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.

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