounced “dee-whopped”]; when the Defendant does not appear, a default judgment will typically be entered, assuming the Plaintiff supports its claim with evidence, normally in the form of a business records affidavit in debt collection cases, rather than a live witness. When the no-show is by mistake, a post-judgment motion may be filed within thirty days to get the case re-opened. What does it take? A recent case opinion (see below) addresses the scenario where the reason for the no-show is lack of notice of the trial setting, and how that fact is established to revive the case. What's unusual here is that the challenged default judgment was entered against Midland Funding, a debt buyer, rather than in its favor, which is much more common. The default judgment was on a counterclaim asserted by the defendant in the collection action, and Midland claimed that it had not received proper notice. The trial court denied Midland's motion for new trial, but the court of appeals reversed and remanded the case to the trial court.  

MIDLAND FUNDING LLC, Appellant,
v.
ROSA GONZALES, Appellee.

No. 11-16-00044-CV.

Court of Appeals of Texas, Eleventh District, Eastland.

Opinion filed September 21, 2017.   

Michael James Young, Kristy Gabrielova, Brian Edward Staley, Sandy Huynh, Katharine Allen, Timothy Lee Elder, for Midland Funding LLC, Appellant.
  

Michael Hall, for Rosa Gonzales, Appellee.

On Appeal from the 32nd District Court, Nolan County, Texas, Trial Court Cause No. 19,523.

MEMORANDUM OPINION

MIKE WILLSON, Justice.

Midland Funding LLC appeals the trial court's denial of a motion for new trial, which Midland Funding filed after the trial court entered a post-answer, default judgment against it because it failed to appear at trial. Attached to Midland Funding's motion for new trial was the affidavit of Brian Staley, one of five attorneys listed as counsel for Midland Funding on its petition. In his affidavit, Staley stated that Midland Funding did not appear at trial because neither he nor his office received the trial court's change of venue notice or a trial notice. Gonzales submitted two affidavits in response to Midland Funding's motion for new trial and Staley's original affidavit.

During the hearing on the motion for new trial, the trial court found that Staley's affidavit was conclusory and struck it from the record. The trial court then found insufficient evidence to support Midland Funding's motion and denied it because Staley's affidavit was the only evidence that Midland Funding had attached to its motion; Midland Funding then appealed. We reverse and remand.

I. Background Facts and Procedural History

On September 8, 2014, Midland Funding sued Rosa Gonzales in the Nolan County Court at Law and alleged that she had an unpaid credit card account. After Gonzales received service of process, she timely filed an answer and a counterclaim that included discovery requests. Midland Funding never responded to the discovery, which included requests for admissions. In accordance with a standing order, on October 2, 2014, Pat McGowan, the Nolan County Clerk, transferred the case to the 32nd District Court and provided written notice to Staley.

Almost a year later, on September 14, 2015, Becky Stewart, the court administrator for the 32nd District Court, sent Staley a written notice by mail and sent an e-mail notice to Gonzales's attorney, Lance Hall, that a nonjury trial was set for November 6, 2015. On November 6, 2015, Gonzales and her counsel personally appeared and announced ready for trial, but neither Midland Funding nor its counsel were present. The trial court held that Midland Funding did not present any evidence in support of its claim against Gonzales and ordered that Midland Funding take nothing from her.

The trial court also found that Midland Funding had deemed admissions, heard evidence from Gonzales on liability and damages, and heard from Hall on attorney's fees. The trial court then awarded Gonzales damages, as well as reasonable and necessary attorney's fees.

Midland Funding became aware of the judgment on December 1, 2015, and in response, on December 4, 2015, it served a motion for new trial and motion for reinstatement on all parties. The motion was file-stamped by the district clerk on December 30, 2015. Gonzales filed a response to the motion on February 2, 2016, and provided affidavits from Stewart and Hall. Stewart stated that, on September 14, 2015, she mailed notice of the nonjury trial setting for November 6, 2015, to Staley at the mailing address that he provided when he filed the suit and that he did not e-mail the notice because Staley did not provide an e-mail address to her. Hall stated that he received the trial notice on September 14, 2015, from Stewart via e-mail.^[1]

On February 2, 2016, the trial court heard the motion for new trial; Hall appeared for Gonzales, and a lawyer from Lubbock, Joseph Aguilar, also appeared.^[2] At the hearing, Hall objected to the affidavit of Staley, Midland Funding's lead counsel, because it was conclusory. The affidavit, the only evidence Midland Funding presented at the hearing, indicated that neither Staley nor his office received notice of the venue change, the trial setting, or the default judgment. The trial court agreed with Gonzales, found the affidavit to be conclusory, and struck it from the record. With no other evidence presented to it by Midland Funding, and in light of Stewart's and Hall's affidavits, the trial court denied the motion for new trial.

On February 3, 2016, Midland Funding appealed the trial court's denial of its motion for new trial. This court abated the appeal to permit Midland Funding to obtain a finding from the trial court that it acquired actual notice of the judgment on December 1, 2015. See TEX. R. CIV. P. 306a; TEX. R. APP. P. 4.2(a). As part of Midland Funding's Rule 306a motion, it filed additional affidavits from Midland Funding's staff counsel, including Staley and another lawyer, Tim Elder. In addition to addressing the date that they acquired actual notice of the judgment, Staley averred that he had checked the files at their office and did not find any misfiled notices or mail, and both Staley and Elder averred that they had never received notice from the court clerk of the venue change, the trial setting, or the default judgment.

II. Standard of Review

An appellate court reviews a motion for new trial for abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The requirements set forth in Craddock v. Sunshine Bus Lines,^[3] governing the setting aside of no-answer default judgments, also apply to post-answer, default judgments. Lopez v. Lopez,757 S.W.2d 721, 722 (Tex. 1988) (citing Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); Grissom v. Watson, 704 S.W.2d 325, 326 (Tex. 1986)).

