Opinion
No. 4-04-00776-CV
Delivered and Filed: October 19, 2005.
Appeal from the 73rd Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-05001, Honorable Pat Boone, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Coker Equipment, Inc. appeals a summary judgment order granting a bill of review in favor of Robert Eugene Blevins. Coker contends that the trial court erroneously granted the summary judgment because Blevins failed to prove his case as a matter of law. Specifically, Coker contends that a fact issue exists with regard to: (1) whether Blevins was negligent or free from fault; and (2) whether Blevins exhausted all legal remedies that were available to him. We affirm the trial court's order.
Generally, the granting of a bill of review is reviewed under an abuse of discretion standard. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex.App.-Austin 2000, pet. denied). A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Bill of review plaintiffs must ordinarily plead and prove: (1) a meritorious defense to the underlying cause of action; (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake; (3) unmixed with any fault or negligence on their own part. Id. Bill of review plaintiffs claiming non-service are relieved of the first two elements ordinarily required to be proven and will conclusively establish the third element by proving non-service. Id. at 96-97. Non-service includes the failure to provide notice of a dispositive trial setting after a defendant makes an appearance. LBL Oil Co. v. Int'l Power Services, Inc., 777 S.W.2d 390, 390-91 (Tex. 1989).
Because proof of non-service conclusively negates a plaintiff's fault or negligence, the question of service is properly resolved at trial and not by the trial court in a pretrial proceeding if the material facts are disputed. Caldwell, 154 S.W.3d at 97. In this case, the material facts regarding the manner of service are not disputed.
Coker Equipment filed a petition and request for a temporary restraining order on February 11, 1999. Blevins made an appearance at a hearing on a request for an injunction on February 23, 1999. Coker Equipment filed a motion for summary judgment. On October 21, 1999, the trial court signed a notice setting the motion for summary judgment for a hearing on November 29, 1999. An order authorizing substituted service under rule 106 was signed on November 4, 1999. The order authorized service "by leaving a copy of the citation and petition attached to the door or with anyone over sixteen (16) years of age at 21375 S. Highway 281, San Antonio, Texas or in such other manner as a Court finds will be reasonably effective to give the Defendant notice of this suit. . . ." The officer's return states that he received the notice setting the motion for summary judgment on October 25, 1999, while the return states that he served the notice on October 4, 1999 "by delivering to Robert Blevins via Rule 106." Blevins states in his affidavit that he never received notice of the hearing. The process server states in his affidavit that he delivered a copy of the notice on November 4, 1999. The process server further states, "The precept to serve notes that it was executed on October 4, 1999. This was a typo." Finally, the process server states that he delivered the notice by "posting it on the gate in front of 21357 Highway 281 South." The summary judgment entered by the trial court does not contain any recitals regarding service.
When a trial court orders substituted service under rule 106, the only authority for the substituted service is the order itself. Vespa v. Nat'l Health Ins. Co., 98 S.W.3d 749, 752 (Tex.App.-Fort Worth 2003, no pet.); Dolly v. Aethos Communications Sys., Inc., 10 S.W.3d 384, 388 (Tex.App.-Dallas 2000, no pet.). Therefore, the requirements set forth in the order must be strictly followed, and any deviation from the trial court's order authorizing substituted service necessitates a reversal of the default judgment based on service. Vespa, 98 S.W.3d at 752; Dolly, 10 S.W.3d at 388. A verification on a return of service must verify the facts relating to the act of service. Dolly, 10 S.W.3d at 389. "A blanket statement, as in the instant case, that the citation was executed pursuant to the rules of civil procedure does not verify the specific facts relating to the act of service" and "does not verify compliance with the requirements set forth in the trial court's order" authorizing substituted service. Id.
In this case, Blevins moved for summary judgment on the ground that no notice of the summary judgment setting was served on him. Summary judgment was proper on this ground because: (1) the return of service failed to verify the facts relating to the act of service because it merely stated that citation was delivered "via Rule 106"; (2) the process server's affidavit reveals that he posted the notice on the gate rather than on the door at the given address; and (3) the global provision in the order authorizing service in such other manner as a court finds reasonably effective is not sufficiently specific to authorize another type of service. See Dolly, 10 S.W.3d at 388-389; see also Rivers v. Viskozki, 967 S.W.2d 868, 870 (Tex.App.-Eastland 1998, no pet.) (noting order authorizing substituted service must specifically prescribe manner of service).
Coker also contends that Blevins was not entitled to relief because he failed to exercise due diligence to avail himself of all adequate legal remedies against the underlying judgment before filing a bill of review. See Olivares v. State, No. 04-04-00744-CV, 2005 WL 1875712, at * 1 (Tex.App.-San Antonio Aug. 10, 2005, no pet. h.) (noting appellant claiming non-service must still exercise due diligence to avail himself of all adequate legal remedies). Blevins stated that he first received notice of the judgment in September of 2000 when he returned from working out of state. Although Coker presented several affidavits stating that notices regarding the judgment were mailed to Blevins in time for him to pursue other remedies, these affidavits do not controvert Blevins' factual assertions that he did not receive any such notices in time to avail himself of other remedies. Hamel v. Providence Constr., Inc., No. 04-03-00766-CV, 2004 WL 1968277, at *2-3 (Tex.App.-San Antonio Sept. 8, 2004, pet. denied) (noting affidavits establishing attempts to serve and that regular mail was not returned did not controvert defendant's factual assertions that notice was not received).
Because Blevins conclusively established that he was not properly served with notice of the summary judgment setting and that he did not receive notice of the judgment in time to avail himself of other legal remedies, we affirm the trial court's order.