Min v. Avila

Decision Date06 May 1999
Docket NumberNo. 01-98-00727-CV,01-98-00727-CV
Citation991 S.W.2d 495
PartiesSung Man MIN and Ann Min, Appellants, v. John Manuel AVILA, Appellee. (1st Dist.)
CourtTexas Court of Appeals

Langdon Milton Smith, Houston, for Appellants.

Andrew P. McCormick, Houston, for Appellee.

Panel consists of Chief Justice SCHNEIDER and Justices O'CONNOR and TAFT.


TIM TAFT, Justice.

Appellants, Sung Man Min and Ann Min, appeal a summary judgment granted on limitations after the trial court set aside a default judgment by granting a bill of review. We affirm.

A. The Underlying Case

The Mins sued Avila in May 1994 in Cause No. 633,114, Sung Man Min and Ann Min, Individually and as Next Friends of Mee Min, a Minor. They sought personal-injury damages arising out of a January 1992 automobile collision and moved for default judgment when Avila did not answer. Their motion addressed service on Avila by tracking the recitals in the return of service filed by Harris County Deputy Constable M.G. Hightower, who stated he had served John Manuel Avila at 7:32 a.m. on May 20, 1994, at 444 Harvard # 18, Houston. The Mins' attorney listed 444 Harvard # 18 as Avila's last known address and stated he was not then in the military service, in accordance with 50 U.S.C.App. § 520(1) (1994). The trial court rendered a $108,000 default judgment against Avila on July 28, 1994. The judgment recites Avila was "duly and legally cited to appear," yet "failed to appear and answer and wholly made default."

B. Bill of Review--Default Set Aside

Almost one year later, Avila filed his verified bill of review in this cause to set the $108,000 default judgment aside. Avila denied ever being served with process in Cause No. 633,114, and stated he had no notice of the judgment until May 1995, when a private investigator contacted him and said he had been retained to collect on the judgment. The investigator located Avila at 116 Kendall, Houston, Texas 77003, a different address than alleged in seeking the default judgment. The Kendall address was Avila's home, which he purchased with his wife on September 8, 1992. Avila and his wife each executed affidavits in support of the petition for bill of review and supported those affidavits with copies of the purchasing and real estate lien documents. Avila's petition also described and provided a copy of a June 13, 1995 letter from a deputy constable authorizing levy on Avila's non-exempt property, which prompted him to take immediate action to set the judgment aside by engaging counsel. 1

The record on appeal contains a full reporter's record of the bench trial of the bill of review, at which Avila and Constable Hightower were the only witnesses. The trial court set the default judgment aside and signed findings of fact and conclusions of law to support the ruling. These reflect the following:

• Officer Hightower did not serve Avila with the citation in Cause No. 633,114 at 7:32 a.m. on May 20, 1994, at 444 Harvard # 18, Houston, Texas 77007, but instead served an unknown person at that address.

• Avila was not served on May 20, 1994 because he had moved, almost two years before, from the apartment unit at 444 Harvard # 18, Houston, Texas 77007, to a home he purchased at 116 Kendall, Houston, Texas 77003.

• A family with the surname "Licona" lived at 444 Harvard # 18 on May 20, 1994.

• Avila had never returned to 444 Harvard # 18 after he moved to 116 Kendall.

• Avila was not properly served with process and had no notice of the default judgment signed on July 28, 1994 until May 1995, when he acted with due diligence to set the judgment aside.

• Avila's failure to answer was unintentional.

• The default judgment against Avila was void and unenforceable because he was never served.

C. Bill of Review--Trial of Underlying Case

The default judgment having been vacated, the bill of review proceeded by reopening the underlying case, with Avila's having made a general appearance. See McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965). Avila promptly filed a motion for summary judgment, in which he claimed the two-year statute of limitations barred the Mins' personal-injury claims. TEX. CIV. PRAC. & REM.CODE ANN. § 16.003 (Vernon 1986). Avila offered two reasons why limitations had expired, which the Mins disputed in their response. The trial court granted Avila's motion, without specifying a particular reason, but reserved the claims of the Mins' minor child for trial on the merits. The bill of review judgment and the summary judgment became final for appeal when the trial court signed a judgment reflecting settlement of the claims of the Mins' minor child.

A. Bill of Review--Requisites of Proof

In their first issue, the Mins contend the trial court erred by granting the bill of review because the evidence is legally and factually insufficient to establish that Avila was not served with process.