"Due process requires `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.'" Ibrahim v. Young, 253 S.W.3d 790, 805 (Tex. App.-Eastland 2008, pet. denied) (quoting Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)). Failure to give notice to a party of a trial setting violates the due process requirements of the United States Constitution. Mabon Ltd. v. Afri-Carib Ents., Inc., 369 S.W.3d 809, 813 (Tex. 2012); LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989); Lopez, 757 S.W.2d at 723 (citing Peralta, 485 U.S. at 84). It is also grounds for reversal of a default judgment. See Trevino v. Gonzalez, 749 S.W.2d 221, 223 (Tex. App.-San Antonio 1988, writ denied).

III. Analysis

In a single issue on appeal, Midland Funding asserts that it is entitled to a new trial because the trial court deprived it of due process when it failed to send Midland Funding notice of the trial setting. See Mabon Ltd., 369 S.W.3d at 812-13; LBL Oil Co., 777 S.W.2d at 390-91; Lopez, 757 S.W.2d at 723. As a preliminary matter, we need to review what evidence was before the trial court at the motion for new trial hearing to determine if the trial court abused its discretion when it struck Staley's original affidavit from the record and denied the motion for new trial.

A. Staley's subsequent affidavit and Elder's affidavit were not before the trial court, but Staley's original affidavit should have been because it was not conclusory.

Gonzales asserted that Staley's and Elder's affidavits filed as part of Midland Funding's Rule 306a motion were not before the trial court when it heard the motion for new trial and also asserts that Staley's original affidavit was conclusory. We note that Staley's subsequent affidavit and the affidavit of Elder were filed nearly three weeks after the motion for new trial hearing and the trial court's denial of the motion. This court cannot consider evidence filed after the trial court's consideration and denial of a motion for new trial. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992); Hernandez v. Saldivar, No. 04-15-00691-CV, 2016 WL 2584657, at *3 n.3 (Tex. App.-San Antonio May 4, 2016, no pet.) (mem. op.) (holding that the trial court could not consider affidavits establishing the appellant's lack of conscious indifference because the evidence was not before the trial court during the time the motion for new trial was pending); see also L.B. Foster Co. v. Glacier Energy, Inc., 714 S.W.2d 48, 49 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.) (holding untimely filed amended motion and evidence could not be considered). As a result, we only need to decide whether Staley's original affidavit was conclusory.
  

As to Staley's original affidavit, Gonzales claims that Staley only stated conclusions without supporting facts. A conclusory statement is objectionable because it lacks supporting, underlying facts. Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.-Houston [1st Dist.] 2009, pet. denied); see Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). Staley's affidavit provided the following:

My name is Brian Staley. I am of sound mind, over eighteen years of age, and competent to make this affidavit.

I am staff counsel for MIDLAND FUNDING LLC, Plaintiff in this case. Our office did not receive notice of trial for November 6, 2015.

I first became aware that the case had gone to trial on December 1st, 2015.

Our office did not receive notice of the judgment from the clerk, nor any notice regarding the transfer of the case from County Court to District Court.

At the hearing on the motion for new trial, the following exchange occurred about Staley's affidavit:

THE COURT: I mean it seems to jump to a conclusion, does it not?

[PLAINTIFF'S COUNSEL]: Absolutely I would agree with that. I mean, like I said, I was just put on this case here last minute.

THE COURT: I realize you're kind of behind the eight ball but —

[PLAINTIFF'S COUNSEL]: I didn't draft the affidavit. Of course, I would have put more details in it. But, he said that his office didn't receive notice of the judgment.

We disagree that Staley's original affidavit is conclusory because Staley stated that neither he nor his office received the notice, which rebutted the presumption of service under Rule 21a. See TEX. R. CIV. P. 21a; see also Cliff, 724 S.W.2d at 780.

A presumption arises under Rule 21a "when notice of trial setting properly addressed and postage prepaid is mailed, that the notice was duly received by the addressee." Cliff, 724 S.W.2d at 780. However, that presumption may be rebutted with proof. Id. As Midland Funding's counsel at the motion for new trial hearing noted, Staley's original affidavit could have contained more facts, but nonetheless, Staley stated a factual matter in his affidavit — that he did not receive something. He did not merely state a legal conclusion about the effect of that nonreceipt. Accordingly, we hold that the trial court should have considered Staley's original affidavit.

B. The trial court abused its discretion when it denied the motion for new trial because Stewart's and Hall's affidavits failed to adduce evidence that Midland Funding actually received the venue change and trial notices.

Midland Funding asserts that the trial court abused its discretion because Midland Funding established that it never received the trial notice. A person who is not notified of a trial setting and consequently suffers a default judgment need not establish a meritorious defense or lack of prejudice to the opposing party to be entitled to a new trial. Lopez, 757 S.W.2d at 723 (citing Peralta, 485 U.S. at 85); Leon's Fine Foods of Tex., Inc. v. Merit Inv. Partners, L.P., 160 S.W.3d 148, 155 (Tex. App.-Eastland 2005, no pet.). To satisfy the first prong of Craddock, the defaulting party must establish that his failure to appear was due to a mistake or accident rather than the result of conscious indifference, which is defined as the failure to take some action that would seem obvious to a reasonable person under similar circumstances. Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 650 (Tex. App.-San Antonio 2002, pet. denied). The historical trend in default judgment cases is toward the liberal granting of new trials. Id. Thus, where the elements of the Craddock test are satisfied, it is an abuse of discretion for the trial court to deny a motion for new trial. Id. (citing Dir., State Emps. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)).

