IN THE SUPREME COURT OF TEXAS

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No. 14-0629

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KATY VENTURE, LTD. AND KATY MANAGEMENT, L.L.C., PETITIONERS,

v.

CREMONA BISTRO CORP., RESPONDENT

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

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PER CURIAM

The petitioners brought this equitable bill of review to set aside a no-answer default 

judgment. They did not receive actual service of process or timely notice of the default judgment 

because they failed to update their registered address with the Secretary of State’s office. They 

contend, however, that the respondent failed to properly certify the petitioners’ “last known 

mailing address,” as our rules require for notice of a default judgment, because the respondent had 

actual notice of petitioners’ current address but certified the old registered address as the “last 

known mailing address.” Because the petitioners presented some evidence that their failure to 

receive notice of the default judgment resulted solely from the respondent’s failure to properly 

certify the petitioners’ “last known mailing address,” and not from any negligence or fault on the 

petitioners’ part, we conclude that they raised a genuine issue of material fact in their bill-of-review 

claim. We therefore hold that the court of appeals erred in affirming the trial court’s summary 
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judgment in favor of the respondent. We reverse the court of appeals’ judgment and remand this 

case to the trial court for further proceedings consistent with this opinion.

Respondent Cremona Bistro Corp. operated a restaurant in space it leased in a commercial 

building owned by Katy Venture, Ltd., whose general partner is Katy Management, L.L.C. After 

a fire destroyed the building, Cremona attempted to recover its losses from Katy Venture’s insurer. 

When the insurer denied the claim, Cremona sued both Katy entities directly, alleging they were 

responsible for the damage because the fire originated in a part of the building under the Katy 

entities’ exclusive control. Cremona first attempted to serve the Katy entities through their 

registered agent, Joel Kommer, by certified mail, using the Katy entities’ registered address on file 

with the Secretary of State’s office. That citation was returned as “not deliverable as addressed” 

and “unable to forward.” Cremona then hired a process server, who attempted to serve Kommer 

personally at the same outdated registered address but was similarly unsuccessful. Cremona then 

served the process by mail on the Secretary of State as the Katy entities’ agent. The Secretary 

forwarded the notice by mail to the same outdated registered address. As it turns out, the Katy 

entities and Kommer had moved several years earlier, but failed to provide an updated registered 

address to the Secretary of State. After the Katy entities did not answer the lawsuit, Cremona 

obtained a default judgment for more than $820,000. 

Rule 239a of the Texas Rules of Civil Procedure requires a party who obtains a default 

judgment to certify the defendant’s “last known mailing address” to the clerk of the court, who 

then mails written notice of the default judgment to that address. TEX. R. CIV. P. 239a. Pursuant to 

this requirement, Cremona certified the Katy entities’ outdated registered address as their “last 

known mailing address.” The clerk then mailed notice of the default judgment to the registered 
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address, and the Katy entities did not receive it. The judgment became final shortly thereafter. See 

id. (noting that failure to comply with Rule 239a “shall not affect the finality of the judgment”).

When the Katy entities later learned of the default judgment, they filed a petition for an equitable 

bill of review, asserting that Cremona had not properly served them with process and had not 

properly certified their last known mailing address for notice of the default judgment under Rule 

239a. Cremona filed a traditional motion for summary judgment, which the trial court granted. The 

court denied Cremona’s claim for attorney’s fees and entered judgment that the Katy entities take 

nothing on their bill of review. The court of appeals affirmed.

We review the grant of summary judgment de novo. Henkel v. Norman, 441 S.W.3d 249, 

250 (Tex. 2014) (per curiam). To succeed on a traditional summary judgment motion, the “movant 

must establish that there is no genuine issue of material fact so that the movant is entitled to

judgment as a matter of law.” W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (citing 

Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991)). “When a movant meets that burden 

of establishing each element of the claim or defense on which it seeks summary judgment, the 

burden then shifts to the non-movant to disprove or raise an issue of fact as to at least one of those 

elements.” Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 

2014). In deciding which party should prevail in this situation, “[w]e examine the record in the 

light most favorable to the nonmovant, indulge every reasonable inference against the motion and 

likewise resolve any doubts against it.” Henkel, 441 S.W.3d at 250; see also Mann Frankfort Stein 

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Smith v. O’Donnell, 288 

S.W.3d 417, 424 (Tex. 2009). 
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When the trial court entered the default judgment, Cremona was required to “certify to the 

clerk in writing the last known mailing address of the party against whom the judgment [was] 

taken.” TEX. R. CIV. P. 239a. Importantly, this requirement to provide the defendant’s “last known 

mailing address” for serving notice of a default judgment differs from the requirement to serve 

process using the registered address on file with the Secretary of State. See TEX. BUS. ORG. CODE

§ 5.201(a)(2), (c)(1) (requiring a filing entity to “designate and continuously maintain . . . a 

registered office . . . where process may be personally served on the entity’s registered agent”).

