Jones v. Serv. Credit Union, 06-14-00077-CV
| Decision Date | 10 June 2015 |
| Docket Number | No. 06-14-00077-CV,06-14-00077-CV |
| Parties | JACOB T. JONES, Appellant v. SERVICE CREDIT UNION, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law Hopkins County, Texas
Before Morriss, C.J., Moseley and Burgess, JJ.
Jacob T. Jones failed to repay his automobile loan with Service Credit Union (SCU), prompting them to file suit against him. After Jones allegedly failed to respond to requests for admissions, Service Credit Union filed a traditional motion for summary judgment, which the trial court granted. Alleging that he did not receive either (1) the notice of submission of the summary judgment motion or (2) the trial court's final judgment in the underlying case until after the court's plenary power had expired, Jones initiated a separate bill of review proceeding. The trial court denied Jones' petition for bill of review. Because we conclude that there was no abuse of discretion in the trial court's finding that Jones could not show the lack of fault or negligence requirement for obtaining a bill of review, and because Jones had legal remedies available to him at the time he filed this action, he was not entitled to a bill of review, and the trial court did not abuse its discretion in denying Jones' petition. Accordingly, we affirm the trial court's ruling.
On March 8, 2013, SCU filed a suit against Jones after he stopped making payments on his automobile loan.1 The petition was verified by Joanne Cloutler, who swore that the principal balance of the loan was $21,318.38; that demand for payment was made thirty days before the execution of the affidavit; that the principal amount was just, true, and due; and that all just and lawful offsets had been made. Cloutler's affidavit also authenticated several attachments related to the loan transaction, including a copy of Jones' loan application, the loan note signed by Jones, and Service Credit Union's demand for payment.
Jones was properly served on March 29, 2013. Representing himself, Jones filed an unverified, unsigned answer that stated merely, "Answer: Deny all allegations."
On October 30, 2013, Service Credit Union filed a traditional motion for summary judgment arguing that it was entitled to judgment on its suit on sworn account claim because Jones had not filed a verified denial and had failed to respond to requests for admissions, which were over ninety days past due.2 SCU supported its motion for summary judgment with (1) the requests for admissions sent to Jones, (2) the documentation supporting the suit on sworn account claim, (3) Cloutler's affidavit, and (4) an affidavit of attorney fees stating that the reasonable and necessary fees incurred by Service Credit Union totaled $3,500.00.3
Without a hearing, the trial court granted Service Credit Union's motion for summary judgment on February 20, 2014. The trial court's final judgment bore a file stamp of February 20, 2014, but contained a typographical error stating that it was signed on February 20, 2013, before Service Credit Union filed its lawsuit.4 The final judgment awarded Service Credit Union theprincipal sum of $21,318.38, court costs of $345.00, pre-judgment interest at the rate of 8.7 percent per annum, and attorney fees in the amount of $3,500.00. On February 27, 2014, the district clerk sent Jones notice of the final judgment at the address listed in the court's file.
Jones did not appeal, allegedly because he failed to receive notice of the final judgment until after the trial court's plenary power expired. Accordingly, on May 28, 2014, Jones filed a bill of review with the trial court, which argued (1) that a default judgment was improperly taken against him because Service Credit Union failed to provide him notice of a final hearing and (2) that the trial court's final judgment was void because its date preceded the date Service Credit Union filed its petition.5
At the bill-of-review hearing, Jones' counsel acknowledged that Jones was served with the summary judgment motion, but argued that the motion was not set for a hearing and that Jones was not otherwise provided with notice of the date the trial court would submit the matter for decision. The trial court clarified that no hearing was set on the motion for summary judgment.6
Jones also testified at the hearing that he first acquired actual knowledge of the judgment against him on April 28, 2014. He further requested that the trial court take judicial notice that the judgment was signed on February 20, 2014, and the trial court did so.
Jones attempted to explain why he had failed to appeal the trial court's judgment. He explained that the address in the court's file was his mother's address and that he used that address when he was in the military. Jones claimed that, although the final judgment was sent to his mother's address, he did not receive it because he had moved. On the record, the trial court noted that although Jones claimed he "told someone on the phone that [he] was moving," Jones had not given the trial court any notice that he was moving or had moved. When pressed by the trial court, Jones testified that he did not receive any of the court's notices because (1) he was not picking up his mail at the old address and (2) his mother did not let him know that he had received the important documents in the mail. Jones told the trial court, "I could have received mail at th[e] address" the court had on file.
In denying Jones' bill of review, the trial court found that Jones received notice of the final judgment in February 2014, and that he failed to timely exhaust available remedies.7 In its written findings of fact, the trial court found the following:
In compliance with Tex. Rules of Civil Procedure 306a(3), the clerk of the court immediately sent notice of court order and a copy of the order granting summary judgment and final order on February 27, 2014.
Jacob T. Jones, Defendant, failed to pursue a motion for new trial or any post-judgments remedies which may have been available to him during the plenary jurisdiction of the trial court.8
Jones argues that the trial court erred in denying his bill of review.
"A bill of review is an equitable proceeding to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial." Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam); see Saint v. Bledsoe, 416 S.W.3d 98, 102 (Tex. App.—Texarkana 2013, no pet); TEX. R. CIV. P. 329b(f). "A bill-of-review plaintiff must ordinarily prove '(1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on [its] own part.'" Saint, 416 S.W.3d at 102 (quoting Caldwell, 154 S.W.3d at 96).
However, "those not properly served have no duty to act, diligently or otherwise." Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006). Thus, "when a bill-of-review plaintiff claims a due process violation for no service or notice, it is relieved of provingthe first two elements set out above." Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012); see Caldwell, 154 S.W.3d at 96. Lack of fault or negligence must nevertheless be proved. Caldwell, 154 S.W.3d at 96-97.
"In reviewing the grant or denial of a bill of review, every presumption is indulged in favor of the court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of judicial discretion." Saint, 416 S.W.3d at 101. A trial court abuses its discretion only "if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles." Id. at 101-02 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). "Because it is fundamentally important that finality be accorded to judgments, bills of review are always watched by courts of equity 'with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted.'" Id. at 102 ().
First, Jones argues that because he proved the absence of notice of a dispositive trial setting, he is relieved from proving the first two elements of a traditional bill of review. We agree.
"To be entitled to traditional summary judgment, a movant must comply with the requirements set forth in Rule 166a(c)." In re Estate of Valdez, 406 S.W.3d 228, 232 (Tex. App.—San Antonio 2013, pet. denied). The deadlines to file and respond to a motion for summary judgment are calculated from the date of the summary judgment hearing or its submission date.TEX. R. CIV. P. 166a(c).9 "Generally, a trial court errs when it fails to give notice of the submission date for a motion for summary judgment." Valdez, 406 S.W.3d at 232 (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam)). "The rationale for requiring such notice is that without notice of the submission date, 'the nonmovant cannot know when the response is due.'" Id. (quoting Rorie v. Goodwin, ...
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