Chandler, Mark Allen v. Miller, Woodrow W., as Assignee of Judy Ann Citizen, and Joseph Bellard, Sr.

Corrected opinion issued August 9, 2002 In The Court of Appeals For The First District of Texas NO. 01-00-00911-CV MARK ALLEN CHANDLER, Appellant V. WOODROW W. MILLER, AS ASSIGNEE OF JUDY ANN CITIZEN, AND JOSEPH BELLARD, SR., Appellees On Appeal from the 334th District Court Harris County, Texas Trial Court Cause No. 92-36224 C O R R E C T E D O P I N I O N We withdraw our opinion of August 1, 2002 and issue the following in its stead. Appellant, Mark Allen Chandler, appeals a summary judgment rendered against him in a bill of review proceeding he brought in an attempt to set aside a default judgment. In two issues, Chandler argues the trial court erred when it (1) refused to reset appellate timetables pursuant to Texas Rule of Civil Procedure 306a and (2) rendered summary judgment in favor of the appellees, Woodrow Miller (1) and Joseph Bellard, Sr. (2) Chandler claims he never received proper notice of the original lawsuit and he did not receive timely notice of the summary judgment order that dismissed the bill of review. In their cross-points, Miller and Bellard argue they are entitled to sanctions because Chandler's appeal is frivolous and that Chandler's appeal should be dismissed because it is untimely. A separate motion to dismiss Chandler's appeal as untimely is also pending. We overrule the motion to dismiss, reverse the judgment and remand the cause to the trial court, and deny Miller and Bellard's motion for sanctions. Background On November 18, 1996, the trial court rendered a default judgment against Chandler in Cause Number 92-36224; Judy Ann Citizen and Joseph Bellard, Sr. vs. C-E Federal Credit Union, Mark Chandler, Individually and d/b/a Mark Allen Chandler Insurance Agency and d/b/a Accurate Insurance, Lloyd's London, Esprit General Agency, Inc., State Farm Mutual Auto Insurance Company, Inc., and Arizona Premium Finance Company, Inc.; in the 334th Judicial District Court of Harris County, Texas. On September 5, 1998, Chandler, individually and d/b/a Mark Allen Chandler Insurance and d/b/a Accurate Insurance ("Chandler"), filed an Original Petition for Bill of Review. The district clerk's office filed the petition and incorrectly stamped it with the original cause number (92-36224). The bill of review was never given its own cause number. In his bill of review, Chandler sought to set aside the default judgment on the ground that he was never served with process. Furthermore, Chandler argued there were several defects in the method of service employed in the officer's return. Specifically, the return stated substituted service was accomplished under Texas Rule of Civil Procedure 106 by leaving a true and correct copy, with a copy of the petition, with a "white male over 16 years old at 8800 W. Sam Houston Parkway South in Harris County at 3:05 p.m., on the 26th day of July, 1994." Further, the official seal of the court was not on the face of the citation, the citation was directed to both "any sheriff or constable of Texas or other Authorized person" and Mark Chandler. Finally, the return did not state that the address to which the citation and petition were delivered was Chandler's usual place of business, and the return did not recite that a copy of the current petition had been delivered with the citation. Chandler supported the bill of review with his affidavit. In his affidavit, Chandler testified he was the only white male over the age of 16 that worked at his business, that he was not at his business address on the date citation was allegedly served, and that he had never been served (at his business or elsewhere) with citation in Cause Number 92-36224. He also testified he had not attempted to evade service and had not been negligent in failing to answer the lawsuit because he did not know about it. In conclusion, even though he alleged he was not required to do so because the default judgment had been rendered without proper service, Chandler argued he had a meritorious defense to the claims in the underlying suit. Miller and Bellard filed a motion for summary judgment in which they argued they were entitled to judgment as a matter of law because: (1) Chandler had not been diligent in pursuing relief from the underlying judgment as required to prevail in a bill of review and (2) the deputy constables had personally served Chandler. As evidence of proper service, Miller and Bellard attached the officer's return. The motion for summary judgment did not address Chandler's alternative argument that service, if any, was defective. In response to the motion for summary judgment, Chandler argued he was not required to show diligence or a meritorious defense because he was never served with process. Chandler did not address Miller and Citizen's argument that he had been personally served. (3) The trial court took the motion for summary judgment under advisement. On March 15, 2000, the trial court rendered summary judgment in favor of Miller and Bellard on the grounds that Chandler was properly