Gary Mixon v. Greg Nelson, as Principal of Madex Capital, L.L.C. Nick DeFilippis, as Principal of Blue Star Capital Group, L.L.P. Michael Morini And Norman R. Zukis
03-15-00287-CV
Tex. App.Sep 3, 2015Background
- Plaintiffs (Appellees) sued Mixon for fraud, securities-law violations, breach of contract and fiduciary duty arising from a $200,000 investor payment to Mixon’s Nuwaris, Inc. venture.
- Plaintiffs sought and obtained a court order authorizing substitute service at 116 Cave Circle, Boerne, Texas, after Mixon could not be personally served and his wife, Linda Komperda, testified Mixon lived there.
- A process server filed an affidavit stating he posted the citation and petition on Mixon’s front door on November 2, 2013 in accordance with the substitute-service order; Plaintiffs subsequently obtained a default judgment when Mixon did not answer.
- Mixon later filed a bill of review seeking relief from the default judgment, contending he was never served; at deposition he admitted he had no evidence contradicting the process server’s affidavit and acknowledged knowledge of the suit and served attempts.
- The trial court granted defendant-appellees a no-evidence summary judgment on Mixon’s bill of review and awarded attorneys’ fees to appellees; this appeal challenges those rulings.
Issues
| Issue | Plaintiff's Argument (Mixon) | Defendant's Argument (Appellees) | Held |
|---|---|---|---|
| Legal sufficiency of bill-of-review proof of lack of service | Mixon: his affidavit and deposition denial that he received the posted citation is some evidence of defective service | Appellees: Texas law requires corroborating evidence beyond the petitioner’s denial; Mixon admitted he has none and conceded Vasquez’s affidavit | Court affirmed: no-evidence summary judgment proper because uncorroborated denial insufficient |
| Effectiveness of substitute service by posting | Mixon: argues posting did not effectively provide him notice | Appellees: posting per court order perfected service under Rule 106; actual receipt is unnecessary | Posting per court order was effective; Vasquez’s affidavit carries presumptive weight |
| Materiality/genuineness of Mixon’s denials | Mixon: denies receipt and disputes notices were sent to correct address | Appellees: denials are implausible, not material, and Mixon failed to forward address or notify clerk | Denials were not genuine evidence to create fact issue; summary judgment affirmed |
| Recovery of attorneys’ fees in bill of review | Mixon: argues fees shouldn’t be awarded where bill challenges service and petitioner need not present merits | Appellees: prevailing party in bill of review can recover fees if fees would have been available in the underlying case | Court affirmed fees: fees recoverable where underlying claims authorized fees; no abuse of discretion in awarding them |
Key Cases Cited
- Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) (bill-of-review plaintiff’s uncorroborated testimony insufficient to rebut return of service)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (recitations in return of service carry strong evidentiary weight)
- Meece v. Moerbe, 631 S.W.2d 729 (Tex. 1982) (successful party in bill of review may recover attorneys’ fees when authorized by underlying cause)
- Perez v. Old W. Capital Co., 411 S.W.3d 66 (Tex. App.—El Paso 2013) (service by posting under court order is proper; actual notice not required)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (legal-sufficiency standard for no-evidence review)
- Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106 (Tex. App.—Dallas 2009) (no-evidence summary judgment principles and standard of review)