A bill of review is an independent, equitable proceeding by a party to a former action who seeks to set the judgment aside when it is no longer appealable or subject to a motion for new trial. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998); Medeles v. Nunez, 923 S.W.2d 659, 662 (Tex.App.--Houston [1st Dist.] 1996, writ denied); Commission of Contracts of the General Exec. Comm. of the Petroleum Workers Union v. Arriba, Ltd., 882 S.W.2d 576, 581 (Tex.App.--Houston [1st Dist.] 1994, no writ). Because it is an equitable remedy, the bill is available only when a party has demonstrated due diligence and shown, through no fault of its own, that no other legal remedy was available. Caldwell, 975 S.W.2d at 537-38. 2

A bill of review constitutes a direct attack on a judgment by a party to that judgment. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 709 (Tex.1961) (orig.proceeding); Medeles, 923 S.W.2d at 662; Burrows v. Miller, 797 S.W.2d 358, 360 (Tex.App.--Tyler 1990, no writ). The presence of both parties before the court, here the Mins and Avila, is one factor that distinguishes Avila's attack on the default judgment as a direct attack and not a collateral attack. See Hunt v. Ramsey, 162 Tex. 133, 345 S.W.2d 260, 264 (Tex.1961); 5 MCDONALD, TEXAS CIVIL PRACTICE § 29:2 at 262 (1992 ed.).

Because Avila's bill of review is a direct attack, we indulge no presumptions in favor of valid issuance, service, or return of citation to support the default judgment. Medeles, 923 S.W.2d at 662; Burrows, 797 S.W.2d at 360; 5 MCDONALD § 29:2 at 56 (Supp.1998) (citing Medeles ). The bill-of-review petitioner may therefore demonstrate that the judgment is invalid for lack of proper service of process, whether or not the face of the record discloses the invalidity and despite recitals of proper service in the judgment under attack. McEwen, 345 S.W.2d at 711; Medeles, 923 S.W.2d at 662; Arriba, 882 S.W.2d at 581; Burrows, 797 S.W.2d at 359-60. A default judgment is void and cannot stand unless the defendant has been served with process in strict compliance with the law, accepted or waived service, or entered an appearance. TEX.R. CIV. P. 124; Medeles, 923 S.W.2d at 663.

To succeed by bill of review, the petitioner must ordinarily allege and prove three elements: a meritorious defense to the cause of action supporting the earlier judgment; which the petitioner could not assert because of the fraud, accident, or wrongful act of the opposing party, or official mistake; untainted by any negligence on the petitioner's part. Caldwell, 975 S.W.2d at 537; West Columbia Nat'l Bank v. Griffith, 902 S.W.2d 201, 205 (Tex.App.--Houston [1st Dist.] 1995, writ denied). When a petitioner for bill of review claims the judgment is void for lack of proper service, and thus violates due process of law, the petitioner need not prove a meritorious defense, nor show fraud, accident, or mistake by the opposing party. Peralta v. Heights Med. Ctr., 485 U.S. 80, 86, 108 S.Ct. 896, 900, 99 L.Ed.2d 75 (1988); West Columbia Nat'l Bank, 902 S.W.2d at 205; Arriba, 882 S.W.2d at 581.

To succeed on his petition for bill of review, therefore, Avila had to establish two elements: lack of proper service and his own diligence in setting the default judgment aside. The Mins confine their sufficiency challenge to the first element.

1. Standards of Review

When, as here, the appellate record contains a complete reporter's record of the trial, we review the trial court's findings of fact under the same standards for legal and factual sufficiency as govern review of jury findings. Arriba, 882 S.W.2d at 582; In the Interest of M.J.Z., 874 S.W.2d 724, 728 (Tex.App.--Houston [1st Dist.] 1994, no writ). In reviewing challenges to the legal and factual sufficiency of the evidence, we review the legal-sufficiency challenge first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981).

In analyzing legal sufficiency, we consider only the evidence and inferences tending to support the challenged finding and disregard all inferences to the contrary. Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986); Arriba, 882 S.W.2d at 582. If any evidence of probative force supports the finding, we must overrule the challenge and uphold the finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989); Arriba, 882 S.W.2d at 582. We may not conclude that evidence is legally insufficient unless it is unreasonable to infer a vital fact from the facts proved in the particular case. Cannon v. ICO Tubular Servs., Inc., 905 S.W.2d 380, 386 (Tex.App.--Houston [1st Dist.] 1995, no writ).

In determining factual sufficiency, we must weigh all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951); Arriba, 882 S.W.2d at 582.

2. No Presumption of Service

The Mins rely on three substantive...

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