i 

NO. 03-15-00287-CV

IN THE COURT OF APPEALS 

FOR THE THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS 

GARY MIXON, 

Appellant, 

v.

GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK 

DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP; 

MICHAEL MORINI, AND NORMAN R. ZUKIS, 

Appellees. 

ON APPEAL FROM THE 345TH DISTRICT COURT 

OF TRAVIS COUNTY, TEXAS 

BRIEF OF APPELLANT 

Jack E. Skaggs – 24051345 

Scott W. Weatherford – 24079554 

JACKSON WALKER L.L.P.

100 Congress Avenue, Suite 1100 

Austin, Texas 78701 

Telephone (512) 236-2000 

Facsimile (512) 236-2002 

E-mail: jskaggs@jw.com

E-mail: sweatherford@jw.com

ATTORNEYS FOR APPELLANT 

GARY MIXON 

ACCEPTED

03-15-00287-CV

6384031

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/6/2015 11:48:43 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/6/2015 11:48:43 AM JEFFREY D. KYLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties before the trial court and the 

names and addresses of all trial counsel and appellate counsel:

1. Petitioner in the trial court (Appellant in this Court) and counsel:

Gary Mixon

Represented by:

Jack E. Skaggs (Lead Attorney)

State Bar No. 24051345

jskaggs@jw.com

Scott W. Weatherford

State Bar No. 24079554

sweatherford@jw.com

JACKSON WALKER L.L.P.

100 Congress Ave., Suite 1100

Austin, Texas 78701

512-236-2000 (telephone)

512-236-2002 (facsimile)

2. Respondents in the trial court (Appellees in this Court) and counsel:

Greg Nelson, as principal of Madex Capital, L.L.C.

Nick DeFilippis, as principal of Blue Star Capital Group, L.L.P. 

Michael Morini

Norman R. Zukis 

Represented by:

Mark R. McLean (Lead Attorney)

State Bar No. 24062882

mrm@mlpcfirm.com

MCLEAN LAW P.C.

408 W. 11th St., Suite 500

Austin, Texas 78701

512-222-5641(telephone)

512-857-1282 (facsimile)

Jeff Meyerson

State Bar No. 00788051

JeffM@Meyersonfirm.com

MEYERSON LAW FIRM 

2224 Walsh Tarlton Lane, Suite 1220

Austin, Texas 78746

512-330-9001 (telephone)

512-330-9005 (facsimile) 
iii

TABLE OF CONTENTS 

IDENTITY OF PARTIES AND COUNSEL ...........................................................II

TABLE OF CONTENTS.........................................................................................III

TABLE OF AUTHORITIES .................................................................................. IV

BRIEF OF APPELLANT ..........................................................................................1

STATEMENT OF THE CASE..................................................................................2

RECORD AND APPENDIX REFERENCES...........................................................3

STATEMENT OF ORAL ARGUMENT..................................................................4

ISSUES PRESENTED FOR REVIEW.....................................................................5

STATEMENT OF FACTS ........................................................................................6

SUMMARY OF THE ARGUMENT ........................................................................9

STANDARD OF REVIEW.....................................................................................10

ARGUMENTS & AUTHORITIES .........................................................................11

I. Mixon presented more than a scintilla of corroborated evidence to 

Create a fact Issue. .....................................................................................11

A. A bill of review based on defective service requires only proof 

that the petitioner was never served with process...............................11

B. Mixon has produced more than a scintilla of evidence that he 

was never served with process. ...........................................................13

II. Appellees failed to establish their entitlement to attorneys’ fees. .............15

CONCLUSION........................................................................................................18

PRAYER..................................................................................................................19

CERTIFICATE OF SERVICE ................................................................................20

CERTIFICATE OF COMPLIANCE.......................................................................20

APPENDIX..............................................................................................................21
iv

TABLE OF AUTHORITIES

Page(s)

CASES

Bakali v. Bakali,

830 S.W.2d 251 (Tex. App.¬—Dallas 1992, no writ)...............................................16

Broderick v. Kaye Bassman Int’l Corp.,

333 S.W.3d 895 (Tex. App.—Dallas 2011, no pet.)..................................................18

Caldwell v. Barnes,

975 S.W.2d 535 (Tex. 1998)................................................................................11, 12, 17

Gulf States Util. Co. v. Low,

79 S.W.3d 561 (Tex. 2002) ..............................................................................................16

