404 S.W.3d 58
Tex. App.2013Background
- Li appeals bill of review after a default judgment against him; service of process in underlying suit was improper; Li learned of the suit only via post-judgment notice; trial court denied bill of review; November 5, 2008 dismissed with prejudice; March 3, 2009 default judgment was rendered outside plenary power; court reverses and renders setting aside March 3, 2009 judgment while leaving November 5, 2008 dismissal intact; Li sought fees but failed to prove them at hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Li properly served with process in the underlying suit? | Li asserts no valid service occurred. | DDX Group contends service was effected on Li’s father at the Field Yucca Lane residence. | Yes, Li was not properly served; voids the default judgment. |
| Must Li file a restricted appeal before a bill of review? | Li was not required to pursue restricted appeal given lack of service. | Restricted appeal could apply to fault for not timely filing. | Li not required to file restricted appeal; failure to file is not fault. |
| Did Li have notice and was there timely action to file after actual notice? | Actual notice after judgment does not cure lack of service; timely filing not required to prove fault. | Receipt of envelope could show notice and fault in pursuing remedies. | Lack of service establishes entitlement to bill of review; notice does not defeat claim. |
| Should Li be awarded attorneys’ fees for the bill of review proceeding? | Fees may be awarded to protect due process. | Li did not prove entitlement or amount at trial. | Fees denied; issue waived for lack of proof. |
Key Cases Cited
- Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) (bill of review requires meritorious defense unless lack of service)
- Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979) (foundational standards for bill of review)
- Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795 (Tex. 2006) (due process cured by lack of service; void judgment)
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (non-service establishes elements for bill of review)
- Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809 (Tex. 2012) (diligence in pursuing remedies; interplay with service)
- Gold v. Gold, 145 S.W.3d 212 (Tex. 2004) (restricted appeal relevance to bill of review fault)
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (finality of judgments and interpretation of language)
- L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996) (plenary power and time limits for modification)
- Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536 (Tex. App.—Houston [1st Dist.] 2003) (plenary power extension timing)
- Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63 (Tex. App.—Houston [1st Dist.] 1992) (bill of review scope where final judgment fully adjudicates controversy)