## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00336

- CV

___________________________

On Appeal from the 158th District Court Denton County, Texas Trial Court No. 15

- 04164

- 158
Before Sudderth, C.J.; Gabriel and Womack, JJ. Memorandum Opinion by Justice Gabriel 

### SRMOF II 2012

- 1 T RUST 

### , U.S. B ANK 

### T RUST 

### N ATIONAL 

### A SSOCIATION 

### , NOT IN ITS 

### I NDIVIDUAL 

### C APACITY BUT 

### S OLEL Y AS 

### T RUSTEE 

### , Appellant /Cross

- Appellee

V


### . K EVIN 

### A LAIMO 

### , Appellee / Cross

- Appellant2 MEMORANDUM OPINION
In October 2014, Kevin Alaimo filed a suit to qui et title to a residence in
Aub rey, Texas. On December 15, 201 4, he obtained a f inal def ault judgment declaring him to be the fee owner of t he residence

. Claiming that the default judgment was void , SRM OF II 2012

- 1 Trust, U. S. Bank Trust National Association, not in its Individual Capacit y but Solely as Trustee (U.S. Bank) subsequently f iled a n amended petition for bill of review seeking to s et aside that default judgment. The
trial cour t granted the amended petition and set aside the def ault judgment. The parties then p roceeded to adju dicate the merits of Alaimo ’ s q uiet

- title suit

. Alaimo moved for summary jud gment
. T he trial court granted the m otion an d signed a final judgment on August 2, 201 8, that declared Alaimo to be the fee owner of the
residence. Bo th Alaimo and U.S. Bank hav e appealed.
Alaimo ’ s appeal raises two issues challenging the trial court ’ s order gr a nting
U.S. Bank ’ s amended petition for bill of review. U.S. Bank ’ s appeal presen ts three
issues challe nging the trial court ’ s subsequent order granting Alai mo ’ s m otion for
summary judgment. We conclude the trial court abused its discretion by granting U.S.
Bank ’ s amended petition for bill of review

. Therefore, we reverse that order, vacate
the trial court ’ s August 2, 2018 final judgment, and render judgment reinstatin g the December 15, 2014 default judgment

.3 I. BACKGROU ND 1 In early 2008, James Fann borrowed $121,539 to purchase a residence in Aubrey, Texas. To s ecure that debt, he executed a deed of trust that ultimately was assigned to U .S. Bank

. Fann was also subje ct to a homeowner’s

- asso ciation agreement that gave the association a lien on the residence to secure his obligations under that agre ement. The lien created under the homeowner ’ s

- association
agr eement was subordinate to the deed of trust. Fann eventually de f aulted on his obligations under the homeo wner ’ s

- association agreement , the association for e closed on its lien, and Mark DiSanti purchased the re sidence for $2 ,300 at the November 3,
2009 foreclosure sale

. On September 14, 2011, DiSanti convey ed the r esidence to the Bradford 790
Land Trust (Bradford)

. A fter that conveyance , U.S. Bank fil ed a not ic e stating its
intent to foreclose on its lie n under the deed of trust. In response, Bradford filed a quiet

- title suit , seeking a declar ation that U.S. Bank ’ s deed of trust was unenforceable
because it s power of sale w as ba rred by limitation s . On January 6, 2014, the d istrict

1 This case h as a complex procedura l h istory, which includes two pre vious appeal s and one ma n damu s proceedin g in t his court, as w ell as one m andamus proceeding in the supreme court

. S ee Alaimo v. U .S. B ank Tr. Nat ’

l A ss ’ n , 551 S.W.3d 212, 213 ( Tex. App.

— Fort Wo rth 2 01 7, n o pet.) ; In re Ala imo , No. 02

- 15

- 00 321

- CV, 2015 WL 7019874, at *1 (Tex. App

. — For t W o rth Nov . 12, 2015, orig. pro cee ding [ma n d. denied] ) (mem. op. ); Alaimo v. SRMOF II 2012

- 1 Tr

. , No. 0 2

- 15

- 00217

- CV, 2015 W L 4776097, at *1 (Tex . App

. — Fort Worth Aug

. 1 3, 201 5, n o pet.) (m em. op.)

