Opinion
14-22-00738-CV
10-24-2023
BOBI DANIEL ZOLTAN D/B/A SST PLASTER, Appellant v. TANGLEY CONDOMINIUM DEVELOPMENT, L.P., Appellee
On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2020-57738
Panel consists of Justices Wise, Zimmerer, and Poissant.
MEMORANDUM OPINION
Margaret "Meg" Poissant Justice
Appellant Bobi Daniel Zoltan doing business as SST Plaster ("Zoltan") filed a petition for bill of review against Tangley Condominium Development, L.P. ("Tangley"), claiming that Zoltan was not served with citation in an underlying lawsuit in which Tangley obtained a default judgment against him. The trial court denied Zoltan's petition for bill of review, and he appeals in one issue that the evidence at trial supported a judgment in his favor. Concluding Zoltan has not shown the trial court erred in denying his requested relief, we affirm.
I. Bill of Review
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) (per curiam) ("Caldwell II "). "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. Plaintiffs claiming lack of service of citation in a bill of review, however, are relieved of two of these elements. Id. If a plaintiff was not served, then constitutional due process relieves the plaintiff from the need to show a meritorious defense. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87 (1988). The plaintiff is also relieved from showing that fraud, accident, wrongful act, or official mistake prevented the plaintiff from presenting such a defense. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).
Thus, bill of review plaintiffs alleging they were not served must still prove the third element: that the judgment was rendered unmixed with any fault or negligence of their own. Caldwell II, 154 S.W.3d at 97. An individual who is not served with process cannot be at fault or negligent in allowing a default judgment to be rendered. Id. Proof of non-service, then, conclusively establishes the third and only element that bill of review plaintiffs are required to prove when they are asserting lack of service of process as their only defense. Id.
Because it is a direct attack, a bill of review must be filed in the court that rendered the original judgment, and only that court may exercise jurisdiction over the bill. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010). Courts have long recognized bills of review rooted in general principles of equity or as prescribed by the Legislature, but courts do not readily grant them "[b]ecause it is fundamentally important in the administration of justice that some finality be accorded to judgments." Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950); see Crouch v. McGaw, 138 S.W.2d 94, 96 (Tex. 1940) (noting that a bill of review requires "something more than injustice").
II. Standard of Review
We review a denial of a bill of review for an abuse of discretion. Joseph v. Jack, 624 S.W.3d 1, 6 (Tex. App.-Houston [1st Dist.] 2021, no pet.) Vandervlist v. Samara Portfolio Mgmt, LLC, No. 14-16-00044-CV, 2017 WL 3194062, at * 5 (Tex. App.-Houston [14th Dist.] July 27, 2017, pet. denied) (mem. op.). In reviewing the denial of a bill of review, every presumption is indulged in favor of the trial court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of discretion. See Joseph, 624 S.W.3d at 6. Under the abuse of discretion standard, challenges to the sufficiency of the evidence are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Vandervlist, 2017 WL 3194062, at *5. A trial court abuses its discretion if it rules without reference to guiding rules or principles. See Joseph, 624 S.W.3d at 6.
III. Analysis
In his amended petition, Zoltan pleaded that Tangley claimed to have personally served him in the underlying lawsuit on April 8, 2019, at 8:20 p.m. at 3724 Ella Boulevard. At trial, Zoltan instead focused on a different date, April 19, 2019. Zoltan testified that on April 19, 2019, he was in Beverly Hills, California for business. Zoltan said that he knew he was in California at that time because he sent a picture of Beverly Hills Boulevard to his wife. He testified that he left for California on April 15 and returned on April 30, 2019. Zoltan further testified that he was not served any lawsuit on April 19, 2019, or anytime while he was in California. As the only witness at trial, Zoltan also testified that the place where he was purportedly served, 3724 Ella Boulevard, was an unfinished construction site. He and his wife were building a new home at that address but never finished it and never lived there.
Neither the picture nor other proof of his presence in California was offered at trial.
Cross-examination of Zoltan focused on his repeated use of 3724 Ella Boulevard in business dealings and as his address in multiple lawsuits.
Zoltan's testimony, assuming the trial court found him credible, was that he was not served when he was in California and specifically not on April 19, 2019. But none of his testimony includes the date of alleged service in Tangley's underlying lawsuit. When Tangley tried to offer the process server's return-which showed service on April 8, 2019, before Zoltan traveled to California-into evidence, Zoltan objected to it as hearsay and the trial court sustained his objection. There is thus no evidence in the record of the date on which the process server purportedly served him.
A return of service does not constitute hearsay and is prima facie evidence that service occurred. See State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 641-42 (Tex. 2001) (stating the return of service in judicial proceedings has long been considered prima facie evidence of the facts recited therein); Vandervlist, 2017 WL 31946062, at * 6.
The source of Zoltan's confusion may be the date on which the process server appears to have signed the return in the presence of a notary-April 19, 2019. However, the return specifies that service purportedly occurred on April 8, 2019.
Zoltan bore the burden of proof to establish that he was not served. See Caldwell, 154 S.W.3d at 97; see also Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012) (per curiam) (noting that third element of bill of review, lack of negligence, is conclusively established "if the bill-of-review plaintiff can prove it was never served with process."). Zoltan was the only witness at trial. The trial court granted judgment against him at the close of his case-in-chief. Given the discrepancy between Zoltan's amended petition for bill of reviewalleging service in the underlying suit on April 8, 2019, his testimony at trial about traveling to California between April 15 and April 30, 2019, and the lack of evidence of any attempt at service of process on April 19, 2019, the trial court could have reasonably determined that Zoltan did not meet his burden of proof. See Caldwell II, 154 S.W.3d at 98 (stating that a plaintiff in a bill of review has the burden of proof at trial). We conclude that the trial court did not abuse its discretion in denying Zoltan's petition for bill of review.
Zoltan's original petition for bill of review also pleaded April 8, 2019, as the purported date of service in the underlying lawsuit.
We overrule Zoltan's sole issue and affirm the judgment of the trial court.