## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00109

- CV

RONALD LATHAM , Appellant

V.
CHRIS THOMPSON , Appellee

On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 20C0991

- 005

Before Morri ss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
Ronald Latham petitioned for a bill of review seeking to have a default judgment set
aside in the underlying contract dispute because he was not properly s erved with citation. Chris Thompson, the judg ment creditor in the underlying action, moved for summary judgment , seeking to have the petition dismissed

. T he Fifth Judicial District Court of Bowie County,
Texas , granted Thomps on’s motion, thus denying La t ham’s petition

. On appeal, Latham asserts that the trial court improperly granted Thompson’s motion for summary judgment

. Because we find that Latham failed to present independent facts to raise a question as to whether he was personally served , we aff i rm the trial court ’s judgment

. I. Procedural Background
On M ay 3, 2019, Thompson filed suit against Brandon and Allison Blair in cause number
19C0724

- 00 5 in the Fifth Judicial District Court of Bowie County, Texas (the underlying suit). 1
T he Blai rs wer e served on May 20, 2019 , and they filed their answers on June 7, 2019. After filing an amended petition , Thompson filed , on September 5, 2019, a second amended petition, adding Latham as a defendant in the suit and seeking a tempor ary injunc tion.
On Ja n uary 13, 2020 , Thompson filed a motion for default judgment against Latham. The default judgment was entered on February 28 , 2020 . The judgment awarded Thompson damages “ i n the amount of $38,500 plus prejudgment intere st in the am ount of $800.00 ,

1 Thompson claim ed that h e leased land owned by Latham in Bowie County, Texas , f or duck hunting. According to Thompson, s o metime after he presented Latham with a written lease and a lease payment, Latham sold the property to the Blairs

. Latham claim ed that he never signed the le ase and that he did not accept the lease payment. Due to a subsequent conflict between Thompson an d t he Blai rs, Thompson filed the underlying lawsuit.3

attorn e y ’ s fees in the amount of $10,500.00, court costs and post

- judgment interest at the rate of
5% per annum. ”
After the default judgment was entered , Latham filed an original petition for bill of
review and an amended petition a sking the trial court to vac a te the default judgment in Thompson’s favor. In support of his request , Latham claimed that he was not served with process in the underlying law suit. In response, Thompson filed a motion for summary judgment
and a supplemental mot ion , arguing that Latha m ’s am ended petition should be denied because the summary judgment evidence proved that Latham had been personally served with citation

. The trial court ruled that Thompson was entitled to judgment , and it summar ily dismissed
Latham ’s amended petition for bill of review. Latham appeals.
II. Standard of Review An appellate court reviews a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). Summary judgment in favor of the

mova nt is proper only when t here ar e no disputed issues of material fact , and the movant is entitled to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c) ; Shell Oil. Co. v. Khan , 138 S.W.3d 288, 291 (Tex. 2004). “In reviewing the grant o r denial of a bill of review, every presum ption i s 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 v. Bledsoe , 416 S.W.3d 98, 101 (Tex. App.

— Tex arkana 2013, no pet. ) (citing Nguyen v. Inte rtex, I nc. , 93 S.W.3d 288, 293 (Tex. App.

— Houston [14 th Dist.] 2002, no pet.), overruled on other grounds by Glassman v. Goodfriend , 3474

S.W.3d 772 (Tex. App.

— Houston [14 th ] Dist.] 2011, pe t. denied) (en banc) )

. A trial c ourt

a buse s its discretion only “i f it ha s 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 ))

. When a court of ap peals determines whether the tr ial court abused its discretion, it views the evidence in the light most favorable to the trial court’s decision and indulges every presumption in its favor

. Saint , 416 S.W.3d at 1 11

– 12 (citing Garza v. Att ’ y Gen

. , 166 S.W.3 d 799, 811 (Tex. App.

— Co rpus Ch risti 2005, no pet.)