We note that a trial notice properly sent in accordance with Rule 21a raises a presumption that notice was received. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005); Cliff, 724 S.W.2d at 780; see TEX. R. CIV. P. 21a. Staley's original affidavit rebutted the Rule 21a presumption because he stated that neither he nor his office received the notice of the venue change or trial date. In response, Stewart's and Hall's affidavits explained that notice of the trial setting was sent to the parties and received by Gonzales's counsel, Hall, via e-mail. The trial court may decide the motion for new trial even though the affidavits are not introduced into evidence. See Evans, 889 S.W.2d at 268 (citing Strackbein, 671 S.W.2d at 38-39). In addition, where no findings of fact or conclusions of law were requested or filed, as in this case, the judgment must be upheld on any legal theory that finds support in the evidence. See Strackbein, 671 S.W.2d at 38.

Stewart attested that she normally sends notices by e-mail but that she will use the United States postal service if no e-mail is provided. She also testified that she routinely used this method for service of notices and presumed that she did so in this case. Neither she nor Hall adduced evidence that Midland Funding had actually received the notices.

We disagree with Gonzales's assertion that Stewart's and Hall's affidavits rebutted Staley's original affidavit because neither Stewart nor Hall provided evidence that Midland Funding had actually received the notice. Those affidavits simply established that Stewart sent the notices and that Hall received them. Staley averred that he and his office never received the notices.

Due process concerns require reversal when a party never receives notice of the trial setting. See Mathis, 166 S.W.3d at 746; Cliff, 724 S.W.2d at 780.

We sustain Midland Funding's sole issue on appeal.

IV. This Court's Ruling

We reverse the judgment of the trial court and remand the cause to the trial court for further proceedings consistent with this opinion.

  

[1] Hall stated in his affidavit that Midland Funding had failed to appear for trial in another Nolan County justice court suit, Cause No. 5706, Midland Funding, LLC v. Patricia Martin, where Staley was its counsel and Hall represented Martin. Hall also explained that Midland Funding is a defendant in a suit filed by the Texas Attorney General that alleges unlawful practices, including filing thousands of false affidavits, Cause No. 2011-40626 in the 165th District Court of Harris County.

[2] Aguilar was retained by Midland Funding approximately three hours before the hearing and was not affiliated with Midland Funding's counsel from Houston, including Staley.

[3] 133 S.W.2d 124 (Tex. 1939).

TEXAS SUPREME COURT CASE ON 

NON-RECEIPT OF NOTICE

Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) ("Testimony by Lockwood's counsel that notice was sent did not contradict Mathis's testimony that notice was never received.").


166 S.W.3d 743 (2005)

Mary MATHIS, Petitioner,
v.
Joseph F. LOCKWOOD, Respondent.

No. 04-0516.

Supreme Court of Texas.

June 17, 2005.

Mary Mathis, pro se.

Rhonda F. Hunter, for Joseph F. Lockwood.

PER CURIAM.

Mary Mathis, appearing pro se, appeals the trial court's refusal to set aside a post-answer default judgment against her. The court of appeals affirmed, holding Mathis failed to overcome a presumption that she received notice of the trial setting. 132 S.W.3d 629, 632. Finding neither presumption nor evidence to support this conclusion, 744*744 we reverse and remand to the trial court for a new trial.

Mathis and her two children lived with respondent Joseph Lockwood for some period of time before suit. When the relationship soured, Lockwood filed suit seeking a declaration that he and Mathis were not common-law spouses, and the return of property he claimed Mathis had stolen. Mathis apparently filed an answer, though it is not in the record.

The case was set for trial December 13, 2002, before a visiting judge. Mathis did not appear. After brief testimony from Lockwood, a post-answer default judgment was rendered in his favor.

On January 9, 2003, Mathis filed a "Motion for a Request Rehearing" asserting she never received notice of the December 13th trial. She testified to the same effect at a hearing on the motion before the court's presiding judge on February 4th. Conversely, Lockwood's counsel testified that notice was sent to Mathis's last known address and her former attorney. None of the witnesses were sworn, and while the reporter's record indicates Lockwood's counsel tendered a document to the judge at this hearing, none appears in the reporter's record.^[1] The trial court refused to set aside the default judgment.

For many years, a post-answer default could be set aside only if a defendant proved three elements: (1) nonappearance was not intentional or the result of conscious indifference; (2) a meritorious defense; and (3) a new trial would cause neither delay nor undue prejudice. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987) (citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).

When the first element is established by proof that the defaulted party was not given notice of a trial setting, we have dispensed with the second element for constitutional reasons. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)).

For the same reasons, the court of appeals also dispensed with the third element. 132 S.W.3d at 631; accord In the Matter of the Marriage of Lisa Ann Runberg, 159 S.W.3d 194, 200 (Tex.App.Amarillo 2005, no pet.); In the Matter of the Marriage of Brenda May Parker, 20 S.W.3d 812, 817-18 (Tex.App.Texarkana 2000, no pet.). We need not reach that issue here, however, because in any event Mathis's sworn motion asserted that a new trial would not injure Lockwood, and nothing in the record establishes the contrary. Cliff, 724 S.W.2d at 779-80 (requiring new trial as "there is nothing in the record to show that a new trial will work an injury to [the plaintiff]"); see also Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994) (holding Craddock elements may be established by affidavit, even if not tendered as evidence at new trial hearing).^[2]

Thus, the only question before us is whether Mathis established the first element. Her sworn motion for new trial asserted that she failed to appear at the December 13th trial because she never received notice of the setting. At the post-judgment hearing, Lockwood's counsel testified that notice was sent to Mathis, and 745*745 Mathis denied receiving it. While statements by neither were under oath, the oath requirement was waived when neither raised any objection in circumstances that clearly indicated each was tendering evidence on the record based on personal knowledge on the sole contested issue. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (holding attorney's unsworn statements tendered as evidence were sufficient absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.2005) (holding pro se litigants are governed by the same rules as attorneys).