Hamilton v. Wilson,

249 S.W.3d 425 (Tex. 2008) (per curiam)....................................................................11

King Ranch, Inc. v. Chapman,

118 S.W.3d 742 (Tex. 2003)............................................................................................10

Langdon v. Gilbert,

No. 0-14-00491-CV, 2014 Tex. App. LEXIS 13880 (Tex. App.—Austin 

Dec. 31, 2014, no pet.).......................................................................................................13

Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572 (Tex. 2006)............................................................................................10

Meece v. Moerbe, 

631 S.W.2d 729 (Tex. 1982)......................................................................................16, 17

Mowbray v. Avery,

76 S.W.3d 663 (Tex. App.—Corpus Christi 2003, pet. denied).............................12

Peralta v. Heights Med. Ctr., Inc.,

485 U.S. 80 (1988)..............................................................................................................12

Polansky v. Berenji,

393 S.W.3d 362 (Tex. App.—Austin 2012, no pet.) .................................................18

Reynosa v. Huff,

21 S.W.3d 510 (Tex. App.—San Antonio 2000, no pet.).........................................10
v

Smith v. O’Donnell,

288 S.W.3d 417 (Tex. 2009)............................................................................................10

Sung Man Min v. Avila,

991 S.W.2d 495 (Tex. App.—Houston [1st Dist.] 1999, no pet.)..........................13

Timpte Indus., Inc. v. Gish,

286 S.W.3d 306 (Tex. 2009)............................................................................................10

Travelers Indem. Co. of Conn. v. Mayfield,

923 S.W.2d 590 (Tex. 1996)............................................................................................11

Unifund CCR Partners v. Villa,

299 S.W.3d 92 (Tex. 2009) (per curiam)......................................................................11

Wembley Inv. Co. v. Herrera,

11 S.W.3d 924 (Tex. 1999) ..............................................................................................11

OTHER AUTHORITIES

TEX. R. CIV. P. 166a(i).............................................................................................................10
1

NO. 03-15-00287-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

GARY MIXON,

Appellant,

v.

GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK 

DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP; 

MICHAEL MORINI, AND NORMAN R. ZUKIS,

Appellees.

ON APPEAL FROM THE 345TH DISTRICT COURT 

OF TRAVIS COUNTY, TEXAS

BRIEF OF APPELLANT

Gary Mixon, Appellant herein and Petitioner before the trial court below, 

submits this brief in this appeal of the trial court’s order granting a no-evidence 

motion for summary judgment in favor of Appellees herein and Respondents 

before the trial court below, and would respectfully show as follows:
2

STATEMENT OF THE CASE

Nature of the Case: Appellant Gary Mixon (“Appellant” or “Mixon”) 

filed a Petition for Bill of Review against Greg 

Nelson, as principal of Madex Capital, L.L.C., 

Nick DeFilippis, as principal of Blue Star Capital 

Group, L.L.P., Michael Morini, and Norman R. 

Zukis (“Appellees”) after Appellees obtained a 

default judgment against Appellant that included 

an award of $200,000 in economic damages and 

$400,000 in punitive damages. (CR 36–37). 

Appellant filed the Petition for Bill of Review 

because Appellees failed to properly effect service 

in the underlying lawsuit. (CR 3–44). 

Parties: Appellant is Gary Mixon. 

Appellees are Greg Nelson, as principal of Madex 

Capital, L.L.C., Nick DeFilippis, as principal of 

Blue Star Capital Group, L.L.P., Michael Morini, 

and Norman R. Zukis. 

Course of proceedings: Appellees filed their No-Evidence Motion for 

Summary Judgment on March 10, 2015 (CR 79–

118). 