. We omi t the details of this procedural history from our discus sion e xcept to t he ext ent they are necessary to our an alysis of the issues raise d in th is ap peal

. See Tex . R. Ap p . P. 47.1.4

court signed a default judgment finding that U.S. Bank had been duly served b ut had
failed to answer an d rendering judgment in Bradford ’ s favor

. In its de fault judgment, t he trial court dec reed that Bradford owned the
reside nce and that U.S. Bank hel d no ownership interest in the residence , and it permanently enjoin ed U.S. Bank from enforcing the power of sale in its deed of trust.
On February 21, 2014, Bradfor d conve yed the res idence to Alaimo. A few m onths later, U.S. Bank filed and, on July 25 , 2014, obtained, a bill of review declaring the
d istrict court’s January 6 , 201 4 default judgment void and of no effect

. On O ctober 23 , 2 01 4, Alaimo initiated t rial court cause number 14

- 08565

- 158 , a quiet

- title suit alleging that since the time he had acquired the residence, U.S. Bank
had attacked the Ja nuary 6, 2014 default judgment that wa s in his chain of title and
had attempted to reasse rt an own ership interest in the residence

. Alaimo a lleged that he was a bona fide p ur chaser of the residence , and he soug ht a declaration that as such, he owned the residence free of any encumbrances claimed by U.S. Bank

. On December 15, 2014, t he tri al court signed a def ault judgment fin ding th at U.S. Bank
had been duly served but ha d failed to answer
. The trial court rendered judgmen t d eclaring that Alaimo was a bona fide purchaser of the residence and owned it free of
any liens or en cumbrances that ar ose prior to the time he had purchased it from
Bradford

.5

Presumably unaware of the trial court ’ s December 15, 2014 defa ult judgment,
U.S. Bank foreclosed on its deed of trust and purchased t he residence for $219,661.15
at the f orecl osure sale in April 20 15

. On May 18, 2015, U.S. Bank initiated this bill

- of

- review proceeding , docketed
as trial court cause numbe r 15

- 04164

- 158, seeking to set aside the December 15 , 2014 default judgment in trial court cause number 14

- 0856 5

- 158

. U.S. Bank alleged it was

ne ver properly served with process in trial court cause number 14

- 08565

- 158 and that consequently, th e December 15, 2014 default judgment the trial court rendered in that

cause w as void. U.S. Bank ame nded its b ill of review and set it for hearing on July 8,
2015

. A fter co nducting a hearing, t he trial court granted the amended bill of revi ew and set aside the December 15, 2014 default judgment

. This is the orde r Alaimo
chal lenges on appeal

. After the tr ial court set aside the December 15, 2014 defa ult jud gment, U.S.
Bank a nd Alaimo proceeded to litigate Alaimo’s quiet

- title claims against U. S. Bank

. The pa rties eventually filed cros s

- motions for summary judgmen t, and the trial court
ultim ately rendered a final summary judgm ent in Alaim o ’ s favor, declaring that he
owned the residence, that U.S. Bank ’s deed of trust was unenforceable, and that the April 7, 2015 f

oreclosure sale was voi d ab initio. This is the orde r from which U.S.
Bank appeals.6 I I. ISSUES ON APPEAL In his appeal, Alaimo argues the tria l court abuse d its d iscretion by granting
U. S. Bank ’ s amended petition for bil l of review an d settin g aside the December 15,
2014 default judgment tha t quieted tit le to the residence in him. He raises two is sues. In the first , he argues that the trial co urt ’ s granting the bill of review was an abuse of
discret ion because U .S. Bank f

ailed to plead an d prove the three es sential eleme nts necessary to prevail on a bill of r eview. An d in the second, he contends the r ec ord
do es not show a defect in service of process , which was the bas is of U.S. Bank ’ s amended b ill of review.
U.S. Bank ’ s appeal chal lenges the trial court ’ s final summary judgment in
A laimo ’ s favor

. U.S. Bank presen ts th ree issues. First, it contends that Alaimo failed

to m eet his summary

- ju dgment burden to establish that U.S. Bank ’ s lien was barred by
limitations

. Second, it argues the trial court abused its discretion by striking a counterclaim it filed. And t hir d, it contends Al aimo did not establish that h e acquired
the residence a s a b ona fide purchaser for value.
W e conclude that Alaimo ’ s first issue is meritorious and that it should be
sustained . And because th at issue is dispositive , we do not address the parties ’ remaining issues

. See T ex . R. App. P. 47.1

.