. If there is “ some probative and substantive
evidence support [ ing ] the [ trial court ] ’s finding, the trial court did not abuse it s discretion. ” Id

. at 112

. “Because i t is fu ndamentally important that f inality be accord ed to j u dgment s, 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.’” P onsart v. Citicorp Ven do r Fin. , Inc. , 89 S.W.3d 285, 288 ( Tex. App.

— Texarkana 2002 , no pe t.) ( citing Mont gomery v. Kennedy , 669 S.W.2d 309, 312 (Tex. 1984) (quoting Alexander v. Hagedorn , 226 S.W.2d 996, 998 ( Tex. 1950)) )

. III. Discussion
M uch of the procedural background f o und in L atham’s amended petition fo r bill of
review was ver y simila r to the background contained in his original petition

. That said , in his amended petition, Latham maintains , for the first time, that he was never served with process in the underlying s u it

. C on sequently, Latham contends that the trial court sho u ld set aside the5

default judgment in favor of Thompson

. 2 P aragraph 6D of his amended petition reads, “On September 5, 2019[,] a Citation was issued and allegedly served upon Petitioner herein, R o nald
Lat ham, on September 11, 2019. However, Petitioner Ro n ald Lat ham was not personally served on September 11, 2019 , or at any other time. ” ( E mphasis added)

. He continues, “Petitioner
d enies that he was ever served and would certainly have recalled s u ch a lat e night service
because he goes to bed at 9:30 pm e v ery nig ht . . . .”
Latha m also claimed that he had confused the underlying suit with another case involving the same p arties that had been filed in the County Court at Law of Bowie County

. 3 He state d

t h a t he “ believe[ed] that the Default Judgmen t had be en entered in the same suit in which he had
testified [ in the County Court at Law of Bowi e County , and he] presumed that he had been
served with a Citation and the Amended Petition from the deputy sheriff that infor m ed him to be
in court .” Latham explaine d that “ he had no copies of those papers [from the County Court at
Law of Bowie County ] in his possession to refer to or to give to his attorney in response to the notice of a Default Judgment. ” Lath am said tha t he “ w as confused because he had only been

s erved once b y a deputy sheriff and th at is when he went to court and testified.” In other words,

2 In his original petition for bill o f review, paragraph 6 states , in relevant part, as follows:

D. There af

ter, on September 5, 2019, another Amended Petitio n was filed apparently adding Petitioner here in, Ro nald Latham, as a party Defendant. On September 5, 2019[,] a Citation was issued a nd served upon Petitioner here in, Ronald Latham, on September 11, 2019

. (Emphasis added). In addition, Latham mainta in ed that , when the judge of the county court at law a llowed him to leave the court room after he t est ified, he was under the impression that he did not need to participate any further i n the litigation.

3 Thompson st ated in his brief that he was also a def en dant in Brandon Blair, et al v. Chris Thompson , c au se number 19C1199

- CCL in the County Co urt at Law of Bowie County , which was an appeal from a forcible entry and detainer p roceeding filed originally in a justice o f the peace court

.6

according to Latham , he believed that he had been served in the suit in which he had testified and
that he had ne ve r been serve d with the underlying suit ( c au se number 19C 0 724

- 0 05)

. He had no evidence to support th o se contentions other than his affidavit

. In response, Tho mpson filed a supplemental motion for summary judgment, initia lly point ing out that a bill

- of

- revi e w plaintiff , like Latham , had the burden of provi ng that he was
not served with process. S ee S eaprints, Inc. v. Cadleway Prop s. , Inc. , 446 S.W.3d 434, 439 (Tex. App.

— Houston [1 st Dist

. ] 2014, no pet. ) (citing Caldwell v. Barnes ( Ca l dwell II ) , 154
S.W. 3 d 93, 96

– 97 (Tex. 2004)). Thompson argued t hat Lath am did not demonstrate ind ependent facts and circumstances to support his claim of lack of service. Thompson also maintained that he presented summary judgment ev idence to show , a s a matter of law , that L atham had been properly served. Specifical ly, Thomps on attached to his supplem ental motion an officer’s return
of service showing that Latham had been personally served with process at 9:58 p.m. on September 11, 2 019.