The court of appeals held that the trial court as fact finder could have concluded that Mathis failed to overcome the presumption "that a trial court hears a case only after proper notice to the parties" and "that she was notified of the trial setting." 133 S.W.3d at 631-32 (citing Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.Dallas 1993, no writ)). We disagree that there were any such presumptions on the facts presented here.

It is true that notice properly sent pursuant to Rule 21a raises a presumption that notice was received. Tex.R. Civ. P. 21a; Cliff, 724 S.W.2d at 780. But we cannot presume that notice was properly sent; when that is challenged, it must be proved according to the rule.

Unlike service of citation, Rule 21a allows service of notices by anyone competent to testify. Tex. R Civ. P. 21a. When a party or attorney of record serves the notice (as occurred here), "[t]he party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument." Id. (emphasis added). Like any other contemporaneous business record, this certificate bears some assurance of trustworthiness as it was prepared as a matter of office routine before any dispute about notice arose.

"A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service." Id. Here, the record contains no certificate of service, no return receipt from certified or registered mail, and no affidavit certifying service. Instead, the only evidence of service in the record was the oral assurance of counsel. As the rule's requirements are neither vague nor onerous, we decline to expand them this far. As none of the prerequisites for prima facie proof of service were met, the court of appeals was incorrect in indulging a presumption that Mathis received the notice Lockwood's counsel sent.

Without this presumption, there was no evidence that Mathis received notice of the trial setting. Testimony by Lockwood's counsel that notice was sent did not contradict Mathis's testimony that notice was never received. See id. ("Nothing herein shall preclude any party from offering proof that the notice or instrument was not received...."). Even if the trial judge disbelieved Mathis's testimony, that would not provide affirmative evidence that service occurred. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) ("When the testimony of a witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion.").

No other alternatives established service. Notice to Mathis's former attorney was no longer notice to Mathis after her attorney withdrew. Tex.R. Civ. P. 10; see, e.g., Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979) (holding pro se party was charged with notice of all pleadings served on him, or on his attorney prior to withdrawal). Notice to Mathis's last known 746*746 address was sent to Lockwood's home; Lockwood could not serve Mathis by serving himself. And counsel's statement at the trial that "I had my office call her and speak to her about today's hearing" shows no personal knowledge that notice was received, certainly none 45 days before trial. Tex.R. Civ. P. 245.

Citing Rule 21a's provision that notice may be sent to a party's last known address, the court of appeals held that litigants have a duty "to keep the court and parties apprised of their correct and current address." 132 S.W.3d at 631. Not all courts of appeals appear to agree. See Ewton v. Gayken, 130 S.W.3d 382, 384-85 (Tex.App.Beaumont 2004, pet. denied) (holding court clerk erred by sending dismissal notice to attorney's address of record rather than forwarding address printed on returned envelope). But even assuming there is such a duty, unless noncompliance was intentional rather than a mistake, due process requires some lesser sanction than trial without notice or an opportunity to be heard. Peralta, 485 U.S. at 85-86, 108 S.Ct. 896; Cliff, 724 S.W.2d at 779.

Because the Craddock test was satisfied in this case, the trial court abused its discretion in refusing to set aside the default judgment against Mathis. Accordingly, without hearing oral argument, we grant Mathis's petition for review, reverse the court of appeals' judgment, and remand the case to the trial court for further proceedings consistent with this opinion. Tex.R.App. P. 59.1.

[1] At Mathis's request, the court of appeals ordered both the district clerk and the court reporter to supplement the record with any exhibits. Tex.R.App.P. 34.5(c), 34.6(d). Neither found any.

[2] While Mathis's motion for new trial was filed after the trial court's initial hearing on her "rehearing" motion, it was brought to the trial court's attention at a second hearing held about a month later.

No "Restricted Appeal" if a post-judgment motion was filed; - attempted pro se appeal dismissed

In Texas a default judgment may be challenged by post-judgment motion or regular appeal within 30 days of the date it was signed, and by restricted appeal within six months of the judgment, but there is a catch that the average (or even well-versed) self-represented litigant is unlikely to be aware of. If a motion for new trial was filed in the trial court, a restricted appeal is no longer available. This recent opinion from the Dallas Court of Appeals illustrates the procedural perils of challenging a default judgment upon notice or discovery of it. A bill of review proceeding is another remedy to challenge a default judgment (when no longer appealable), but it - too - has rather daunting restrictions and requirements. 

LOTS OF TRICKY TRAPS

(TRAP = TEXAS RULES OF APPELLATE PROCEDURE) 

TRAP 25.1(d)(7)(B)

JULIAN ROSS, Appellant,

v.
SPERO HOLDINGS, LLC, A NEVADA LIMITED LIABILITY COMPANY, AND DANIEL JAMES MANAGEMENT, INC., A NEVADA CORPORATION, Appellees.

No. 05-17-01011-CV

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed November 7, 2017.

Julian Ross, for Appellant, Pro se.

Andrew H. Roberts, Kenneth W. Sloan, for Spero Holdings, LLC a Nevada Limited Liability Company, and Daniel James Management, Inc., A Nevada Corporation, Appellee.

On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-04473-2016.

Dismissed.

Before Justices Lang, Evans, and Schenck.

MEMORANDUM OPINION

Opinion by Justice DAVID EVANS.

This appeal was filed August 25, 2017, almost six months after the trial court signed the challenged judgment. The appeal was filed as a restricted appeal, with appellant stating he "did not timely file a request for findings of fact and conclusions of law, and all the requirements of Texas Rule of Appellate Procedure 25.1 generally and 25.1(d) specifically are met in this case or are otherwise satisfied by this notice of appeal." See TEX. RS. APP. P. 25.1, 30. 