I I I. STANDARD OF REV IEW
We review a trial court ’ s ruling on a bill of review for an abuse of discretion.
Davis v. Smith , 227 S.W.3d 299, 302 (Tex. App.

— Houston [1 st Dist.] 2007, no pet.).7

To determine whether a trial court abu sed it s discretion, we must deci de whether the
trial court acted w

ithout reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreas on able. Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cum mings , 1 34 S.W.3d 835, 838

– 39 (T ex. 2004).
IV
. DISCUSSION
A. A PPLICABLE L

AW A bill of review is an equitable proceedi ng to set aside a judgment that is no longer appealable or su bject to a motion for new trial. Transworld Fin. Servs. Corp. v.
Briscoe , 7 22 S.W

. 2 d 407, 407 (Tex. 1987). Ordinarily, t o prevail on a bill of review , the petitioner must plead and prove (1) a meritorious defense to the cause of action supporting the judgment (2) that he was preve nt ed from making by the fraud, accident, or wrong ful act o f the opposing party (3) unmixed with any fault or negligence of his own. Id. at 407

– 08. However, w hen a bill

- of

- review petitioner alleges that it was not served with process in the proceeding that resulted in the default judg ment under attac k , the three ordinary bill

- of

- review requirements are modified

. See Ross v. Nat ’l Ctr. f or the Emp ’t of
the Disabled

, 197 S.W.3d 795, 797

– 98 (Tex. 2006) ; Caldwell v. Barnes , 154 S.W.3d 93,
96

– 97 (Tex. 2004)

. An allegation of non service relieves the petit io ner of the first two
bill

- of

- review requirement s. See Ross , 197 S.W.3d at 797

– 98 ; C aldwell , 154 S.W.3d at
96

– 97 ; Langdon v. Gilbert

, N o. 03

- 14

- 00491

- CV , 2014 WL 7464095 , at *2 (Tex. App.

—8

Austin Dec. 31, 2014, no pet.) (mem. op.) . But the petitioner mus t st i ll prove the
third requirement

— that the judg ment was rendered unmixed with any fault or negligence of its own. Caldwell , 154 S.W.3d at 97 ; see Langdon , 2014 WL 7464095, at
*2. This third requir ement is conclusively established if the petitioner can pr ove tha t it was never served with process. Cal dwell , 154 S.W.3d at 97

. T he petitioner has the burden of proving that it was not served with process

. Id. In short, a d efendant who alleges and proves it wa s not served with process is entitled to a bill o f r eview without a further showing, because the Constitution discharges the first bill

- of

- review requi rement, and lack of service establishes the second and third. See Ross , 197 S.W.3d

at 797

. A bill of review is a direct attack on a trial court ’ s judgm en t. Valdez v.
Holl en beck , 465 S.W.3d 217, 226 ( Tex. 2015 )

. In a direct a ttack on a default judgment ,
t here is no presumption in favor of valid issuance, service, or return of citation.
Garcia v. Enni

s , 5 54 S.W.3d 209 , 213 (Tex. App.

— Fort Worth 2018 , no p et.). Rather, for a default judgment to withst and direct attack , strict compliance with the applicable
rules for issuance, service, and return of citation must affirmatively appear on the
record

. Pri

mate Constr., Inc. v. Silver , 884 S.W.2d 151, 152 (Te x. 1994) ; Garcia , 554 S.W.3d at 213

. If the reco rd does not affirmatively show strict complian ce, any attempted service of process is rendered invalid and of no effect. Uvalde Country Club
v. Martin Li

nen Supply Co. , 690 S. W.2d 884, 885 (Tex. 1985) ; Garc ia , 554 S.W.3d at 213

– 14

.9 B
. A NALYSIS In his f ir st issue, Alaimo contends the t rial court abused its discretion by granting U.S. Bank ’ s amended petition for bill of review because U.S. Bank fa iled to satisfy the requirements necessary to prevail on a bill o f review.
1. U.S. Bank Present ed The Trial C ourt With A Single Theory For Setting