served citation and he did not have a lawful defense to the original suit. This order dismissed the bill of review with prejudice. On May 31, 2000, 76 days after the trial court had signed the summary judgment order, Chandler filed a Verified Motion to Establish Plenary Jurisdiction Pursuant to Rule 306a(4) and a separate motion for new trial. In his Rule 306a motion, Chandler argued neither he nor his attorney, Gerald Fowler, received notice of the summary judgment. In fact, the district clerk's office apparently sent notice of the order to another attorney, Anthony Icenogle, who had represented one of the defendants (4) in the original action. In the 306a motion, Fowler stated he received a document titled "Motion for Judgment" (5) from Miller on May 2, 2000. He read the motion the next day, May 3, 2000, and for the first time learned that the trial court had signed the summary judgment order on March 15. In support of the 306a motion, Fowler attached his affidavit. The affidavit stated he had personal knowledge of the facts in the motion and they were true and correct. He also testified he first learned of the summary judgment when a notice of the Motion for Judgment was sent to his office. In his motion for new trial, filed concurrently with the 306a motion, Chandler argued the summary judgment evidence failed to show Chandler was personally or properly served with citation, and therefore the summary judgment was improper. On July 18, 2000, the trial court denied Chandler's 306a motion for want of jurisdiction. In its order, the trial court stated Chandler "failed to precisely follow Rule 306a(4) by failing to negate that neither he nor his counsel had acquired 'actual knowledge of the judgment' within twenty days after the judgment was signed" and, therefore, Chandler failed to establish a prima facie case of jurisdiction. Because it denied the 306a motion, the trial court did not rule on Chandler's motion for new trial. Chandler filed a notice of appeal on August 16, 2000 (105 days from May 3, 2000, the date he claims he learned of the summary judgment). Miller and Bellard filed a motion to dismiss the appeal for want of jurisdiction on the ground that Chandler's notice of appeal was untimely. Notice of the Judgment and Timeliness of the Appeal In its motion to dismiss, Miller and Bellard argued Chandler's appeal was not timely because the trial court denied Chandler's Rule 306a motion. Consequently, Chandler's motion for new trial was not timely and the appellate timetable was not extended. Therefore, according to Miller and Bellard, Chandler's notice of appeal was due 30 days after the trial court signed the March 15, 2000 summary judgment order. Because Chandler did not file his notice of appeal until August 16, 2000, Miller and Bellard argue the notice of appeal was also untimely and this Court does not have jurisdiction. In response to the motion to dismiss and in his first issue, Chandler argues the trial court erred when it denied his 306a motion because the date of judgment should have been reset to May 3, 2000, the date on which he received actual knowledge of the summary judgment ruling. Was Chandler Entitled to Relief Under Rule 306a? The Rule Rule 306a, titled, "Periods to Run From Signing of Judgment," provides: 1. Beginning of periods. The date a judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file within such periods including, but not limited to, motions for new trial, motions to modify judgment, motions to reinstate a case dismissed for want of prosecution, motions to vacate judgment and requests for findings of fact and conclusions of law; but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose. 2. Date to be shown. Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not invalidate any judgment or order. 3. Notice of judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4). 4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed. 5. Motion, notice and hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed. Tex. R. Civ. P. 306a (emphasis added). In other words, the new timetable begins at the earlier of either the date the party receives "notice" from the clerk or "acquires actual knowledge the order has been signed," so long as neither of these dates occur more than ninety days after the date the order was signed. Id. To reset the timetables, Chandler had to establish, on sworn motion and notice, the date on which the party or his attorney first either received "notice" of the judgment or "acquired actual knowledge" of the signing, and that this date was more than twenty days (but not more than ninety days) after the judgment was signed." Tex. R. Civ. P. 306a(5). Standard of Review We review the trial court's findings of the date a party received notice of judgment by the standards of legal and factual sufficiency of the evidence. Welborn Mortgage Corp. v. Knowles, 851 S.W.2d 328, 331-32 (Tex. App.--Dallas 1993, writ denied); Hot Shot Messenger Serv., Inc. v. State, 798 S.W.2d 413, 414 (Tex. App.