As it pertains to restricted appeals, rule 25.1(d) requires in relevant part that the notice of appeal state appellant did not timely file either a post-judgment motion or request for findings of fact and conclusions of law. See id. 25.1(d)(7)(B).

 Notice of Restricted Appeal 

from the Appellate Record 

The clerk's record in the appeal reflects appellant timely filed a post-judgment motion for new trial. Noting this, appellees have moved to dismiss the appeal for want of jurisdiction. 

Appellant has filed a response, asserting two main arguments. First, he asserts appellate rule 2 allows the Court to suspend the requirement in rule 25.1(d) that to be entitled to a restricted appeal appellant must not have filed a timely motion for new trial. See TEX. R. APP. P. 2 (authorizing court of appeals to suspend rule "to expedite a decision or for other good cause"). Second, he asserts the Court "has jurisdiction under a Bill of Review standard." Neither of these arguments has merit. Rule 2 does not authorize a court to exercise jurisdiction where none exists, and a bill of review is a trial court proceeding that must be filed in the court that rendered the original judgment. See Frost Nat'l Bank. v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010) (bill of review); Tejas Elevator Co. v. Concord Elevator, Inc., 982 S.W.2d 578, 579 (Tex. App.-Dallas 1998, no pet.) (rule 2).

Because appellant filed a timely motion for new trial, he is precluded from filing a restricted appeal. See Lab Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.-Dallas 2000, no pet.). Accordingly, we grant appellees' motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a).

JUDGMENT

In accordance with this Court's opinion of this date, we DISMISS the appeal.

We ORDER appellees Spero Holdings, LLC, A Nevada Limited Liability Company, and Daniel James Management Inc., a Nevada Corporation, recover their costs, if any, of this appeal from appellant Julian Ross.

ANOTHER TRAP (OR SHALL WE SAY ELECTRONIC STICKERLISM?) 

MOTION REJECTED BECAUSE NOT IN TEXT-SEARCHABLE PDF 

Extension to file motion for rehearing granted until 12/22/2017 

The lesson here If you timely file a motion for new trial or a motion to vacate the default judgment, you need to file the notice of appeal within 90 days of the judgment, because a restricted appeal (which may otherwise be filed within 6 months) is then precluded.

ALSO SEE CITED CASE FROM THE SAME COURT OF APPEALS 

16 S.W.3d 527 (2000)

LABORATORY CORPORATION OF AMERICA, Appellant
v.
MID-TOWN SURGICAL CENTER, INC., Appellee

No. 05-99-01298-CV.

Court of Appeals of Texas, Dallas.

April 28, 2000.

528John Edgar Sherman, Houston, for Appellant.

D. Kevin McCorkindale, Kasselman & McCorkindale, P.C., Plano, for Appellee.

Before Justices LAGARDE, MOSELEY, and FITZGERALD.

OPINION

Opinion By Justice LAGARDE.

This is a restricted appeal from a default judgment signed December 29, 1998 by the trial court. Upon review of the record, this Court, on its own motion, questions its jurisdiction over the appeal on two grounds: (1) appellant could not utilize the restricted appeal procedures because it timely filed a postjudgment motion to set aside the default judgment; and (2) the notice of appeal was untimely under rule of appellate procedure 26.1(c) because it was filed six months and seventeen days after the trial court signed the judgment. See TEX. R. APP. P. 30, 26.1.

On March 20, 2000, pursuant to rule 42.3, the Court notified the parties that the case would be dismissed for want of jurisdiction unless appellant or any party desiring to continue the appeal filed with this Court, within ten days, a response showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3. As of the date of this opinion, no party has filed a response to the notice.

The record shows the trial court signed a default judgment against appellant on December 29, 1998. On January 28, 1999, appellant filed a motion to set aside the default judgment. On July 16, 1999, appellant filed a notice of restricted appeal.

Timely Filing of a Postjudgment Motion

We lack jurisdiction over this appeal because appellant timely filed a postjudgment motion, which barred him from perfecting his appeal under rule 30. Rule 30 permits a restricted appeal only when the appellant "did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of" and "did not timely file a postjudgment motion." TEX. R. APP. P. 30 (emphasis added). A motion for new trial is timely if filed within thirty days after the judgment was signed. See TEX. R. CIV. P. 329b(a). We deem appellant's motion to set aside the default judgment to be a motion for new trial because a motion for new trial following a default judgment requests that the default judgment be set aside. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939); see also Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390 (Tex.1993) (citing Craddock, 134 Tex. 388, 133 S.W.2d 124).

The record shows appellant filed a motion to set aside the default judgment, the equivalent of a motion for new trial, on January 28, 1999. The motion was filed thirty days after the signing of the judgment and was timely. Because appellant timely filed a postjudgment motion, rule 30 does not permit appellant to bring a restricted appeal. Therefore, appellant had to file his notice of appeal within ninety days after the trial court signed the judgment, which it failed to do. See TEX. R. APP. P.26.1(a)(2); Thomas v. Texas Dep't of Criminal Justice-Institutional Div., 3 S.W.3d 665, 666-67 (Tex.App.-Fort Worth 1999, no pet.). Accordingly, we lack jurisdiction over this appeal.