As ide The Default Judgment
U.S. Bank based its amended petition for bill of review on the sole t heory that
it had n ot been served with process b e c a u s e Alaimo had failed to strictly comply with rule of civil p rocedure 99 ’ s require ment that citation be directed to th e defendant

. See
Tex. R . Civ. P. 99(b). According to U.S. Bank, the record conclusively demonstrated
Alaimo ’ s failure to comply with rul e 99 because the cita tion and the return of service
reflected that cit ation had been directed to “U.S. Bank Trust National Association” in its individual capacity , wher e as the default judgment reflected that the entity named as
the defendant in Alaimo ’ s suit was “ U.S. Bank Trust National Asso ciation , as Trustee
of the SRMOF II 2012

- 1 Trust

. ” 2 U.S. Bank attached cop ies of the citation, t he
return of service , and the default judgment to its petition

. U.S . Bank did no t present
any other grounds for setti ng aside the default judgment other than its claim that
Alaimo failed to d irect citation to the de fendant as rule 99 required

.

2 U.S. Bank relied on a restricted appe al cas e to support this allegation. See Rone Eng’g Serv., Ltd. v. Culberson , 317 S.W.3d 50 6, 509 (Tex. App.

— Dallas 2010, no pet.) (concluding th at the record did not affirm ativ ely demonstrate the en tity named in the d efault judgment had been served with p ro cess when the return of service reflected a different name).10

In arguing that the trial court ’ s order granting U.S. Bank ’ s bill o f review was an abuse of discretion , Ala imo devote s his entire brief to ex plaining why U.S. Bank ’ s

non service argument based on rul e 99 lacks merit

. And he can hardly be faulted for doing so. The trial court did not file findings of fact or conclusions of la w. But

ne vertheless, it was U. S. Bank ’ s burden to pro ve that it was not served with process , and since the trial court granted U .S. Bank ’ s amended petition for bill of review , it is
not unreasonable to think that it must have d one so based upon the only theory U. S.
Bank presented to it.
2
. On Appeal, U.S. Bank Raises New Grounds For Setting A side The Default Judgment
I n its res po nse brief, U.S. Bank has not respond ed to the arguments Alaimo
raise s in his brief, nor has it made any attempt to defend the trial cou rt ’ s granting of
its amended petition for bill of review on the ground that Alaimo failed to strictly comply with rul e 99

. To th e contrary , as U.S. Bank ’ s cou nsel can didly conceded at oral argument, U .S. Bank ask s us to affi rm the trial court’s ruling granting its amende d petition f or b ill of rev

iew based on two arguments that it never presented to the trial

court
. Both of th ese new argument s assert that Alaimo failed to strictly comp ly with
the applicable re qu ir ements for servic e of citation through the secretary of state under chapter 505 of the estates code , the st at u te under which Alaimo sought to serve process upon U.S

. Bank

.11

In particular , U.S. Bank first argues that among the requirements to effect

serv ice under chapter 505 is the requirement tha t a plaintiff must p l ead adequat e jurisdictional facts , yet Alaimo ’ s original petition shows that he did not do so, thereb y demonstr ating he failed to strictly comply with chapter 505 ’ s r equirements for service of process

. See U. S. Bank Nat ’ l Ass ’ n v. TFHSP LLC Series 6481 , 487 S .W.3d 715, 716,
719

– 21 (Tex . A p p.

— Fort Worth 201 6, no pet .)

. Alterna tively, U.S. Bank argues tha t Alaimo failed to strictly comply with chapter 505 ’ s requirements fo r service of process
because the certificate of service ref lects that Alaimo directed the secret ary of state to
f orwa rd the process to U.S. Bank at a different address than the one U.S. B an k had on
file w ith the secretary of state when Alaimo filed his suit

. U.S . Bank mainta ins that although it did not present the se argu ments t o the
trial court, we can
—

indeed, we must

— nevertheless affirm the trial court ’ s granting of
its amended petition f

or bill of review based on them

. Not so. In maintaining that

we should affirm the trial court ’ s order based on arguments it never pr esented to the trial court, U.S. Bank , citing to Lev co Construction , Inc. v. Whole Foods Mar ket Rocky Mountain/Southwest L

.P. , invokes the general principle th at an appe llate court should
affirm a trial court ’ s judgment if it is correct on any legal theory that is support ed by
the record

. See 549 S.W.3d 618, 632 (Tex. A p p.