--Austin 1990, writ denied). In a non-jury case, the judge is the fact finder. Welborn, 851 S.W.2d at 332. The trial judge weighs the evidence and judges the witnesses' credibility. Id. The judge may accept or reject any witnesses' testimony in whole or in part. Forscan Corp. v. Dresser Indus., Inc., 789 S.W.2d 389, 394 (Tex. App.--Houston [14th Dist.] 1990, writ denied). When the challenge is to the factual sufficiency of the evidence, we examine all of the evidence. Welborn, 851 S.W.2d at 332. We set aside the trial court's finding only if it is so against the great weight and preponderance of the evidence that the finding is manifestly unjust. Welborn, 851 S.W.2d at 332; Hot Shot Messenger, 798 S.W.2d at 415. We may not substitute our judgment for that of the trial court, as the fact finder, even if we could reach a different result on the evidence. Welborn, 851 S.W.2d at 332. We review the trial court's application of the legal principles controlling its ruling with less deference. Welborn, 851 S.W.2d at 332. A trial court has no discretion in determining what the law is or applying the law to the facts. Welborn, 851 S.W.2d at 332; see Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Analysis On March 15, 2000, the trial court signed the summary judgment order. Fowler, Chandler's attorney, never received notice from the court. Apparently, Anthony Icenogle, an attorney who represented one of the parties in cause number 92-36-224, received the notice instead. Fowler first learned of the summary judgment order on May 3, 2000, when he read the notice of a hearing on Citizen and Bellard's Motion for Judgment. (6) Chandler himself never received notice from the court nor had actual knowledge that the judgment had been signed until his attorney told him. On May 31, 2000, Chandler filed a verified motion under Rule 306a that requested the court reset the appellate timetables on the ground that he first learned of the judgment order on May 3. In the 306a motion, Chandler's attorney stated that: (1) neither "the Plaintiff [Chandler] nor Plaintiff's counsel were [sic] given notice of the judgment pursuant to the Rules of Civil Procedure;" (2) "the Plaintiff's attorney first became aware of the Court's March 15th orders on May 3rd, 2000 by way of Mr. Woodrow's (sic) motion for judgment . . . "; and (3) the first notice either the Plaintiff or his attorney had of the Court's March 15th judgment was a notice of hearing sent by Mr. Miller to the offices of Plaintiff's counsel. This notice was received on the 2nd day of May and came to the attention of the Plaintiff's attorney on the following day." Fowler verified the 306a motion and testified in his affidavit that: (1) he had personal knowledge of the facts in the 306a motion and they were true and correct; (2) he obtained the knowledge of these facts when the opposing attorney sent a Motion for Judgment to his office; and (3) it was from this notice that he first learned of the summary judgment ruling. The court held a hearing on the 306a motion on July 7. Subsequently, on July 18, the trial court denied the 306a motion on the grounds that Chandler did not prove that neither he nor his counsel had acquired "actual knowledge of the judgment within twenty days after the judgment was signed," and therefore had not established a prima facie case of jurisdiction. Examining all of the evidence, we hold the trial court's denial of Chandler's 306a motion was so against the great weight and preponderance of the evidence and is manifestly unjust because neither Chandler nor his attorney had notice or actual knowledge of the judgment until May 3, 2000, 48 days after the summary judgment order was signed. Was Chandler's Notice of Appeal Timely? Because we have concluded that Chandler was entitled to relief under Rule 306a, we turn to whether the notice of appeal was timely. A notice of appeal generally must be filed within 30 days after a trial court has signed an appealable order. Tex. R. App. P. 26.1. If a proper post-judgment motion is filed, the time is extended to 90 days from the date of the judgment. Id. Rule 26.3 provides for a possible 15-day extension to these periods. Tex. R. App. P. 26.3. Where an appellant, in good faith, files a perfecting instrument within the time period allowed by Rule 26.3, a motion for extension of time is "necessarily implied." Verburgt. v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Because Chandler filed a motion for new trial along with his 306a motion, his notice of appeal was due 90 days from May 3, 2000 (the date on which his attorney acquired actual knowledge of the judgment). Chandler argues he filed, in good faith, his notice of appeal within 15 days after the 90-day deadline. In addition, he has reasonably explained the need for an extension. In response to Miller and Bellard's motion to dismiss the appeal, Chandler stated his attorney had not been able to reach him regarding the trial court's ruling on the 306a motion and to discuss whether Chandler wished to appeal the case. In his affidavit, Chandler testified he had moved to Minnesota in May 2000 for a new job and had forgotten to inform his attorney of his