Caldwell v. Barnes, 13-93-699-CV

• Decision Date: 10 October 1996
• Docket Number: No. 13-93-699-CV,13-93-699-CV
• Citation: 941 S.W.2d 182
• Parties: Harold CALDWELL, Appellant, v. Robert F. BARNES Appellee.
• Court: Texas Court of Appeals

Page 182

941 S.W.2d 182

Harold CALDWELL, Appellant, v. Robert F. BARNES Appellee.

No. 13-93-699-CV.

Court of Appeals of Texas,

Corpus Christi.

Oct. 10, 1996.

Rehearing Overruled Jan. 23, 1997.

Gus E. Pappas, Dabney, Theis & Pappas, Houston, for appellant.

Thomas O. Matlock, Jr., Kelly K. McKinnis, McAllen, for appellee.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and YANEZ, JJ.

OPINION

YANEZ, Justice.

Harold Caldwell brings this appeal stemming from a $15 million default judgment rendered against him in Hidalgo County, Texas, in 1989. Appellant sought to have the default judgment set aside by filing a bill of review in 1993. ¹ Prior to the commencement of Caldwell's action, appellee Robert F. Barnes had sought a declaratory judgment from the Hidalgo County court declaring that the underlying default judgment was valid. After consolidating both causes, the trial court denied Caldwell's motion for summary judgment on his bill of review, granted summary judgment in favor of Barnes on the bill, and denied appellant's motion for a new trial on the bill. The court granted Barnes's request and issued a declaratory judgment that the final default judgment entered in 1989 was valid and enforceable. By three points of error, appellant contends that the trial court erred by summarily declaring that default judgment valid and denying his request for a bill of review because he was never served with process in the underlying cause. We affirm.

Essentially we must resolve whether appellant waived his right to complain about notice in the underlying suit by not diligently exercising his right to challenge notice when he was first informed about the default judgment. Appellant contends that, regardless of the amount of time which passes subsequent to the entry of a default judgment or his knowledge thereof, it cannot be deemed a valid judgment if he was never served with process. Barnes, however, argues that the trial court was correct in its vindication of the underlying judgment because appellant did not meet an essential requirement for bringing a bill of review. Namely, appellant did not exercise diligence in challenging the default judgment when he first learned of it.

PROCEDURAL HISTORY

In 1989, Barnes sued Caldwell, who is a Colorado resident, and others, alleging various causes of action stemming from business transactions in Texas. ² Barnes attempted to serve appellant with process through certified mail, but the citation was returned to the court labeled "unclaimed." ³ Barnes then arranged for personal service in Colorado through a private process server, Dewayne Perdue. In an affidavit filed with the original court, which he later contradicted, Perdue stated that he personally served appellant with process on July 30, 1989. Appellant never filed an answer to the citation, and an interlocutory default judgment was entered against him on August 21, 1989. After a hearing on damages, the trial court signed the final judgment against Caldwell on December 6, 1989, and severed the cause against Caldwell from the other defendants. There is no evidence in the record that the court sent appellant notice that a default judgment was entered against him.

Nearly two years after the entry of the final default judgment, Barnes domesticated the default judgment in Jefferson County, Colorado, on September 24, 1991, pursuant to the Uniform Enforcement of Foreign Judgments Act. COLO.REV.STAT. ANN. §§ 13-53-101 et seq. (West 1989). Appellant claims that the first time he learned of the Texas default judgment was when he received notice of the domestication on or about September 24, 1991. For reasons which are disputed, appellant did not contest the service in the Texas case at that time. ⁴ The Texas judgment was domesticated in Colorado, and Caldwell did not contest the domestication, which he had a right to do. On June 15, 1992, Barnes filed a civil action in Gilpin County, Colorado, seeking to find and recover assets in enforcement of the domesticated judgment. Appellant's answer to this action did not contest the service of process in the underlying suit. Instead, he defended the action by alleging that the property which Barnes sought to acquire was not really Caldwell's property.

