William A. Vandervlist v. Samara Portfolio Management, Inc.
14-16-00044-CV
| Tex. App. | Jul 27, 2017Background
- In 2009 a default judgment was entered against William A. Vandervlist in favor of Samara Portfolio Management, LLC; Vandervlist filed a bill of review in 2015 seeking to vacate that default judgment.
- Vandervlist alleged he was never served and had no notice of the suit or default judgment until March 2015 when he received post-judgment notice; he submitted an affidavit and testified to lack of notice.
- Samara produced a substitute-service order (May 8, 2009), a process-server affidavit recounting multiple attempts and posting, and filed returns showing certified mail and a door posting in May 2009.
- The trial court admitted the returns of service (over Vandervlist’s hearsay/authentication objection), found no extrinsic fraud, and concluded Vandervlist’s bill of review was barred by the four-year limitations period.
- Vandervlist appealed, arguing (1) the trial court improperly relied on inadmissible/unverified returns and (2) his lack of notice alone established extrinsic fraud to toll limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of notice alone constitutes extrinsic fraud to toll the 4-year bill-of-review limitations | Vandervlist: "not knowing of the lawsuit" is extrinsic fraud sufficient to toll limitations and permit relief under the modified bill of review (no need to prove meritorious defense if never served) | Samara: extrinsic fraud requires purposeful deceptive conduct by the opposing party; mere lack of notice without such deception is insufficient | Held: Lack of knowledge alone does not prove extrinsic fraud; plaintiff failed to show purposeful deceptive acts by Samara, so limitations not tolled |
| Whether the trial court abused its discretion in admitting the returns of service | Vandervlist: the returns were unauthenticated hearsay and should not have been considered | Samara: returns are court records and prima facie evidence of service; admissible as returns of service | Held: Even if returns were disregarded, other evidence and legal standards support the trial court; moreover, returns are prima facie evidence and properly considered |
| Whether Vandervlist established he was never served (affecting entitlement to modified bill of review) | Vandervlist: his affidavit and testimony show he was not served and did not know of the suit | Samara: process-server affidavit, substitute-service order, and filed returns show substitute service and certified mail to Vandervlist’s address | Held: Trial court reasonably credited the documentary and testimonial record showing service attempts and notice; plaintiff did not carry burden to show no service or extrinsic fraud |
| Whether the trial court abused its discretion in denying the bill of review | Vandervlist: denial was erroneous because evidence showed no service and therefore entitlement to relief | Samara: bill was time-barred absent proof of extrinsic fraud; court acted within discretion | Held: No abuse of discretion; trial court’s denial affirmed |
Key Cases Cited
- Valdez v. Hollenbeck, 465 S.W.3d 217 (Tex. 2015) (bill of review basics and four-year limitations)
- PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012) (limitations tolled for judgments obtained by extrinsic fraud)
- Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809 (Tex. 2012) (modified bill of review relief when defendant had no service or notice)
- Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) (elements of bill of review and relief for lack of service)
- Lambert v. Coachmen Indus. of Tex., Inc., 761 S.W.2d 82 (Tex. App.—Houston [14th Dist.] 1988) (fraudulent failure to serve can be extrinsic fraud)
- State v. Bristol Hotel Asset Co., 65 S.W.3d 638 (Tex. 2001) (return of service is prima facie evidence of facts recited therein)