“ A bill of review is an independen t action to set aside a judgment that is no longer
app ealable or subject to chal lenge by a motion for new trial. Wembley Inv. Co. v. Herrera , 11 S.W.3d 924, 926

– 27 (Tex. 199 9 ) (per curiam)

. The elements necessary to establ ish entitlement to an equitable bill of review are well established under Te xas Law :
T o succeed by bill of rev iew, the petitioner must ordinarily allege and prove three elements: a meritorious defense to the cause of action supporting the ea rlier judgme nt ; which the petitioner could n ot 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.”7

Min v. Avila , 991 S.W. 2d 495 , 500 (Tex. App.

— Houston [1 st Di st.] 1999, no pet

. ) (citing
Cal d wel l v. Barnes ( Caldwell I ) , 975 S.W.2d 535, 537 (Tex. 199 8)). But, “ once a bill

- of

review plaintiff proves the absence of service or the lack of notice . .

. , the plaintiff is then
relieved o f proving the traditio nal bill

- of

- review elements and the cou r t sh ould grant plaintiff’s
bill of review .” Mab on Ltd. v. Afri

- Carib Enters., Inc. , 369 S.W.3d 809 , 810 (Tex. 2012) (per curiam) ; see also Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 84 (1988) ; Cald well II , 154 S.W.3d 93, 96 (Tex. 2004) ( per curiam) (“Bill of review plaintiff s claiming non

- service

. . . are relieved of two elements ordinarily required to be proved in a bill of review proceeding .”).
“The third bill

- of

- review eleme nt is lack of fault or neg l igence

. . . by the bill

- of

- review plaintiff

. ” Saint , 416 S.W.3d at 10 2 (citing Caldwel l II, 154 S .W.3d at 102). Consequently, a
bill

- of

- review plaintiff alleging that he was not properly served still must prove the third bill

of

- review factor , th at is, “ t he judgment was rendered unmixed with any fault or negligence of [ his ] own. ” Caldwell II , 154 S.W.3d at 97. Lack of negligence is conclusively established if
the bill

- of

- review plaintiff proves that he was never served with process. Id

. at 97

– 98

.

“ There a re no presumptions in favor of valid issuance, service[,] and retu rn of citation in
the f ace of a d irect attack by bill of review on a default judgment.” Garza , 166 S.W.3d at 811 (citing Palomin v. Zarsky Lumber , 26 SW.3d 6 90, 693 (Tex. App.

— Corpus Chri st i 2000, pet.
denied ) ). In Garza , the appellate court explained, Although the law makes no p resump tions favoring validity of service in an attack on a default judgment, an officer’s return is prima facie evidence of the fac ts recited therein. Prima te C on str., [ Inc. v. Silver , 884 S.W.2d 151, ] 152

– 53 [ (Tex. 1994) (per c urium) ]

. “ The return o f se rv ic e is n ot a trivial, formulaic document. It has long been considered prima facia evidence of the facts recited there in

. ” I d

. (c iting Pleasant Homes v. Allied B ank of Dallas , 776 S.W.2d 153, 154 (Tex.8

1989 ) (per curiam)); Gatl in v. Dibrell , 74 Tex. 36, 11 S.W. 908 , 909 (1889) ( “ The return of the officer imports absolute verity, and was sufficient to authorize the rendition of judgm ent upon default. ” ); see also We st Columbia Nat’l Bank v. Griffith , 902 S.W.2d 201, 206 (Tex. App.