Apparently, it was not until May of 1993 that appellant located Perdue, who admitted that he never personally served appellant in the underlying case, as Perdue was in a different city on the date he allegedly served process. ⁵ Armed with this information, appellant filed a motion in the Gilpin County case attacking the domesticated judgment on this basis, nearly nineteen months after he was put on notice of the default.

Barnes responded by filing an action in Hidalgo County, Texas, Cause No. C-2251-93-D, seeking declaratory judgment that the original default judgment was valid. Appellant answered this suit, and filed a petition for bill of review and injunction in the same court, assigned cause no. C-4218-93-D, seeking to have the underlying default judgment set aside. Barnes argued that laches barred appellant's attack on the judgment. Both parties moved for summary judgment on the petition for bill of review. After a hearing was held on the bill of review, the trial court entered an order granting Barnes's motion for summary judgment, denying appellant's motion for summary judgment and his "bill of review," and ruled that the underlying default judgment was valid.

On October 26, 1993, the trial court signed the judgment and provided findings of fact and conclusions of law. ⁶ However, findings of fact and conclusions of law are inappropriate in a summary judgment, and thus we will not consider their contents on appeal. See Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex.1994); Alcantar v. Edelstein's Better Furniture, Inc., 818 S.W.2d 547, 548 n. 1 (Tex.App.--Corpus Christi 1991, writ denied).

Appellant now urges that the trial court misapplied Colorado law in deciding the merits of the bill of review. He contends that, because he was never served with process in the original suit, the default judgment is void as a matter of law, and should be set aside. Barnes maintains that the trial court was correct in denying appellant's action for a bill of review because appellant was negligent in not utilizing his legal remedies. In particular, Barnes contends that Caldwell should have attacked the Texas judgment when he was allegedly first notified of it in Colorado, and having failed to attack it at the commencement of the Colorado actions, he is estopped to attack it by a bill of review.

SUMMARY JUDGMENT

A summary judgment is appropriate only where a movant establishes that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Randall's Food Mkts. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we must consider any evidence favorable to the nonmovant as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id.

The reviewing court will consider all summary judgment grounds the trial court rules on and the movant preserves which are necessary for the final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626-27 (Tex.1996). Moreover, the appellate court may also, in the interest of judicial economy, consider other grounds which were not specifically ruled on by the trial court, provided that the movant preserved them for review. Id. In his motion for summary judgment, Barnes maintained that, as a matter of law, Caldwell was precluded from bringing the bill because he was negligent in pursuing his legal remedies.

Considering the evidence presented to the trial court in the light most favorable to Caldwell, we note that two citations were issued by the trial court in the original suit. First, service of process was attempted by certified mail; it was sent to the same address in Lakewood, Colorado, which appellant maintained throughout the Colorado proceedings and the appeal of this cause. The citation was returned "unclaimed." The trial court issued a second citation, and Barnes attempted to personally serve Caldwell by hiring a private process server, DeWayne Perdue. Taking the evidence presented by Caldwell as true, we must presume that such personal service of process was never executed, that Perdue's return of service was fraudulent, and that the default judgment against Caldwell was entered without his actual knowledge. There is no evidence that the notice of default judgment was sent to Caldwell, as is required by the Texas Rules of Civil Procedure 239a. ⁷

BILL OF REVIEW

A bill of review is an independent action brought by a party to a former action seeking to set aside a final judgment that is no longer subject to a motion for a new trial, appeal, or writ of error. Ortega v. First RepublicBank, Fort Worth, N.A., 792 S.W.2d 452, 453 (Tex.1990); Transworld Fin. Serv. v. Briscoe, 722 S.W.2d 407, 407 (Tex.1987); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). It is an equitable proceeding designed to prevent manifest injustice. French v. Brown, 424 S.W.2d 893, 895 (Tex.1967). Because of the fundamental importance that judgments be accorded finality, bills of review seeking relief from otherwise final judgments are scrutinized by courts of equity "with extreme jealously." Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984); Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). The fact that an injustice occurred is not sufficient cause to justify relief by bill of review, which relief is accorded on narrow grounds. Hagedorn, 226 S.W.2d at 998; Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex.App.--Houston [1st Dist.] 1992, writ denied).

In order to be eligible for a bill of review, a movant must...