Opinion
No. 04-07-00300-CV
Delivered and Filed: February 13, 2008.
Appealed from the County Court at Law No. 5, Bexar County, Texas, Trial Court No. 320653, Honorable Irene Rios, Judge Presiding.
REVERSED AND REMANDED.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Luberta Silgero appeals the trial court's summary judgment granted in favor of River City Care Center in a bill of review proceeding seeking to set aside a default judgment. Although Silgero presents numerous issues in her brief, her basic contentions are: (1) the trial court erred in striking an affidavit that corroborated her testimony regarding absence of service; (2) River City failed to address Silgero's supplemental claims; and (3) River City failed to conclusively establish proper service. We agree that the trial court erred in striking the additional affidavit Silgero submitted to corroborate her testimony on the issue of absence of service. Therefore, we reverse the trial court's judgment and remand the cause to the trial court for further proceedings.
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, however, are relieved of establishing the first two elements, and proof of non-service conclusively establishes the third element. Id. at 96-97.
Silgero's initial bill of review petition claimed non-service. Attached to River City's motion for summary judgment, however, is the citation and officer's return stating Silgero was personally served. In addition, River City attached the affidavit of the officer who stated that he personally served Silgero with citation. Although the law makes no presumptions favoring validity of service in an attack on a default judgment, an officer's return is prima facie evidence of the facts recited therein. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex. 1994); Garza v. Attorney Gen., 166 S.W.3d 799, 811 (Tex.App.-Corpus Christi 2005, no pet.). Recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party. Primate Const., Inc., 884 S.W.3d at 152; Garza, 166 S.W.3d at 811.
In response to River City's motion, Silgero submitted her affidavit stating that she was never personally served. Because the recitations in the return of service cannot be rebutted by her uncorroborated statement, Silgero also submitted an affidavit from her son, Lawrence Howard, in which he stated, "On March 21, 2006, I was at BINGO with LUBERTA SILGERO between 6:00 PM to 9:00 PM." The trial court sustained River City's objection to Howard's affidavit as being ambiguous.
Howard's affidavit, however, is not ambiguous. Howard's statement that Silgero was "at BINGO" denotes that Silgero was at some location other than her home at the time the officer stated he personally served her. The phrase "at BINGO" is not reasonably susceptible to more than one interpretation as suggested by River City, as it refers to an exclusive location. Because Howard's affidavit contains allegations that are direct and unequivocal, and perjury can be assigned upon them, see Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Llopa, Inc. v. Nagel, 956 S.W.2d 82, 86-87 (Tex.App.-San Antonio 1997, pet. denied), we conclude the trial court erred in sustaining River City's objection to Howard's affidavit.
Howard's affidavit sufficiently corroborates Silgero's statement on the absence of personal service; therefore, we hold Silgero has satisfied her burden to come forward with competent controverting evidence to raise a material fact issue to preclude summary judgment. See Warren v. Warren Equip. Co., 189 S.W.3d 324, 327 (Tex.App.-Eastland 2006, no pet.) (noting non-movant has burden to come forward with competent controverting evidence to raise fact issue once movant produces sufficient evidence to establish right to judgment). Accordingly, we sustain Silgero's first complaint, and we reverse the judgment of the trial court and remand the cause to the trial court for further proceedings. Because Silgero's first issue is dispositive of her appeal, we need not discuss Silgero's remaining contentions.