move. Chandler also testified he and his wife were in the process of separating, and his wife ultimately filed for divorce during this time period. In Fowler's affidavit, also attached to Chandler's response to the motion to dismiss, he testifies that once Chandler contacted him and gave consent to appeal the case, Fowler filed the notice of appeal. Therefore, including the "implied" motion for extension of time, Chandler had 105 days from May 3, 2000 to file a notice of appeal. Because we have held that the trial court should have granted the 306a motion and the date of judgment should be reset to May 3, 2000, the notice of appeal (filed on August 16, 2000) was timely because it was filed exactly 105 days from May 3, 2000. Based on the record and applicable law, we hold that notice of appeal was timely and this Court has jurisdiction. We overrule Miller and Bellard's motion to dismiss. Was Summary Judgment Proper? In his second issue, Chandler argues that the trial court erred in rendering summary judgment in favor of Miller and Bellard on the bill of review because both the citation and return are defective in that they do not strictly comply with the Rules of Civil Procedure. As a result, Chandler argues, the service of process was fatally defective and insufficient to confer personal jurisdiction over him in the underlying lawsuit. Standard of Review Summary judgment is proper only when the movant establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Lawson v. B Four Corp., 888 S.W.2d 31, 34 (Tex. App.--Houston [1st Dist.] 1994, writ denied). In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in his favor. Randall's Food Mkts., 891 S.W.2d at 644. We will take all evidence favorable to the nonmovant as true. Id. When, as here, the order states the grounds relied on for the judgment, the summary judgment can be affirmed if one of those grounds is meritorious. See State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); State Farm Mut. Auto. Ins. Co. v. Nguyen, 920 S.W.2d 409, 410 (Tex. App.--Houston [1st Dist.] 1996, no writ). Therefore, we consider only the two grounds stated in the order. Other than a statement in the prayer of the motion for summary judgment that "plaintiffs were properly served citation and do not have a lawful defense to the underlying suit," Miller and Bellard did not argue in their motion that Chandler was required to show a lawful defense and could not as a matter of law. A defendant cannot obtain a summary judgment on causes of action not addressed in its motion for summary judgment. Stiles v. RTC, 867 S.W.2d 24, 26 (Tex. 1993); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 671 (Tex. App.--Houston [1st Dist.] 1996, no writ). Further, we cannot affirm a summary judgment on a ground not included in the motion for summary judgment. Farah, 927 S.W.2d at 671. Analysis Chandler's bill of review is a direct attack on the judgment in the original lawsuit. McEwen v. Harrison, 345 S.W.2d 706, 709 (Tex. 1961) (orig. proceeding); Min v. Avila, 991 S.W.2d 495, 499 (Tex. App.--Houston [1st Dist.] 1999, no pet.). We indulge no presumptions in favor of valid issuance, service, or return of citation to support the default judgment. Min, 991 S.W.2d at 499. To obtain bill-of-review relief, the petitioner may demonstrate that the judgment is invalid for lack of proper service of process, whether or not the face of the record discloses the invalidity and despite recitals of proper service in the judgment under attack. Id. at 499-500. A default judgment is void unless the defendant has been served with process in strict compliance with the law, has accepted or waived service, or has entered an appearance. Id. at 500; Tex. R. Civ. P. 124. To succeed by bill of review, the petitioner must ordinarily allege and prove three elements: (1) a meritorious defense to the cause of action supporting the earlier judgment; (2) which the petitioner could not assert because of the fraud, accident, or wrongful act of the opposing party, or official mistake; (3) untainted by any negligence on the petitioner's part. Min, 991 S.W.2d at 500; West Columbia Nat'l Bank v. Griffith, 902 S.W.2d 201, 205 (Tex. App.--Houston [1st Dist.] 1995, writ denied). However, when a petitioner for bill of review claims the judgment is void for lack of proper service, and thus violates due process of law, the petitioner need not prove a meritorious defense, nor show fraud, accident, or mistake by the opposing party. Peralta v. Heights Med. Ctr., 485 U.S. 80, 86, 108 S. Ct. 896, 900 (1988); Min, 991 S.W.2d at 500; West Columbia Nat'l Bank, 902 S.W.2d at 205. Because Chandler claimed lack of proper service, he had to establish only two elements in order to succeed on his bill of review: (1) lack of proper service and (2) his own diligence in setting the default judgment aside. See Min, 991 S.W.2d at 500. In response to Chandler's bill of review, Miller and Bellard filed a motion for summary judgment. In their first ground, Miller and Bellard argued that Chandler had been personally served with process. We can find no evidence in