Untimely Notice of Appeal

Alternatively, even if the timely postjudgment motion did not bar appellant from using the restricted appeal procedure, the record does not show appellant 

529

*529timely perfected the appeal as a restricted appeal. Rule of appellate procedure 30, which governs restricted appeals, requires that the notice of appeal be filed within the time specified by rule 26.1(c). See TEX. R. APP. P. 30. Rule 26.1(c) requires that the notice of appeal be filed within six months after the judgment was signed. See TEX. R. APP. P. 26.1(c). Rule 26.3 permits an extension of time to file the notice of appeal for fifteen days after the deadline for filing the notice of appeal. See TEX. R. APP. P. 26.3. Thus, appellant had to file the notice of appeal within six months and fifteen days after December 28, 1998. The record shows the notice of appeal was filed six months and seventeen days after the judgment was signed. A timely notice of appeal is a requirement for this Court's jurisdiction. See Wichita Bldg. Corp. v. Lenz, 458 S.W.2d 829, 831 (Tex.Civ.App.-Fort Worth 1970, no writ); see also State v. Organic Composting Resources Co., 925 S.W.2d 129, 130 (Tex.App.-Austin 1996, no writ). In this case, appellant did not timely file the notice of appeal; accordingly, we lack jurisdiction over the appeal.

We dismiss this appeal for want of jurisdiction.

[Form] Motion to Vacate Default Judgment granted in favor of National Collegiate Student Loan Trust based on faulty TSI Affidavit [Texas pro se template]

Here is a pleading template for a post-judgment motion to challenge a default judgment entered in favor of any one of the multiple National Collegiate Student Loan Trusts. No matter what the number of the Trust, it makes no difference in litigation, except that the pleadings are different between the three law firms that have been prosecuting these cases in Texas: Regent and Associates (older cases), Michael J. Scott & Associates (sometimes SCOTT, PARNELL & ASSOCIATES, PC) and JAVITCH BLOCK, LLC. An earlier blog post provided a general summary of what remedies are available to deal with a default judgment in Texas. See  --- > How to attack default judgments in Texas by post-judgment motion and appeal. For a discussion of TSI's dubious affidavits and to view sample affidavits filed in support default or summary judgments, follow the link to -- > Robosigned affidavits by Transworld Systems Inc. (TSI). 

Cause No. _______________________

NATIONAL COLLEGIATE STUDENT                          IN THE COURT AT LAW

LOAN TRUST

A DELAWARE STATUTORY TRUST                         

            PLAINTIFF

                                                                             NO _______ JUDICIAL DISTRICT

V.                                                                                

__________________________________,         ________COUNTY, TEXAS

DEFENDANT                                                 

MOTION FOR NEW TRIAL

BY DEFENDANT _________________________________ 

AFTER DEFAULT JUDGMENT 

AND REQUEST FOR JUDICIAL NOTICE

           

Pursuant to Clerk’s Notice of Judgment issued in this cause, a final default judgment was signed on or about ________________, 201__.

            Pursuant to the Texas Rules of Civil Procedure, Defendant now moves for a new trial as a matter of right within thirty days (30) of the judgment, and thus within the court’s plenary power.

            Defendant would additionally show that reasons exist why this judgment should be set aside based on facts that were not known to the Defendant prior to the entry of the judgment

          Defendant, as movant for a new trial, would show that Plaintiff moved for and procured the judgment with an affidavit signed by an employee of Transworld Systems, Inc. (TSI).

            Defendant has learned that TSI has entered into a CONSENT ORDER with the CFPB concerning certain irregularities in affidavit production, and that the terms of the CONSENT ORDER require TSI to refrain from producing faulty affidavits and withdraw faulty affidavits already on file.

            The Court is requested to take judicial notice of the CONSENT ORDER pursuant to TEX. R. EVID. 201. The ORDER is posted on an official U.S. government website at the following URL:

http://files.consumerfinance.gov/f/documents/201709_cfpb_transworld-systems_consent-order.pdf   

            As merits grounds for relief from the default judgment, Defendant would show that the affidavit filed in this case is faulty and that the fault is apparent on the face of the record.

            The Court is respectfully requested to set aside the final judgment procured with an affidavit from TSI, reopen this case, and assure that the Trust, as Plaintiff seeking affirmative relief, and the Trust's attorneys and other agents, comply with the terms of the CONSENT ORDER between TSI and the CFPB.

            Defendant requests additional time to attempt to find an attorney willing to take this case and/or to conduct research at the County Law Library to be in a better position to proceed pro se with the help of litigation resources available at the law library and the guidance of the library's well-versed staff. 

            In the alternative, to the extent the judgment is not final or not deemed final, Defendant respectfully requests that the Court set aside the interlocutory default judgment and issue a new scheduling or docket control order.

PRAYER

           Wherefore, premises considered, Defendant as movant herein, respectfully requests that the Court set aside the default judgment and reinstate this case as an active case on the court’s docket.

                                                                        Respectfully submitted,  

                                                                        ___________________________

                                                                        Defendant’s First and Last Name

Defenant’s Mailing Address

Defendant’s Phone Number

                                                            Defendant, currently still appearing pro se

CERTIFICATE OF SERVICE

The undersigned party hereby certifies compliance with Rule 21a of the Texas Rules of Civil Procedure by the serving this motion upon the attorney of record for the National Collegiate Student Loan Trust using one of the methods of service as set forth in the rule. 

            ____  e-service by fax or email to the Trust's Texas counsel on ________________, 2017

            ____  service by snail mail to the Trust's Texas attorney for record, as shown below, 

on ___________________2017  

Counsel for the Trust shown on the docket and/or pleadings:

                       

JOSEPH, DIMPLE ABRAHAM

TYSOR, R. CHAN, Jr.

MICHAEL J. SCOTT

SCOTT & ASSOCIATES, P.C.

P.O. BOX 115220

CARROLLTON TX 75011

Phone 214-234-8456

Fax 214-234-8454

FIGELMAN, JACOB M

MELAMED, MARC A.