Trial Court: 345th Judicial District Court, Travis County, 

Texas, Cause No. D-1-GN-14-004368

Trial court disposition: The trial court (The Honorable Gisela D. Triana 

presiding) granted Appellees’ No-Evidence 

Motion for Summary Judgment and dismissed 

Appellant’s Petition for Bill of Review on April 

24, 2015. (CR 161–62) (Tab A).
3

RECORD AND APPENDIX REFERENCES 

CR Clerk’s Record

Citation to documents included in the Appendix will be noted by “(Tab 

[Letter])” next to the Clerk’s Record citation.
4

STATEMENT OF ORAL ARGUMENT 

Because the issues are clear, Appellant believes oral argument will not 

materially aid the Court’s resolution of this appeal. 
5

ISSUES PRESENTED FOR REVIEW

Issue No. 1: Appellant offered more than a scintilla of evidence to create a 

fact issue regarding whether he received service of process in the Underlying 

Lawsuit. 

Issue No. 2: Appellees failed to establish a statutory or contractual basis 

demonstrating their entitlement to an award of attorneys’ fees.
6

STATEMENT OF FACTS

Appellees filed a lawsuit against Mixon and five other defendants alleging 

fraud, negligent misrepresentation, violation of the Texas State Securities Act, 

gross negligence, breach of contract, and breach of fiduciary duty (the “Underlying 

Lawsuit”). (CR 12–33). In their Original Petition, Appellees represented that 

Mixon resided at 35 Persimmon in Boerne, Texas. (CR 15). However, Mixon 

moved from that address prior to the filing of the Underlying Lawsuit. (CR 39). 

After several failed attempts at service, Mixon first became aware of the 

Underlying Lawsuit in September 2013 when Appellees served a subpoena on 

Mixon’s ex-wife, Linda Komperda. (CR 128). Appellees issued the subpoena to 

confirm the correct address for Mixon. (CR 109). At a hearing on November 1, 

2013, Ms. Komperda testified that she lived with Mixon at 116 Cave Circle in

Boerne, Texas, and the trial court issued an order for substitute service at that 

address. (CR 105). Specifically, the trial court ordered substitute service by 

“posting a true and correct copy of the citation and the attached petition on the 

front door [at] 116 Cave Circle, Boerne, Texas 78006.” Id.

According to his affidavit, process server Margarito Vasquez accomplished 

service the next day by posting a copy of the citation and original petition “to the 

front door of the property of Gary Mixon . . . at the address of 116 Cave Circle.” 

(CR 114). However, Mixon never received the citation or original petition 
7

purportedly attached to his front door, so he called the clerk of the Travis County 

District Court to inquire whether their records showed that he had been served. 

(CR 133, 143). On that call, the clerk told Mixon that he had not been served. 

(CR 143–144).

Later that month, Mixon moved from the house located at 116 Cave Circle 

to a different location in Boerne, Texas. (CR 144). At no point in time during the 

month of November did Mixon receive service of citation in the Underlying 

Lawsuit. (CR 144.).

The next month, Appellees filed a Motion for Default Judgment against 

Mixon. (CR 7). Appellees did not even attempt to serve Mixon with this motion. 

(CR 7–8). Moreover, the Certificate of Last Known Address filed by Appellees 

identified the incorrect address for Mixon. (CR 8). Accordingly, Mixon did not 

receive notice of the Motion for Default Judgment or notice of the hearing. (CR 

144). 

The Court entered a default judgment against Mixon on January 17, 2014. 

(CR 36–37). The Court awarded Appellees $400,000 in punitive damages and 

$200,000 in economic damages. Id. Mixon did not immediately receive notice of 

the default judgment because all notices were sent to Mixon’s previous addresses. 

(CR 140–141). Instead, Appellees deliberately waited until 30 days after the entry 

of the default judgment to attempt to serve Mixon with notice of the default 
8

judgment. (CR 121). However, Appellees once again served Mixon at the wrong 

address. (CR 121). 

Mixon first learned of the purported service of citation and default judgment 

in June 2014, over 7 months after the alleged date of service. (CR 144). 
9

SUMMARY OF THE ARGUMENT

The trial court erred in granting Appellees’ No-Evidence Motion for 

Summary Judgment and awarding Appellees their attorneys’ fees incurred in 

defending the Petition for Bill of Review. 

