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

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

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

A bill of review is an equitable proceeding to set aside a judgment that is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Schwartz v. Jefferson, 520 S.W.2d 881, 889 (Tex. 1975). 

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

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

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

The pro se appellant disagreed, -- to no avail 

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

No. 03-16-00028-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: August 30, 2017.

Grant Rawston Headifen, for Appellant, Pro se.

Vanessa Harker, for Appellee, Pro se.

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

Affirmed.

Before Chief Justice Rose, Justices Goodwin and Bourland.

MEMORANDUM OPINION

CINDY OLSON BOURLAND, Justice.

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

BACKGROUND^[1]

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

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

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

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

This appeal followed.

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.