— Houston [1 st Dist.] 1 995, writ denied ). Recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated pr oof o f the moving party. Prim ate C on str. , 884 S.W.2d at 152; West Columbia , 902 S.W.2d at 206.
Id.
He re, Thompson attached to hi s supplemental motion for summary judgment a citation of personal service directed to Latham at 3602 Buchanan Road , Texarkana, Texa s , 75501. The
citation , which wa s filed on September 16, 20 19 , stated that Latham had been sued, and a copy of Thompson ’s sec ond amended and restated petition and application for temporary injunction
was attached to the citation

. The officer’s retur n of s ervice show ed that L atham was pe rsonally
served at 3602 Buchana n Road on September 11, 2019, at 9 :58 p.m. “by deliverin g to t he wit hin named Ronald Latham, in per s on a true copy of such petition to such copy of citation and endorsed on such copy of c itatio n the date of delivery.” The re turn was certified and signed by a Bowie County s heriff’s deputy o n behalf of Bowie Cou nty Sher iff Ja mes Prince.
Latham averred i n his affidavit ,

• I have reviewed the Plaintiff’s Motion for Default Judgment fi l ed in Cause # 19C 0 724

- 005 and the exhib it s attached (filed Jan. 13, 2020). The Sheriff’s Return filed Se ptember 16, 2019 states th at I was personally served at 9:58 p.m. on September 11, 2019. I testified t he day before on September 10, 2019 according t o the Transcript of proceedings before J ud ge Craig Henry in the County Court at Law. I state under oath t hat I did not r eceive the cit ation and “Plaintiff’s Second Amended and Restated Petition and Applicati on for Temporary Injunction” on the night before my testimony in the County Court at Law t he next day. [ 4 ] I have never

4 Latham stated that he testified in the county court at law on September 1 0 , 2019 , and then claim ed that he did not receive the citation “on the night before [his ] testimony in the [c]ou n ty [c]ourt at [law] the next day.” The return of9 seen those documents until [they w ere] produced in this Bill of Review proceeding.

• I have never been a party to litigation in a civil suit, except for my recent divorce. I am unfam i liar with the different court[s] (Distr ic t Courts (5 th , 102nd, and 202 nd ) and the Bowie County Court at L aw. . . . Howeve r, had I r ece ived a citation and the “Plaintiff’s Second Amended and Restated Petitio n and Application for Temporary Injunction,” I cl e arly would have taken it to an attorney a nd would have filed an answer.

• I have seen the Plaintiff’s Mot ion for Def ault Judgment a nd the affidavits attached. (1) I dispute the truth of the Sheriff’s Return of Service, (Exhibit A), (2) the Certificate of Last Known Address, (Exhibit B) which s ta tes that my last know[n] address is 3 60 2 Buchanan Road. The tra nscript from the County Co urt at Law, Attached to the Motion f or Summary Judgment, clearly shows that on the day before the Certificate of Last Known A ddress was filed, specifically Septembe r 10, 2019, I testified that my address where I receive my mail is at 3 61 8 Buchanan Road. T he following day after telling Scott Self [ 5 ] my correct address, [t]he Certificate of Last Know[n] Address was filed on Sept e mber 11, 2019.
Yet , “a plaintiff’s b ar e denial that he was served is inadequate to carry his burden in the face of a
valid ret ur n o f service.” Seaprints, Inc. , 446 S.W.3d at 440 (citing Min , 991 S.W.2d at 501 )

. As is the case here, “[i]n order to ove r come a prima facie showing of service o f process established by the recitals in the officer’s return, the plaintiff must come forwa rd with ‘evidence of supporting facts and circumstances’ to corroborate his denial.” Id

. (quoting Min , 991 S.W.2d at 501). “The prohibition against considering th e challenger’s evidence applies only if the evidence
does not rise above mere denial of serv ice , or mere denial of s ervice buttressed only by the serving officer’s inability to remember serving that particular party .” Id. (quoting Min , 991

service shows that Latham was served on September 11, 2 019, which w ould have been the day aft er h e testified in the county court at law.