— Houston [1st Dist.] 2017, no pet.) ( “ We review con cl usions of law by the trial court de novo and will uphold them if the judgment can be sustained on any leg al theory supported by the evidence. ” )

.12

But this pri nciple does not extend to legal theories that were never presented to

t he trial court. Victori

a Gardens of Frisco v. Walrath , 257 S.W.3d 284, 290 (Tex. App.

— Dallas 2008, pet. denied) ( declin ing to affi rm the trial court ’ s order based on a legal theory that was not presented to the trial court , noting that “ [w]e must uphold a lower court judgment on a ny legal theory befor e it, even if the court gives an incorrect reason for its judgment ” (quoting Guar. C ty

. Mut. Ins. Co. v. Reyna , 709 S.W.2d 647, 648 (Tex.1986 ) ) ; se e Keller v. Keller , No. 02

- 17

- 00466

- CV, 2018 WL 4782162, at *4 n.3 (Tex. App.

— Fort Wor th Oct. 4, 2018, no p et.) (me m. op.) ( declining to consider arguments on appeal as ground s for affirming t he trial court ’ s order when those arguments were not raised in the trial court). The record reflects, and U.S. Bank ’ s counsel conceded , that the argu m en ts in U.S. Bank ’ s r esponse bri ef were not made to the trial court. According ly, we d ecline to consider them as a basis for affirming the
trial court ’ s order granting its amended petition for bill of review.
But even if U.S. Bank could rely on these new ar guments, they would not supply a basis for affirming the trial court’s ruling on U.S. Bank’s amended petition
for bill of r eview.
Consider first U .S. Bank’s argument that Alaimo failed to strictly comply with chapter 505’s requirements for service of p ro cess because he failed to plead sufficient jurisdictional facts in his original petition. That argument would fail because the original petition U.S. Bank relies upon was filed in the cause Alaimo originated (trial
court cause number 14

- 08565

- 158) but was not made a part of the trial court’s recor d13

in th e bill of review proceeding (trial court cause number 15

- 04 164

- 158): U.S. Bank did not attach that document to its amended petition for bill of review, it did not
in troduce that document into evidence a t t he bill of review hearing, and it did not ask the trial court to take judicial notice of that document. See Alaimo , 551 S.W.3d at 214

– 15 (observing that a bill of review proceeding challeng ing a default judgment is not like a motion for new trial, whic h i s filed in the same original cause; rather , a bill of review is an entirely separat e suit that is filed under a different cause number). We acknowledge that Alaimo’s original petition in cau se number 14

- 08565

- 158 appears in the clerk’s record that the t ria l court clerk filed in this appeal

. However, in determining whether the trial court abused its discretion by granting U.S. Bank’s amended petition for bill of review, the scope of our review is limited to t he record in
the trial court when it ruled

. S ee Perry v. Del Rio , 66 S.W.3d 239, 259 (Tex. 2001) (“[I]t
is well

- settled in Texas that an appellate court’s review is confined to the record in the
trial court when the trial court a cted. ”); see also Kalakonda v. Aspri Invs., LL C , No. 04

- 15

- 00114

- CV, 201 5 W L 8384771, at *2 n.4 (Tex. App.

— San Antonio Dec. 9, 2015, pet. denied) (mem. op.) (refusing to consider documents from a different trial court cause number that were filed in supple menta l clerk ’ s record because they were not
bef ore the trial court when it entered its judgment). Because Alaimo’s original petition was not in the trial court’s record when it ruled on U.S. Bank’s amended petition for bill of review, that docu ment cannot provide a basis to affirm the trial court’s ruling. See Perry , 66 S.W. 3d at 259; Kalakonda , 2015 WL 8384771, at *2 n.4.14

