### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00491- CV

John B ryan Langd on, App ellant

v. Leslie Mathison Gilbert, A ppellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY, NO. C-1 -CV- 14- 0036 53, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n this bill-of-re view proce edin g , Jo h n B r y a n L a n g d o n alleg es that a defa

ult judgme nt

was rende red ag ainst him without proper service of proce ss. L ang don contends that he never

rec eived a copy of the “notice of citation” and lawsuit beca use L eslie Mathison Gilbert, the plaintiff
in the subject lawsuit, provided t h e T ex as Secre tary of State an incorre ct or incomplete addre ss for se rvice . On cr oss-motions for summary judgme nt, the trial court r ender ed summary judgme nt deny ing the bill of revie w. We reve rse the trial court’s judgme nt and rema nd the case to that court for f urther pr ocee dings.

Gi lbert lease d residential proper ty in Austin, Texas, from L ang don, a New J ersey resident. Gilbert alleg es that, afte r she vacated the lease d premises, she asked L ang don to ref und her $4,000 secur ity deposit and a rent overpa y ment of $1,500. When neither a ref und nor an acc ounting was off ere d, Gilbert sued f

or the stated a

mounts plus t reble damag es and a ttorney ’s fe es.After sever al unsucce ssful attempts to eff ect service of proce ss by the local sheriff ’s office in New J erse y , Gilbert tender ed service of proce ss to the Texas Secre tary of State pursuant to the substitut ed-se rvice provisions in section 17.044 of the Civil Practice and Remedies Code. See
Tex. Civ. Prac. & Rem. Code §§ 17.044-.045. Gilbert notified the Secre tary of State that L ang don’s addre ss for service of proce ss was 275 2nd Avenue , L ong Br anch, NJ 07740. The Secre tary of State 1

ce rt i fi ed that proce ss had been sent by cer tified mail to the stated addre ss but was returned as unclaimed. On Marc h 19, 2014, Gilbert obtained a defa ult judgme nt in the amount of $13,600 plus $2,500 in attorney ’s fe es and inter est.

I n an aff idavit fi l ed in the bill-of-re view proce eding , Gilbert’s attorney aver red
t hat he (1) spoke direc tly with L ang don by telephone on Marc h 31, 2014, (2) emailed L ang do n a d i re ct l i n k to the docket on the Travis County Clerk’s website on the same day , (3) spo k e b y telephone with L ang don on other occa sions in the day s that followed, and (4) specific ally discussed the judgme n t with L ang don in those telephone conver sations. Although the trial court reta ined plenar y jurisdiction to set aside the defa ult judgme nt at t h e t i m e of the alleg ed conver sations,
L ang don did not file a motion for newtrial, and the judg ment beca me final.
On April 24, 2014, howeve r, L ang don filed a pe tition for bill of re view to se t a side or vacate the defa

ult judgment on the ba sis of defe ctive ser vice of proce ss. L ang don asser

ted t hat his corr ect addre ss is actua lly 275 2nd Ave. Front , L ong Br anch, New J erse y (empha sis added) , and that service of process t o the address specifie d in the S ecr etar y of State’s c ertificate was theref ore

L a n g d o n ’ s a d d

r e s s w a s n o t p r o v id e d in th e le a s e a g r e e me n t, e v e n w h e r e s p a c e w a s e xp li c it ly 1 made available for that purpose. After Gilbert moved out of the lease d premises, she reque sted his addre ss fro m a rea ltor who evidently had some unspecifie d connec tion to L ang don. The rea ltor supplied the addre ss Gilbert provided to the Sec reta ry of State for

service of proc ess. 2improper. See, e.g. , Uvalde Country Club v. Martin Linen Supply Co. , 690 S.W .2d 884, 885 (Tex.