First, Appellees’ No-Evidence Motion for Summary Judgment fails because 

Mixon presented more than a scintilla of corroborated evidence to support the fact 

that Appellees failed to effect proper service in the Underlying Lawsuit. 

Second, Appellees failed to identify any statutory or contractual authority to 

establish their entitlement to attorneys’ fees incurred in defending a Petition for 

Bill of Review based on lack of proper service. 
10

STANDARD OF REVIEW 

A party may move for summary judgment on the ground that no evidence 

exists of one or more essential elements of a claim on which the adverse party 

bears the burden of proof at trial. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. 

Gish, 286 S.W.3d 306, 310 (Tex. 2009). Once the motion is filed, the burden 

shifts to the nonmovant to produce evidence raising a genuine issue of material fact 

on the elements specified in the motion. TEX. R. CIV. P. 166a(i); Mack Trucks, Inc. 

v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the respondent brings forth more 

than a scintilla of probative evidence to raise a genuine issue of material fact, 

summary judgment is improper. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 

751 (Tex. 2003). More than a scintilla of evidence exists when the evidence “rises 

to a level that would enable reasonable and fair-minded people to differ in their 

conclusions.” Id.; Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.—San Antonio 

2000, no pet.). 

The Court must “review the evidence in the light most favorable to the 

respondent against whom the summary judgment was rendered . . . . If the 

respondent brings forth more than a scintilla of probative evidence to raise a 

genuine issue of material fact, a no-evidence summary judgment cannot properly 

be granted.” Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (citations 

omitted). “That is, a no-evidence summary judgment should be reversed if the 
11

evidence is sufficient for reasonable and fair-minded jurors to differ in their 

conclusions.” See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per 

curiam).

With respect to an award of attorneys’ fees, this Court must review for abuse 

of discretion. See Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593 

(Tex. 1996) (orig. proceeding). A trial court abuses its discretion if its decision is 

arbitrary, unreasonable, and without reference to guiding principles, or if it rules 

without supporting evidence. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 

(Tex. 2009) (per curiam). A court will review the record to determine whether the 

trial court followed guiding rules and principles. Id.

ARGUMENTS & AUTHORITIES

I. MIXON PRESENTED MORE THAN A SCINTILLA OF CORROBORATED 

EVIDENCE TO CREATE A FACT ISSUE. 

A. A bill of review based on defective service requires only proof that 

the petitioner was never served with process. 

A bill of review is an independent equitable action brought by a party to a 

previous suit who seeks to set aside a judgment that is no longer subject to a 

motion for new trial or appealable. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 

926–27 (Tex. 1999); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). 

Traditionally, to state a claim for a bill of review, a petitioner must allege: (1) a 

meritorious defense to the cause of action supporting the judgment; (2) that the 

petitioner was prevented from making by the fraud, accident, or wrongful act of the 
12

opposing party; and (3) that is unmixed with any fault or negligence by the 

petitioner. Mowbray v. Avery, 76 S.W.3d 663, 682 (Tex. App.—Corpus Christi 

2003, pet. denied). 

However, when a petitioner seeks a bill of review based solely on a claim of 

lack of proper service, the petitioner need not show the first two of these 

requirements. This exception arises as a matter of constitutional law, because 

notice of the lawsuit and the judgment is an essential ingredient of due process. A 

judgment is vulnerable to attack if a party obtained it in the absence of 

constitutionally mandated notice, even if the defendant lacks a meritorious defense. 

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988); Caldwell, 975 S.W.2d 

at 537. 

 When a petitioner seeks a bill of review based on a claim of lack of proper 

service, he or she may conclusively establish the absence of fault or negligence by 

proving that he or she was never served with process. Caldwell, 975 S.W.2d at 

537. An individual who is not served cannot be at fault or negligent in allowing a 

court to render a default judgment. See id. Even if the individual becomes aware 

of the proceedings before the court renders judgment, he or she has no duty to 

participate in them without proper service of process and is, therefore, not at fault 

for failing to answer. Id. 
13

B. Mixon has produced more than a scintilla of evidence that he was 

never served with process. 

