Henderson v. Blalock
| Decision Date | 03 August 2017 |
| Docket Number | NUMBER 13-16-00175-CV,NUMBER 13-16-00176-CV |
| Parties | JOE HENDERSON, Appellant, v. MARILYN KAY BLALOCK, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 149th District Court of Brazoria County, Texas.
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Appellant Joe Henderson appeals the trial court's orders granting appellee Marilyn Kay Blalock's motions for summary judgment in appellate cause numbers 13-16-00175- CV and 13-16-00176-CV. We affirm the trial court's order in appellate cause number 13-16-00175-CV, and we reverse and remand in appellate cause number 13-16-00176-CV.1
In 2010, appellant sued appellee alleging that he adversely possessed certain property located in Rosharon, Texas (hereinafter, the Rosharon address). The trial court dismissed the lawsuit for want of prosecution after the case had remained on the court's docket for over three years with almost no activity. Appellant filed a motion to reinstate the lawsuit, which the trial court denied. Appellant then appealed the trial court's decision to the Fourteenth Court of Appeals, but the appeal was unsuccessful. See Henderson v. Blalock, 465 S.W.3d 318, 321-24 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (affirming the trial court's orders dismissing appellant's lawsuit for want of prosecution and denying his motion to reinstate).
In 2014, appellant: (1) refiled the original lawsuit; and (2) filed a bill of review seeking to reinstate the original lawsuit that had been dismissed for want of prosecution. Appellant, now proceeding pro se, filed a notice of appearance in which he identified an address in Houston as his residence and mailing address (hereinafter, the Houston address).
Appellee, also proceeding pro se, filed separate motions for summary judgment seeking to dismiss the refiled lawsuit and the bill of review, respectively. Appellee certifiedto the trial court in each motion that the motion was served on appellant "via certified mail, return receipt requested" to the Rosharon address.
Appellant did not file a response to appellee's motions. Thereafter, the trial court granted both motions and ordered that appellant take nothing on his claims in the refiled lawsuit and the bill of review.3 Appellant filed timely notices of appeal, and these appeals followed.4
By his first issue, appellant contends that the trial court erred in dismissing the refiled lawsuit because he never received notice that appellee had filed the motion for summary judgment.
"Proper notice to the non-movant of the summary judgment hearing is a prerequisite to summary judgment." Rozsa v. Jenkinson, 754 S.W.2d 507, 509 (Tex. App.—San Antonio 1988, no writ) (citing Gulf Refining Co. v. A.F.G. Management 34 Ltd., 605 S.W.2d 346, 349 (Tex. Civ. App.—Houston [14th Dist.] 1980, writ ref'd n.r.e.)). The right to summary judgment exists only in compliance with the Texas Rules of Civil Procedure. Id. The summary judgment movant must comply with all the requirements for proper service before being entitled to summary judgment. Id. (citing Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958)). Because summary judgment is a harsh remedy, a reviewing court must strictly construe the notice requirements. See Chavez v.Chavez, No. 01-13-00727-CV, 2014 WL 5343231, at *2 (Tex. App.—Houston [1st Dist.] Oct. 21, 2014, no pet.) (mem. op.).
Under Texas Rule of Civil Procedure 21a, the movant may serve a motion for summary judgment on the non-movant by mail, among other methods of service. TEX. R. CIV. P. 21a(2). The movant must certify on the motion filed with the court that the motion was, in fact, mailed to the non-movant. Id. R. 21a(e). The movant's certification of service in the motion constitutes "prima facie evidence of the fact of service." Id. Further, the certificate of service in the motion raises a presumption of proper receipt by the addressee. See Mathis v. Lockwood, 166 S .W.3d 743, 745 (Tex. 2005). However, the presumption vanishes if opposing evidence is introduced that the notice in question was not received. See Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 544-45 (Tex. App.—Austin 2004, no pet.); TEX. R. CIV. P. 21a(e) ().