While failure to comply with Rule 239a will not affect the finality of a default judgment, 

misleading the trial court by giving the wrong “last known mailing address” will make a default 

judgment subject to a bill of review. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275–77 (Tex. 

2012). The Katy entities argue that even if service of process through the Secretary of State was 

proper, they nevertheless raised a genuine issue of material fact with respect to their failure to 

receive notice of the default judgment pursuant to Rule 239a, which denied them the opportunity 

to file a motion for a new trial. See Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812–13 

(Tex. 2012) (per curiam); Petro-Chem. Trans., Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974). 

“A bill of review is an equitable proceeding, brought by a party seeking to set aside a prior 

judgment that is no longer subject to challenge by a motion for a new trial or direct appeal.” Mabon, 

369 S.W.3d at 812 (citing Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam)). 

Ordinarily, a plaintiff must plead and prove: “(1) a meritorious defense to the underlying cause of 

action, (2) which the plaintiff[] [was] prevented from making by the fraud, accident or wrongful 

act of the opposing party or official mistake, (3) unmixed with any fault or negligence on [its] own 

part.” Id. (quoting Caldwell, 154 S.W.3d at 96). But “when a bill-of-review plaintiff claims a due 
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process violation for no service [of process] or notice [of a default judgment], it is relieved of 

proving the first two elements” and must only prove that its own fault or negligence did not 

contribute to cause the lack of service or notice. Id. Because the Katy entities assert a due process 

violation for failure to receive notice of the default judgment under Rule 239a, the law required 

them to raise a genuine issue of material fact only with respect to their lack of fault or negligence 

in failing to receive notice of the default judgment to survive Cremona’s motion for summary 

judgment. See id. at 813 (holding that a bill-of-review plaintiff was required only to establish its 

own lack of negligence when it asserted that it received no notice of the default judgment); 

Amedisys, 437 S.W.3d at 511.

The Katy entities presented some evidence that their failure to receive notice of the default 

judgment was not a result of their fault or negligence, but was instead Cremona’s fault because 

Cremona certified the outdated registered address even though it knew the Katy entities’ actual 

current mailing address. See PNS Stores, 379 S.W.3d at 275–77 (holding that knowingly giving 

trial court incorrect last known address for defendant under Rule 239a constitutes extrinsic fraud). 

The record includes evidence that, prior to instituting the lawsuit, Cremona’s owner met with 

Kommer at the Katy entities’ current business address. In addition, there is evidence that the 

current address was included in a letter Katy Venture’s insurer sent to the parties’ attorneys. Thus, 

there is some evidence that Cremona knew of the Katy entities’ current address yet certified the 

outdated registered address as the “last known mailing address.” Considering this evidence in the 

light most favorable to the non-movants, Henkel, 441 S.W.3d at 250, we conclude that the Katy 

entities have raised a genuine issue of material fact as to whether Cremona gave the trial court 

clerk the Katy entities’ last known mailing address as Rule 239a requires.
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Cremona argues that the Katy entities’ own negligence at least contributed to cause their 

failure to receive notice of the default judgment because the Katy entities failed to update their 

registered address. We have held that an entity’s failure to update its registered address with the 

Secretary of State constitutes negligence in the service-of-process context. See Campus Invs. v. 

Cullever, 144 S.W.3d 464, 466 (Tex. 2004) (per curiam). But even assuming that an entity’s failure 

to update its registered address with the Secretary of State can also constitute negligence in the 

notice-of-default-judgment context, that negligence did not necessarily contribute to cause the 

Katy entities’ failure to receive notice of the default judgment in this case. Because there is some 

evidence that Cremona provided an out-of-date address despite having knowledge of the Katy 

entities’ correct, current address, we cannot presume (and Cremona has not attempted to show) 

that Cremona would have provided the correct “last known mailing address” if the Katy entities 

had updated their registered agent’s address with the Secretary of State. Updating the registeredagent address on file with the Secretary of State would have provided Cremona with another means 

of discovering the Katy entities’ correct address, but there is some evidence that Cremona already 

knew the Katy entities’ correct address and nevertheless chose to supply the court with an outdated 

address.

Although the Katy entities’ negligent failure to update their registered address contributed 

to their lack of actual service of process, we hold that there is a fact issue as to whether that

negligence also contributed to their failure to receive notice of the default judgment. And because 

the Katy entities need only establish lack of negligence to obtain an equitable bill of review, see 

Mabon, 369 S.W.3d at 813, we hold that the trial court should not have granted summary judgment 

and that the court of appeals erred in affirming the trial court’s judgment.
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Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment 

and remand this case to the trial court for proceedings consistent with this opinion. TEX. R. APP.

P. 59.1.

Opinion Delivered: July 24, 2015