U.S. Bank’s argument that Alaimo failed to comply with chapter 505’s service requirements because he directed the secretary of state t o forward process to U.S.
Bank at th e wrong address would also fail. U. S. Bank argues that at the time Alaimo filed his suit, it had registered “350 North Rober t Street, St. Paul, MN 55101 ” as the
address to which the secretary of state should forward process

. But the secretary of
state’s return of service shows that it had fo rwarded the process to U.S. Bank at a
different address: “ 350 N. Robert Street, St. Paul, MN 55101.” U.S. Bank argues that the missing “orth” after the “N” in the address was a material difference from its registered address, and it contends this dif fe r ence establishes that it was not served with process becaus e under e states code section 505.005, the secretary of state is
req uired to forward process to the address a foreign corporate fiduciary has registered with the secretary of state. This argume nt turns on U.S. Bank’s contention that when Alaimo filed his su it,
the address for forwardin g of process that U.S. Bank had on file with the secretary of

state had “North” spelled out. But U.S. Bank made no showing in the trial court to prove that fact. O n appeal, U.S. Bank attemp ts to e stablish that fact by relying on an exhibit Alaimo attached to his original petition in cause number 14

- 08565

- 158. But as we have already explained, that document was not part of the trial court’s record in
th e bil l of r ev

i ew proceeding at the time it ruled and thus cannot provide a basis for establishing U.S. Bank’s registered address at the time Alaimo filed suit. See Perry , 66 S.W.3d at 259; Kalakonda , 2015 WL 8384771, at *2 n.4. Th us, U.S. Bank made no15

showing that at the time Alaimo filed his suit, the address it had on file with the secretary of state for forwarding of process was anything other than the 350 N. Robert Street address reflected on the secretary of state’s ce rtificat e. And as the bill of review petit

io n er, it was U.S. Bank’s burden to establish lack of service. See Caldwell , 154 S.W.3d at 97

– 98.

3
. U.S. Bank ’ s Rule 99 Argument Lacks Merit
It i s undispute d that Alaimo sou ght to serve U.S. Ba nk with proc ess under the provisions of chapter 505 of the e s tate s code , which govern service of process on foreign corporate fiduciar ies. See TFHSP , 487 S.W.3d at 718. Before a foreign
corporate fiduciary may qualify or serve as a fid uciary in Texa s, c h apter 505 re quires it
to file certai n documents with the s ec r etary of state

. Id. at 718

– 19. Relevant here, the corporate foreign fiduciary must file an instrument i ndefinite ly and irrevocabl y appointing the secre tary of state as its agent for service of pro cess “ on whom notices and processes issued by a court o f t his sta te may be served in an action or proceeding relating to a trust, estate, fund, or other matter within this state with respect to which
the f iduciary is acting in a fiduciary capacity

. ” Te x. Est. Code Ann. § 505.004(a )(2) ; TFHSP , 487 S.W.3d a t 71 9. And the foreign corporate fiduc iary must file a written certificate designat ing the name and address o f the officer, agent, or other person to
who m the secre tary of state shall forward th ose not ices and pro cesses . Tex. Est. Code Ann. § 505.004(a

)( 3 ) ; TF H SP , 487 S.W.3d a t 71 9

. Section 505.005 provides that

s ervice o f process de scribed in section 5 05. 00 4 (a)( 2) on the secretary of state as agent16

for a foreign c orporate fiduciary “ has the same effe ct as if pe r sonal service had been
had in this state on th e f oreign corporate fiduciary. ” Tex. Est. Code Ann. § 505.00 5(b); TFHSP

, 487 S.W.3d a t 71 9

. Here, U. S. Bank attached to its amended petition for bill of re v iew a copy of the secretary of state ’ s return of ser v ice, which r eci te s that on November 7, 2014, th e secretary of sta te r eceived a copy of the c itation and A laimo ’ s o riginal p etition in the

cause st yled as follows:
Kevin A laimo VS U.S. Bank Trust National Association, As Trustee of the SRMOF II 2012

- 1 Trus t 1 58th Ju di cial District Court Of Denton Coun ty , Texas Cause No: 14085 65158