At the summary judgment stage, a petitioner’s own testimony is “some 

evidence of defective service of process.” See Sung Man Min v. Avila, 991 S.W.2d 

495, 502 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that evidence 

derived solely from the petitioner was “not only sufficient to defeat [Respondent’s] 

prima facie case, as established by the [citation] recitals, and thus place the issue of 

the service before the jury, but also sufficient to support the jury’s finding of no 

service.”); see also Langdon v. Gilbert, No. 0-14-00491-CV, 2014 Tex. App. 

LEXIS 13880, at *7 (Tex. App.—Austin Dec. 31, 2014, no pet.) (holding that the 

petitioner’s own affidavit was “some evidence of defective service of process”). In 

Langdon, the petitioner filed a bill of review to set aside a default judgment on the 

basis of defective service of process. 2014 Tex. App. LEXIS 13880, at *3. In 

cross motions for summary judgment, the petitioner submitted his own affidavit in 

which he averred that he did not receive service of process. Id. at *7. The trial 

court granted the respondent’s motion for summary judgment, but the Austin Court 

of Appeals reversed because the petitioner’s “bare assertion” that he was not 

served “is inadequate to carry his burden of proof, but it is some evidence of 

defective service of process.” Id. (internal citations omitted). 

Here, Mixon’s affidavit and deposition testimony, despite being “bare 

assertions” that he was never served, constitute “some evidence” that defeats 
14

summary judgment. Specifically, Mixon produced evidence that he never received 

the citation purportedly attached to his front door. For example, Mixon testified in 

his deposition that he “was never served.” (CR 131). Mixon would not have 

called the Travis County Clerk on November 6, 2013 asking if he had been served 

if he had actually been served on November 2 as alleged. (CR 131–35, 143). 

During his deposition, Mixon maintained that the best evidence of defective 

service is the fact that he never received the citation:

Q. Are you stating affirmatively that Mr. Vasquez did 

not post the Citation of Petition on your door 

November 2nd?

A. I am saying that I have not received securely the 

citation. 

Q. But you are not testifying he did not post the copy 

of the citation and petition on your door November 

2, 2013?

A. I did not receive the citation.

(CR 131–35, 144). Accordingly, Mixon’s own testimony constitutes more than a 

scintilla of evidence that, although insufficient to carry his burden at trial, is 

certainly enough to place the issue before a jury. 

Additionally, Mixon’s testimony is further supported by additional 

circumstantial evidence that Mixon never received any items allegedly left by the 

process server, Mr. Vasquez. For example, Mr. Vasquez’s affidavit of non-service 

indicates that he left a “call back card” on August 28, 2013. (CR 139). However, 
15

Mixon testified that he never received the call back card. (CR 129–30). This 

constitutes more evidence to contradict Mr. Vasquez’s affidavit of service given 

the fact that Mixon never received the citation. (CR 132) (“I do not question [Mr. 

Vasquez’s] statement other than the fact that I did not receive the citation and the 

petition.”). 

Ms. Komperda’s declaration also corroborates Mixon’s testimony that he 

never received the citation and Petition in the Underlying Lawsuit. Ms. Komperda, 

who lived with Mixon at the time of the alleged service, stated that she never 

received or saw a copy of the Petition and citation purportedly attached to the front 

door. (CR 145). 

Taken together, Mixon’s testimony, Ms. Komperda’s declaration, and the 

contradiction of the process server’s affidavits constitute more than a scintilla of 

evidence that service was defective in the Underlying Lawsuit. Considering this 

evidence in the light most favorable to Mixon, it is certainly possible that the 

process server failed to execute service consistent with the order of substitute 

service. Accordingly, the trial court erred by granting Appellees’ no evidence 

motion for summary judgment. 

II. APPELLEES FAILED TO ESTABLISH THEIR ENTITLEMENT TO ATTORNEYS’

FEES.

In their No-Evidence Motion for Summary Judgment, Appellees summarily 

declared that they “are also entitled to an award of attorney’s fees and costs.” (CR 
16

86). At the hearing on the motion, the trial court allowed Mixon to submit a Bench 

Brief in opposition to Appellees demand for attorneys’ fees. (CR 157–160). After 

consideration of the brief, the trial court granted Appellees claim for attorneys’ 

fees. (CR 161–62) (Tab A). 