1985) (“The re are no presumptions in f avor of valid issuance, se rvice , and re turn of citation in the fac e of [an] attack on a defa ult judgme nt [and] failure to aff irmatively show strict compliance with the Rules of Civil P roce dure r ender s the attempted ser vice of proce ss invalid and of no ef fec t.”).
Not long aft er fi l ing his petition, L ang don filed a traditional motion for summary judgme nt asser

ting that he had con cl u s i vely established all the elements nece ssary for a bill of revie w. Gilbert opposed L ang don’s motion and f iled a compe ting summary -judg ment motion. I n both, Gilbert asserted that L an gd on was not entitled to a bil l of review as a matter of l aw because he failed t o ex ercise due diligenc e in pursuing all adequate leg al reme dies, including filing a motion for new tr ial afte r having rec eived notice of the judgme nt while the trial court reta ined plenar y jurisdiction. The trial cour t denied L ang don’s motion and g rante d Gilbert’s motion.
We revie w the district court’s summary judgme nt de novo. Valence Op erat ing C o
. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). Summary judgme nt is proper when there are no disputed issues of materia l fac t and the movant is e ntitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ); Shell Oil Co. v. Khan , 138 S.W .3d 288, 291 (Tex. 2004). W h en , as here , both parties move for
summary judgme nt on overla pping is s u es an d t he trial court g rants one motion and denies the other, we revie w the summary -judg ment evidenc e prese nted by both sides, deter mine all questions
prese nted, and rende r the judgme nt that the trial court should have rende red. Texas W orkers’ Comp.
Comm’n v. Patient Advoc ates of Tex ., 136 S.W .3d 643, 648 (Tex. 2004); FM Props. Operating Co. v. City of Austin , 22 S.W .3d 868, 872 (Tex. 2000).

3To preva il on a bill of revie w, a petitioner must plead a nd prove: (1) a mer itorious defe nse; (2) that he or she was preve nted from making due to the fra ud, acc ident, or wrong ful act of his or her opponent; and (3) that the fa ilure to a ppear was unmix ed with a ny fault or neg lige nce of his or her own. Ross v. National Ctr. for the Emp’t of the Dis a b l ed , 1 9 7 S

. W

. 3 d 795, 797 (Tex. 2006). F urther, the petitioner m ust normally show that he or she exercised due diligenc e to asser t all adequa te l eg al remedies before filing t he bil l of review. Caldwell v. Ba r n es , 975 S.W .2d 535, 537 (Tex. 1998).

Howeve r, the absenc e of proper service modifies the elements of a bill of revie w. An allegation of non-ser

vice discharg es the first and second elements, an d p roof of lack of service conclusively estab l i s h es the t hird. Ross , 197 S.W .3d at 797; Caldwell v. Barnes , 154 S.W .3d 93,
97-98 (Tex. 2004). Thus, when a petitioner proves that he or she has not been proper ly serve d, the petitioner is entitled to a bill of revie w without a further showing

. This is true even if the petitioner bec am e aware of the proce eding s and failed to participa te, beca use a party who was not proper ly served h as no duty to participa te in the proce eding s. Ross , 197 S.W .3d at 797-98; Caldwell , 154 S.W .3d at 97 n.1; see also W ilson v. Dunn , 800 S

. W .2d 833, 837 (Tex. 1990) (“[M]ere knowledg e of a pending suit does not place a ny duty on a def endant to ac t.”). “ Whil e dil ige nce is require d from proper ly serve d parties or those who have appea red

. . . those not proper ly serve d have

no duty to act, diligently or otherwise.” Ross , 197 S.W .3d at 798. “Proof of non-ser vice, then, will conclusively establish the third and only element that bill of revie w plaintiffs are require d to prove

w h e n th e y a

r e a s s e r ti n g la c k o f s e r

v ic e o f p r o c e s s a s th e ir o n ly d e f e n s e . ” Ca ld

we ll , 1 5 4 S. W. 3 d a

t 9 7

. The cases Gilber

t cites as requiring a bil l-of-r eview plaintiff to have pursued other post-judgme nt

4relief

, including a motion for new trial if possible, see, e.g. , Gold v. Gold , 145 S.W .3d 212, 214 (Tex. 2004), do not involve improper se rvice and ar e ther efor e distinguishable

.