GUENTHER, KAREN

ELAINA MOORE

JAVITCH BLOCK, LLC

275 W. Campbell Road, Suite 312

Richardson TX 75080

Phone 214-383-9088

Fax 214-383-5890

Email DAL@jbllc.com

                                                                        ___________________________

                                                                        Defendant’s First and Last Name

== END OF PRO SE TEMPLATE ==

Highly Questionable Case Style from the Loads-of-Levity-at-Law Series (TM appl. not pending)

TEXAS CASELAW SNIPPETS

JUDICIAL NOTICE OF MATERIAL ON GOVERNMENT WEBSITES, AGENCY ACTS  

Courts may take judicial notice of the official records of another judicial entity of this state or the federal government. See Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (supreme court may take judicial notice of trial judge's federal, criminal plea agreement demonstrating financial interest in civil case making judge's orders void); see also Office of Pub. Util. Counsel v. Public Util. Comm'n, 878 S.W.2d 598, 600 (Tex. 1994) (holding that court of appeals must take judicial notice of agency's published order if asked to do so) (citing Tex. R. Civ. Evid. 201(b)(2)); Hendee v. Dewhurst, 228 S.W.3d 354, 377 n.30 (Tex. App.-Austin 2007, pet. denied) (likening agency decisions to court decisions with regard to judicial notice).

Material issued by a public authority pursuant to law is self-authenticating. See TEX. R. EVID. 902(5). Accordingly, it is proper to take judicial notice of documents on government websites. See Williams Farms Produce Sales, Inc. v. R & G Produce Co.,443 S.W.3d 250, 259 (Tex. App.-Corpus Christi 2014, no pet.). For the same reason, the Fifth Circuit has determined that courts may take judicial notice of governmental websites. See Kitty Hawk Aircargo, Inc. v. Chao,418 F.3d 453, 457 (5th Cir. 2005) (taking judicial notice of approval by the National Mediation Board published on the agency's website); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam) (taking judicial notice of Texas agency's website).

Also see City of El Paso v. Fox, 458 S.W.3d 66, 71-72 (Tex.App. — El Paso 2014, no pet.) (taking judicial notice of minutes from meeting of city council that were available on city's website); Bridgeport Ind. Sch. Dist. v. Williams, 447 S.W.3d 911, 916 n.4 (Tex.App. — Austin  2014, no pet.) (taking judicial notice of undisputed facts contained in a letter from the Texas Education Agency because those facts impacted the court's jurisdictional inquiry).

MOTION FOR NEW TRIAL BASED ON NEW EVIDENCE 

A party seeking a new trial based on newly discovered evidence must show the trial court that (1) the party did not discover the evidence until after trial; (2) the failure to discover the evidence was not due to lack of diligence; (3) the evidence is not cumulative or merely for impeachment; and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. See Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983), overruled on other grounds by Moritz v. Preiss,121 S.W.3d 715, 720-21 (Tex.2003). We review the trial court's ruling on a motion for new trial for an abuse of discretion. MRT, Inc. v. Vounckx, 299 S.W.3d 500, 511-12 (Tex. App.-Dallas 2009, no pet.).

NEW TRIAL MOTION UNDER CRADDOCK AND LACK OF NOTICE SCENARIO 

"Generally, the standard for setting aside a default judgment is set out in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)." That test typically requires

a person seeking to set aside such a judgment to show that (1) his failure to appear was not intentional or the result of conscious indifference on his part, but was due to a mistake or an accident, (2) he had a meritorious defense he was prevented from presenting, and (3) the motion to set aside the judgment was filed at a time when the granting thereof would occasion no delay or otherwise work an injury to the plaintiff.

Id. at 814-15 (citing Craddock, 133 S.W.2d at 125). 

"However, when the defendant did not receive actual or constructive notice of trial, he has met the first prong of Craddock,and due process prevents the application of the second and third prongs of the Craddock test." Id. at 815. 

MOTION TO SET ASIDE DEFAULT JUDGMENT GRANTED EVEN THOUGH DEFENDANT WAS NOT SERVED (must generally be filed 30 days after the judgment signed) 

A default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the lawsuit. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990). "[T]he Rules of Civil Procedure with respect to service of citation are mandatory and a failure to comply with them renders any attempted service void." Devine v. Duree, 616 S.W.2d 439, 441 (Tex. Civ.App.-Dallas 1981, writ dism'd by agreement).

Unless a defendant has waived citation, a trial court lacks personal jurisdiction over a defendant to whom citation has not been "issued and served in a manner provided for by law." See Wilson, 800 S.W.2d at 836. "If service is invalid, it is `of no effect' and cannot establish the trial court's jurisdiction over a party." In re E.R., 385 S.W.3d 552, 563 (Tex.2012) (quoting Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985) (per curiam)).

In a direct appeal from a no-answer default judgment, there is no presumption of valid issuance, service, and return of citation. See id. In the face of a direct attack, a default judgment cannot stand appellate scrutiny unless the record actually reflects that there has been strict compliance with the rules for service of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam). 

Whether a trial court has personal jurisdiction over a defendant is a question of law, which is reviewed de novo on appeal, Haaksman v. Diamond Offshore (Bermuda), Ltd., 260 S.W.3d 476, 479 (Tex.App.-Houston [14th Dist.] 2008, pet. denied).

RESTRICTED APPEAL AS A MEANS TO ATTACK A DEFAULT JUDGMENT WHEN NO MOTION FOR NEW TRIAL (or notice of appeal to initiate a regular appeal) WAS TIMELY FILED WITHIN 30 DAYS OF THE JUDGMENT 

To prevail on its restricted appeal, appellant must establish: (1) it filed its notice of restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying suit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander, 134 S.W.3d at 848; Lytle v. Cunningham, 261 S.W.3d 837, 839 (Tex.App.-Dallas 2008, no pet.) (citing TEX.R.APP. P. 26.1(c)). For purposes of a restricted appeal, the record consists of all papers filed in the appeal, including the reporter's record. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.-Dallas 2011, no pet.).^[2]

There is no presumption in favor of proper issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Lytle, 261 S.W.3d at 841. If the record fails to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, there is error apparent on the face of the record and attempted service of process is invalid and of no effect. Lytle,261 S.W.3d at 840. When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Id.