The law is clear that a prevailing party may recover attorneys’ fees from the 

opposing party only if the recovery of fees is provided for by statute or contract. 

Gulf States Util. Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002). There is no statute 

that provides for the recovery of attorneys’ fees for the prevailing party in a bill of 

review proceeding. As such, courts have held that a party who successfully 

defends a bill of review is entitled to recover attorneys’ fees only if such fees are 

authorized for the underlying case. See Bakali v. Bakali, 830 S.W.2d 251, 257 

(Tex. App.—Dallas 1992, no writ). 

In Meece v. Moerbe, the Texas Supreme Court analyzed the policy behind 

this rule. 631 S.W.2d 729 (Tex. 1982). In Meece, the trial court awarded the 

respondent attorneys’ fees for successfully defending the petitioner’s bill of 

review. Id. at 730. The court of appeals reversed, holding that the respondent was 

not entitled to fees because defense of a bill of review was not the same as 

establishing an affirmative cause of action under a statute that allows recovery of 

attorneys’ fees. Id. The Texas Supreme Court disagreed, noting the following: 

[T]he purpose of the [statute allowing recovery of 

attorneys’ fees] is to authorize attorneys’ fees for the 
17

successful prosecution of a . . . claim to final judgment. 

While the bill of review is an equitable action, separate 

from the original suit, [the respondent] had the burden of 

proving his original cause of action. 

Id. (emphasis added). Accordingly, the Texas Supreme Court held that because the 

respondent successfully prevented the petitioner from establishing a meritorious 

defense (a necessary element of his bill of review claim), the respondent had in 

essence proved his underlying cause of action and was entitled to an award of 

attorneys’ fees. 

The Texas Supreme Court’s opinion in Meece leads to the logical conclusion 

that when a bill of review petitioner does not have to prove a meritorious defense, 

and the respondent therefore does not have the burden to prove the original cause 

of action, the defending party is not entitled to attorneys’ fees. Here, it is 

undisputed that Mixon did not have to prove a meritorious defense as an element 

of his bill of review. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998) 

(noting that a bill of review based on failure of service dispenses with the 

requirement to prove a meritorious defense). As such, Appellees never carried the 

burden to prove the underlying cause of action that would entitle them to attorneys’ 

fees. 

Instead, Appellees rely on a single case from the Dallas Court of Appeals to 

support their claim for attorneys’ fees. Yet that case, just like Meece, involved a 

bill of review where the respondent negated the petitioner’s meritorious defense. 
18

See Broderick v. Kaye Bassman Int’l Corp., 333 S.W.3d 895, 898 (Tex. App.—

Dallas 2011, no pet.). Despite having the burden to do so, Appellees have not 

identified any legal authorities that allow for the recovery of attorneys’ fees by the 

defending party in a bill of review where the petitioner does not have to prove—

and the responding does not have to negate—a meritorious defense to the 

underlying cause of action. Accordingly the trial court abused its discretion in 

granting Appellees’ request for attorneys’ fees. See Polansky v. Berenji, 393 

S.W.3d 362, 368 (Tex. App.—Austin 2012, no pet.) (holding that the trial court 

abused its discretion in awarding attorneys’ fees “without a statutory or contractual 

basis to do so.”). 

CONCLUSION

Mixon alleges that he was denied service of process—a fundamental right 

guaranteed by the Constitution. The trial court, by refusing to acknowledge the 

fact issues raised by Mixon, effectively deprived Mixon of that right. Moreover, 

the trial court erred by awarding attorneys’ fees to Appellees not for proving their 

underlying cause of action, but instead for simply filing a no-evidence motion for 

summary judgment. Accordingly, the trial court’s orders should be reversed and 

this case should be remanded for further proceedings. 
19

PRAYER

Appellant Gary Mixon respectfully requests that this Court reverse the trial 

court’s order granting Appellee’ No-Evidence Motion for Summary Judgment and 

request for attorneys’ fees and remand this cause to the trial court. Appellant also 

respectfully requests such further relief, general or special, to which he may be 

justly entitled.

DATED and FILED this 6th day of August, 2015.

Respectfully submitted,

JACKSON WALKER L.L.P.