. The certi fi cate further rec ites that on November 18, 2014, the secretary of state forwarded a copy of the citation and original pe tition by c ertified mail, return rec eipt
request ed, to the following:
U.S. Bank Trust Nation al As sociation Elizabeth Becker, registered agent 350 N. Robert Street St. Paul , MN 55101. Finally, the certificate recites that the process was returned to the sec retary of state ’ s office on December 1, 2014 , bearing the notation, “ Return to Sender, Atte mp t ed Not Known, Unable To Forward

. ” This certificate was filed wi th the trial court on December 3, 2014, and was on file for more than ten day s before th e trial court signed the default judg ment. See Tex. R. Civ. P. 107 (h) ( prohibit ing a default judgmen t u ntil citation and proof of service have been on file for ten days ).17

When service on a statutory agent (such as the secretary of state) i s allowed, as it is under chapter 505 , the designee is not an agent for serving but for receiving process on the def

en d ant ’ s behalf. See Campus Invests. , Inc. v. Cullever , 144 S.W.3d 464, 466 (Tex. 2004). A certificate like the one the secreta ry of state filed here conclusively
establishes that there has been proper citation and service. See id. at 466. This is true

e v en if, as here, the secretary of state ’ s certificate ref lects that the process was

returne d undelivered

. See id. at 465

– 66

. In Cullever , the sup reme court held a default ju dgment was proper where the secretary of state ’ s certificate recited it had rec e i v ed a copy of the citation and plaintiff ’ s petition and had forwarded them by certified mail, but the pr ocess had been returned with the notat ion “ Atte mpted

— Not Kn own . ” See
id. a t 4 65

– 6 6 ( “ A certifi cate like the one here from the [s] ecretary of [ s] tate co nclu sively establishes that process was served. ” ).
But t here is a narrow caveat : where service of a defective citation through a statutory agen t coul d mislead a def endant and lead to an improper default judgment.
Id. at 466. In those cases, a defe nda nt may bring a bill of review and establish those
facts. Id

. However, this caveat does not apply here for the same reason it did not apply in Cullever

. I n Cullever

, the supreme cour t stated that the bill of review petitioner
could not have bee n misled b y a de fective citation wh en , becaus e of its own negligence in failing to comply with its statutory duties t o update the addresses for its registered agen t and registere d office, it nev er received the process from the secretary
of state. See id. So too he re . E ven if the citation was defective as U.S. Bank claimed18

in the t rial court, U.S. Bank never received it from the s ecretary of state

. See id. And
U.S. Bank made n o sho wing that its fa ilure to receive the citation was due to something other than its o wn neg ligence in not complying with its s tatutory duties to keep an updated address on file with the secretary of state

. See id. Thus , under
Cullever , U.S. B ank did n ot show it was misled by the citation

- defect upon which it
relied to establish improper se rvic e . See id. ; s ee a lso Caldwell , 154 S.W.3d at 97 (noting
that it is t he b ill of review petitioner ’ s burden to prove lack of service ). Accordingly,
that alleged c itation defect was no t a basis for setting aside the defau lt jud g ment. See
id. at 466.
In sum , the only basis for setting as ide the default judgment that U.S. Bank pleaded i n its amended bill of rev iew was that it was never served with process
because the citation was defective

. Thus, U.S . Bank assumed the burden o f proving
that it was not se r

ved with proce ss . S ee Caldwell , 154 S .W.3d at 97

– 98. U.S. Bank
fai led to satisfy that burden

. Therefo re, the t rial court abused its discretion by
gra ntin g U.S. Bank ’ s amended petition for bill of review. Accordingly, we sustain
Ala imo ’ s first iss ue . And since that issue is d ispo sitive, we do not addres s the
additional issues the parties h ave raised. See Te x. R. App. P. 47. 1.
V
. CO NCLUSION Having s u st aine d Al aimo ’ s first is sue, we reverse the trial court ’ s order gra n ting
U.S. Bank ’ s amended petitio n for bill of review, vacate the trial c ourt ’ s fina l judg ment19

of Aug ust 2, 2018, and render judgment rein stating the “ F inal D efault J udgment ” of
Decem ber 1 5 , 201 4

. See Tex. R. App. P. 43.2(c).
/s/ Lee Gabriel
L ee Gabriel J u stice
Delive red: A u gust 22, 2019