Here, appellee's certificate of service states that she mailed the motion for summary judgment to the Rosharon address. This certification constitutes prima facie evidence of the fact that the motion was served on appellant and operates as a presumption of proper service. See TEX. R. CIV. P. 21a(e); Lockwood, 166 S .W.3d at 745. Appellant counters, however, that he never received the motion.
Our review of the record demonstrates that before appellee mailed the motion to the Rosharon address, she testified under oath and without equivocation that she had long since sold the property on Rosharon to two other individuals; that appellant "lives at[the Houston address]"; and that appellant has "never lived [at the Rosharon address]." Appellee's written pleadings filed with the trial court also represent that appellant "lives" or "resides" at the Houston address. Finally, all of appellant's pro se filings pre-dating the mailing, including appellant's notice of appearance, show that his address is the Houston address, not the Rosharon address. Appellant points out on appeal that the motions were not surprisingly returned to the sender, appellee, undelivered on November 27, 2015 at 12:06 p.m.5
A notice sent by certified mail and returned does not provide the notice required under rule 21a. See TEX. R. CIV. P. 21a(e); see also Chavez, 2014 WL 5343231, at *3. We conclude that appellant has affirmatively demonstrated that he never received noticeof appellee's motion for summary judgment and has rebutted the presumption of proper service. See TEX. R. CIV. P. 21a(e); see also Chavez, 2014 WL 5343231, at *3 (); Transoceanic Shipping Co., Inc. v. Gen. Universal Sys., Inc., 961 S.W.2d 418, 420 (Tex. App.—Houston [1st Dist.] 1997, no writ) ( trial court's default judgment and remanding for a new trial where the evidence affirmatively showed that the defendant did not receive notice of the trial setting because the notice was returned to the sender undelivered); Rozsa, 754 S.W.2d at 509 (). We sustain appellant's first issue in appellate cause number 13-16-00176-CV.6
As previously mentioned, appellant also filed a bill of review to reinstate the original lawsuit, which the trial court had dismissed for want of prosecution. By two issues, appellant contends that the trial court erred in dismissing the 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 a new trial or direct appeal." Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812 (Tex. 2012). A bill of review is not available to reinstate a case dismissed for want of prosecution whenan appellant filed a motion to reinstate and made an unsuccessful direct appeal during which the appellant either raised or could have raised the matters urged in a subsequent bill of review. See Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980); Winters Mut. Aid Ass'n Circle No. 2 v. Reddin, 49 S.W.2d 1095, 1096 (Tex. Comm'n App. 1932, holding approved); see also Barnes v. Deadrick, 464 S.W.3d 48, 53 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing Rizk, 603 S.W.2d at 776).
Here, appellant moved to reinstate the original lawsuit after it was dismissed for want of prosecution. The trial court denied appellant's motion to reinstate, and the Fourteenth Court of Appeals affirmed. See Henderson, 465 S.W.3d at 321-24. Appellant now seeks a bill of review to reinstate the lawsuit. In the bill of review, appellant asserts that the case was improperly dismissed because appellee wrongfully avoided service of process and because the trial court allegedly was under a mistaken belief that the case had to be dismissed. After carefully reviewing the allegations contained in appellant's bill of review, appellant's brief, and the opinion of the Fourteenth Court of Appeals on direct appeal, we conclude that the matters raised in the bill of review either were raised and rejected on direct appeal or could have been raised on direct appeal. Therefore, a bill of review is not available to appellant. See Rizk, 603 S.W.2d at 776 (); see also Reddin, 49 S.W.2d at 1096. Accordingly, we overrule appellant's issues in appellate cause number 13-16-00175-CV.7
In appellate cause number 13-16-00175-CV, we affirm the trial court's order dismissing appellant's bill of review. In appellate cause number 13-16-00176-CV, we reverse the trial court's order dismissing the refiled lawsuit and remand for further proceedings.8
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the 3rd day of August, 2017.
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