By: /s/ Jack E. Skaggs

Jack E. Skaggs - 24051345

Scott W. Weatherford – 24079554

JACKSON WALKER L.L.P.

100 Congress Avenue, Suite 1100

Austin, Texas 78701

Telephone (512) 236-2000

Facsimile (512) 236-2002

E-mail: jskaggs@jw.com

E-mail: sweatherford@jw.com

ATTORNEYS FOR APPELLANT GARY 

MIXON 
20

CERTIFICATE OF SERVICE

I hereby certify that, on the 6th day of August 2015, a true and correct copy 

of the foregoing was served on all counsel of record listed below in accordance 

with Rule 9.5(c) of the Texas Rules of Appellate Procedure via electronic filing 

and electronic mail:

Mark R. McLean (Lead Attorney)

State Bar No. 24062882

mrm@mlpcfirm.com

MCLEAN LAW P.C.

408 W. 11th St., Suite 500

Austin, Texas 78701

512-222-5641(telephone)

512-857-1282 (facsimile)

Jeff Meyerson

State Bar No. 00788051

JeffM@Meyersonfirm.com

MEYERSON LAW FIRM 

2224 Walsh Tarlton Lane, Suite 1220

Austin, Texas 78746

512-330-9001 (telephone)

512-330-9005 (facsimile) 

/s/ Jack E. Skaggs

Jack E. Skaggs

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i) 

because, exclusive of the matters excepted from the word count limitations of the 

Rule, this brief contains 2,826 words.

/s/ Jack E. Skaggs

Jack E. Skaggs
21

NO. 03-15-00287-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

GARY MIXON,

Appellant,

v.

GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK 

DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP; 

MICHAEL MORINI, AND NORMAN R. ZUKIS,

Appellees.

ON APPEAL FROM THE 345TH DISTRICT COURT 

OF TRAVIS COUNTY, TEXAS

APPENDIX

Tab A Order Granting No-Evidence Motion for Summary Judgment 
Tab A
CAUSE No. D-1-GN-14-004368 

GARY MIXON, § IN THE DISTRICT COURT OF 

§ 

Petitioner/Judgment Debtor, § 

§ 

V. § 

§ 

GREG NELSON, as principal ofMADEX § TRAVIS COUNTY, TEXAS 

CAPITAL, LLC; NICK DEFILIPPIS, as § 

principal of BLUE STAR CAPITAL § 

GROUP, LLC; MICHAEL MORINI; and § 

NORMAN R. ZUKIS, § 

§ 

Respondents/Judgment Creditors. § 345th JUDICIAL DISTRICT 

ORDER GRANTING NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT 

On April 9, 2015, the Court considered and took under advisement 

Respondents/Judgment Creditors' No-Evidence Motion for Summary Judgment in the abovestyled case. After considering the motion, the response, the reply, the admissible summary 

judgment evidence, and the applicable law, the Court GRANTS the motion in its entirety, 

including the claim for attorney's fees in the amount of $6,120.00 and costs of $300.49. 

Petitioner/Judgment Debtor Gary Mixon's Bill of Review proceeding under Cause No. 

D-1-GN-14-004368 is DISMISSED WITH PREJUDICE to the refiling of the same. 

JUDGME~T is hereby entered that Petitioner/Judgment Debtor Gary Mixon shall take nothing 

by way of his bill of review and that Respondents/Judgment Creditors are awarded attorney's 

fees and costs outlined above. 

This is a final and appealable JUDG\t1ENT. 

[Continued.] 

Order Granting No Evidence lv!otion for Summary Judgment Page I of2 
THE HONORABLE GISELA D. TRIANA 

JUDGE, 200th JUDICIAL DISTRICT COURT 

OF TRAVIS COUNTY, TEXAS 

Approved to Form: 

~ , THE MEYERSON LAW FIRM, P.C. 

Mark McLean 

Attorney for Respondents/Judgment Creditors 

1, . tJ ~- ~~ w( PA-M<«<•ev- (}, f;¥cicib WALKERIIP. ~ Scott Weatherford 

Attorney for Petitioner/Judgment De tor 

Order Granting No Evidence Motion for Summary Judgment Page 2 of2