Thus, to aff

irm summary judgme n t in Gilbert’s favor , there must be conclusive evidenc e that L ang don was proper ly serve d. See Frost Nat’l Bank v. Fernandez , 315 S.W .3d 494,
5 0 8 (T ex . 2 010) (def

endant who conclusively neg ates at least one essential element of cause of

ac t i o n i s entitled to summary judgme nt on that claim). For L ang don to preva il on his motio n fo r
summary judgme nt, he must conclusively establish that he wa s not. The bill-of-re view p et i t i o n er bear s the burden of proving that he was not serve d with proce ss. Caldwell , 154 S.W .3d at 97. Be cause a bil l of review constitutes a dire ct attac k on

a judgme nt, no presumption applies in favor of the valid issuance, service , or return of the citation. Seaprints, Inc. v. Cadleway Props., Inc. , 446 S.W .3d 434, 439 (Tex. App.—Houston [1st Di s t .] 2014, no pet.). A “‘bill-of- revie w petitioner may there fore demonstrate that the judgme nt is invalid for lack of proper service of process, whether or not the face of the record discloses the i nvalid i ty and despite rec itals of proper service in the judgme nt under attac k

. ’” Id. (quoting Min v. Avila , 991 S.W .2d 495, 499-500 (Te x . App.—Houston [1st Dist.] 1999, no pet.)).

I n the prese nt case , L ang don submitt ed his own aff idavit in which he aver

red that his

corr ect addre ss is 275 2nd Ave. Fr ont, L ong Br anch, New J erse y , 07740. L ang don’s bare asser tion

a s to h is c o r

r e c t a d d r e s s w it h o u t c o r r o b o r a ti o n is in a d e q

u a te to c a r r y h is b u r d e n o f p r o o f

, s e e S e a p r in ts , 446 S.W .3d at 440, but it is s o m e ev i d en ce o f defe ctive service of proce ss due to an incorre ct or incomplete mailing addre ss, see, e.g. , Shacke lford v. Cartercopters, LLC , No. 02-10-00414- CV,
2011 WL 3835638, at *1, *4 (Tex. App.—For t Worth Aug

. 31, 2011, no pet.) (mem. op.) (summary judgme nt not proper wher e service was attempted at 333 Howar d Street but there w as evide nce of
5two dwelling units a t tha t location—g uest house and main house—and, to distinguish betwee n the
two residenc es, petitioner’s mail was to be delivere d to 333B Howar d Street). L ang don also offe red

a photocopy of his driver’ s license as verific ation of his proper addre ss for service of proce ss. The driver’ s license photocopy that is part of the summary -judg ment evidenc e also shows L ang don’s addre ss as including the “F ront” desig nation. Howeve r, the driver’ s license was no t i s s u ed until April 24, 2014, which is the s ame day L ang don filed his petition for bill of revie w. There is no

corr oborating evidenc e that the “F ront” desig nation was an essential or require d part of L ang don’s addre ss on Dec ember 16, 2013, when the Secre tary of the State forwa rded proce ss to him. Be cause 2
there is some evidenc e—but not conclusive evidenc e—that substitut ed service was attempted using

an incorre ct or incomplete addre ss, we reve rse the trial court’s judgme nt and rema nd this case to the trial court f

or fur ther proc eeding s.

__________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Rose and Goodw in
Reverse d and Remande d Filed: De cembe r 31, 2014

Proof of addre ss is require d to obta in a New J erse y driver’ s license; howe ver, the re is no 2 specific document require d to satisfy the proof require ment. See N.J

. Admin. Code § 13:21-8.2(c) (“Ea ch applica

nt must present for inspec tion an acce ptable proof of addr ess document whic h may be, but is not limit ed to, the following

. . . .”). Among the documents acc eptable as proof of curr ent addr es s ar e (1 ) a u t ility or cre dit car d bill issued within the previous 90 day s or (2) a chec king or saving s acc ount statement issued within the previous 60 day s. Id

. Thus, even assuming a driver’ s license is sufficie nt proof of the pro p er addre ss for service of proce ss, the driver’ s license in the rec ord here is insufficient to conclusively establish L ang don’s proper addre ss for service of proce ss at the time servic e wa s attempted. 6