5 Self was Thompson’s attorney.10

S.W.2d at 495)

. “Wh atever the source of the evidence, the definitive test ‘is wh ether it
demonstrates inde pen dent facts and circumsta nces that support, and thus corroborate, the challenger’s claim.’” Id

. (quoting Min , 991 S.W.2d a t 503 ). In its order granting Thom ps on’s su pplemental motion for summary judgment, the trial

court corre ctly noted that “[Latham]’ s A ffidavit did not state t hat he was at 3618 Buchanan Road
or at a location other than 3602 Buchanan Road, the location wher e service occur red, at the time
of se rvice o r even that he was not at 3602 Buchanan Road when service occ urred. ” At best,
Latham a sse rted that the “ a ddress where [he] receive[ d his ] mail [wa ] s at 3 618 Buchanan Road ”
and that his last known address had be en changed to 3 618 Buchanan Road t he day after he testified in the county court at law and the day the s heriff’s return showed he wa s served with
T hompson’s lawsu i t. The fact that Latham did not receive his mail , or even resid e , at 3602
Buchanan Ro ad di d not disprove Thompson’s contenti on that Latham had been personally served
at 3602 Buchanan Road.
Lat ham also explained in his aff idavit that , wi th the exception of his former wife , “no other person [had] resided at [ his ] residence from before 2017 to

. . . October 21, 2020. ” (Emphasis added)

. In addition, many of t he statements in his affidav it were centered on his alleg ed confus i on and his lack of experience with the court system. While all those statements may have been true, they did not amount to evidence to support hi s claim that he was never
served with citation at 3602 Buchanan Road.
Latham ’s sole claim in his r esponse to Thompson’s motion for summary judgment was that Thompson failed to s erve him with citation in the under lying lawsuit and that , therefore,11

summary ju dg ment in Thompson ’s favor was error. 6 W e conclude that Tho mpson produced prima facie ev idence , i n the f orm of a valid return of service , that Latham was, in fact, personally
served with citati on on Septe mber 1 1 , 20 19

. In turn, Latham was requ ir ed to produce summary judgment evidence of independent facts to raise a question as to whether he was perso nally

s erved

. Latham ’s summary judgment evidence consisted of (1) his own sworn affidavit tha t
contained sel f

- serving statements and numerous excu se s ; 7 (2) a letter addressed to Latham at the
3602 Buchanan Road ad dress , along with a copy of Thompson’ s motion for default judgment , and an envelope stating that the letter was returned to sender unc laimed ; and (3) a trans cript of his testimony in the county cou rt at law case

. Yet, n one of those items demonst rate d by a preponderance of the evidence that La tha m was no t personally served at 3602 Buchanan Road on September 1 1 , 20 19 , at 9:58 p.m

. See Ca ldwell II , 154 S.W.3d a t 98. As a result , we find that
the tri al court did not err in granting summary judgment in favor of Thompson.

6 In his response to Th ompson’s s u pplemental summary judgment motion , Latham referred the trial court to his first amended petition for bil l of review, stating, “ A meritorious d ef en se to the claims of the Respondent a re clearly set forth.” A review of his amended petit ion shows that appr o ximately ten of its twelve page s address ed the issue of lack of service. The remaining few pages seeming ly address ed his defense to the merits o f Thompson’s underlying suit

. In particular, Latham claimed that he had “ a meritorious def ense , ” wh ich “ was n o t asserted due to a lack of service, and knowledge of a second suit being filed between the parties, and one in which he was made a party.” Ye t, b eyond the self

- serving statement s in his attached affidavit, Latham failed to sta te, much less pro vide , evid e nce of his meritorious defense.

7 Latham did not attach his affidavit to his response to Thompson’s sup plement motion for summary judgment

. It w as, howev er, a part of the pleadings, Latham referred to it in his response , and the trial court c onsidered t he affidavit in making its ruling

.12

III. Conclusion
We aff irm the jud gment of the trial court.

Scott E. Stevens Justice
Date Submitted: A pr il 14, 2022 Date Decided : June 15 , 2022