A restricted appeal is a direct attack on the judgment. Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The default judgment can only be sustained if the record before the trial court affirmatively shows that Paramount was served in strict compliance with the Texas Rules of Civil Procedure. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam); Barker CATV Constr., 989 S.W.2d at 792. If the record before the trial court does not affirmatively show, at the time that default judgment is requested, that the defendant has appeared, was properly served, or waived service in writing, the trial court lacks personal jurisdiction over 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). "In contrast to the usual rule that all presumptions will be made in support of a judgment, there are no presumptions of valid issuance, service, and return of citation when examining a default judgment." Barker CATV Constr., 989 S.W.2d at 792. Failure to comply strictly with the Rules of Civil Procedure constitutes reversible error on the face of the record. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255-56 (Tex.2009).

SIX MONTH LIMIT TO BRING RESTRICTED APPEAL, COUNTING FROM THE DATE OF JUDGMENT 

To prevail on his restricted appeal,      appellant      must establish that (1) he filed notice of the restricted appeal within six months after the judgment was signed, (2) he was a party to the underlying lawsuit, (3) he did not participate either in person or through counsel in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re Baby Girl S., 353 S.W.3d 589, 591 (Tex. App.-Dallas 2011, no pet.). Each element of a restricted appeal is mandatory and jurisdictional. Ibarra v. City of Laredo, Nos. 04-11-00035-CV, 04-11-00037-CV, 2012 WL 3025709, *4 (Tex. App.-San Antonio July 25, 2012, pet. denied) (mem. op.) (citing Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.-San Antonio 1995, no writ)).

CAUTION: RESTRICTED APPEAL NOT AVAILABLE WHEN PARTY FILED TIMELY POST-JUDGMENT MOTION 

Texas Rule of Appellate Procedure 30 permits a restricted appeal from an appellant "who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion ..." See Tex. R. App. P. 30. Here, the Sintims timely filed a motion for new trial challenging the default judgment. See Lab. Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex.App.-Dallas 2000, no pet.) (concluding court of appeals lacked jurisdiction over restricted appeal where appellant filed a timely motion for new trial).

Because appellant filed a timely motion for new trial, he is precluded from filing a restricted appeal. See Lab Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.-Dallas 2000, no pet.). Accordingly, we grant appellees' motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a).

ATTACK ON A DEFAULT JUDGMENT BY BILL OF REVIEW  

If a judgment is not challenged by a timely direct or restricted appeal, a bill of review is the exclusive method of vacating the judgment. See id.; see also TEX. R. APP. P. 30; TEX. R. CIV. P. 329b(f). Courts do not look on bills of review with favor, and the grounds on which they are granted are narrow and restricted. See Vickery v. Vickery, 999 S.W.2d 342, 367 (Tex. 1999). A petition for bill of review must allege factually and with particularity the required elements of a bill of review. See Jones v. Tex. Dept. of Protective and Regulatory Servs., 85 S.W.3d 483, 488 (Tex. App.-Austin 2002, pet. denied). 

IN TEXAS, A BILL OF REVIEW IS THE ULTIMATE REMEDY AGAINST A DEFAULT JUDGMENT (4-YEAR SOL), BUT IT REQUIRES A NEW LAWSUIT IN WHICH THE JUDGMENT-DEBTOR IS THE PETITIONER AND THE CREDITOR THE DEFENDANT 

A bill of review proceeding, like an equitable motioTn for new trial and a restricted appeal, is a method of attacking a default judgment. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). The bill of review is the chosen method when the default judgment under attack is no longer subject to a motion for new trial or appealable. Tex. R. Civ. P. 329b(f); Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010), cert. denied,562 U.S. 1180 (2011). 

While a motion for new trial is filed in the same original case and a restricted appeal is an appeal taken from the trial court's judgment in the original case, a bill of review proceeding is filed as a separate cause of action.^[2] In re J.J., 394 S.W.3d 76, 81 (Tex. App.-El Paso 2012, no pet.) (explaining that "[a]lthough a bill of review directly attacks a judgment rendered in a particular case, it is nonetheless an independent, separate suit filed under a different cause number"); see also Tex. R. App. P. 30 ("Restricted Appeals to Court of Appeals in Civil Cases); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) ("Assuming that Philbrook was properly decided . . . [it] demands no more than that `the motion for new trial must be filed in the same cause as the judgment the motion assails.'").

[Nota bene: A bill of review is a complicated procedure with specific requirements, incl verification of facts relied upon as a basis for it.] 

TEXT OF TRCP RULE 306a. 
PERIODS TO RUN FROM SIGNING OF JUDGMENT

1. Beginning of Periods. The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file within such periods including, but not limited to, motions for new trial, motions to modify judgment, motions to reinstate a case dismissed for want of prosecution, motions to vacate judgment and requests for findings of fact and conclusions of law; but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.

2. Date to Be Shown. Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not invalidate any judgment or order.

3. Notice of Judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4).

4. No Notice of Judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.

  

5. Motion, Notice and Hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed. 6. Nunc Pro Tunc Order. When a corrected judgment has been signed after expiration of the court's plenary power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment with respect of any complaint that would not be applicable to the original document. 7. When Process Served by Publication. With respect to a motion for new trial filed more than thirty days after the judgment was signed pursuant to Rule 329 when process has been served by publication, the periods provided by paragraph (1) shall be computed as if the judgment were signed on the date of filing the motion.