this record that Chandler was personally served. The only evidence presented for our review relevant to this issue is the return of citation. The officer's return contradicts Miller and Bellard's claim that Chandler was personally served. It states: "per [Texas Rule of Civil Procedure] 106, served white male over 16 years old." Further, Miller and Bellard did not attach any summary judgment evidence that service complied with the trial court's Rule 106 order, if it in fact existed. Nor is there evidence in the record that proves the trial court ever permitted substituted service under Rule 106 (7) in the underlying lawsuit. As we noted above, a default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the Texas Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.--Houston [1st Dist.] 1999, no pet.). If strict compliance is not affirmatively shown, the service of process is invalid and has no effect. Uvalde Country Club v. Martin Linen Supply, 690 S.W.2d 884, 885 (Tex. 1985); Barker CATV, 989 S.W.2d at 792. When the trial court authorizes substituted service under Texas Rule of Civil Procedure 106, the record must show service strictly complied with the court's order. See Pao v. Brays Village East Homeowners Ass'n, Inc., 905 S.W.2d 35, 38 (Tex. App.--Houston [1st Dist.] 1995, no writ); Brown v. Magnetic Media, Inc. 795 S.W.2d 41, 43 (Tex. App.--Houston [1st Dist.] 1990, no writ). Again, no Rule 106 order is part of the record, so we cannot determine whether Miller and Bellard strictly complied with such an order. In contrast to the usual rule that all presumptions will be made in support of a judgment, there are no presumptions of valid issuance, service, and return of citation when examining a default judgment. Barker CATV, 989 S.W.2d at 792; McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.--Houston [1st Dist.] 1992, writ denied). Jurisdiction over the defendant must affirmatively appear by a showing of due service of citation, independent of the recitals in the default judgment. Barker CATV, 989 S.W.2d at 792. The summary judgment evidence does not support the argument that Chandler was personally served with process. Further, Citizen and Bellard failed to prove and the record does not show the trial court ever authorized substituted service. Citizen and Bellard did not prove that service was affected in compliance with any trial court order. Citizen and Bellard, as summary judgment movants, failed to meet their burden to show they were entitled to judgment as a matter of law. Tex. R. Civ. P. 166a. In their second ground, Miller and Bellard argue Chandler did not have a meritorious defense to the original lawsuit. However, when (as Chandler does in this case) a petitioner for bill of review claims the judgment in the original case is void for lack of proper service, and thus violates due process of law, the petitioner need not prove a meritorious defense, nor show fraud, accident, or mistake by the opposing party. Min, 991 S.W.2d at 500; see Peralta, 485 U.S. at 86, 108 S. Ct. at 900. Therefore, the trial court's ruling that Chandler did not have meritorious defense to the underlying lawsuit, which is stated in the summary judgment order, cannot support the summary judgment. Because neither ground in the summary judgment order can support the summary judgment, we sustain Chandler's second issue. Motion for Sanctions In a single cross-point, the appellees request this Court to sanction Chandler and his attorney for bringing a frivolous appeal. See Tex. R. App. P. 45. Under Rule 45, we may award just damages if we objectively determine, after considering "the record, briefs, or other papers filed in the court of appeals," an appeal is frivolous. Tex. R. App. P. 45; Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.--Houston [1st Dist.] 2001, no pet.). In applying Rule 45, we exercise prudence, caution, and careful deliberation. Id. Additionally, to objectively determine whether an appeal is frivolous, we look at the record from the viewpoint of the advocate and decide whether he had reasonable grounds to believe the case could be reversed. Id. From the record and briefs filed with this court, we cannot conclude Chandler's appeal is objectively frivolous. Therefore, we overrule the cross-point. Conclusion We deny the motion to dismiss, reverse the trial court's judgment and remand the cause, and deny Miller and Bellard's motion for sanctions. Sherry J. Radack, Justice Panel consists of Chief Justices Schneider and Justices Taft and Radack Do not publish. Tex. R. App. P. 47.4. 1. Woodrow Miller represented Citizen and Bellard in the original lawsuit. Citizen assigned her interest in the suit to Miller, and he intervened in the bill of review. This Court restyled the case to reflect the correct parties. 2. In this Court's order of April 18, 2002, we advised Bellard he was appearing pro se because Miller is not currently authorized to practice law. We afforded Bellard the opportunity to obtain other counsel and/or to object to appearing pro se. No other attorney appeared on Bellard's behalf, and Bellard lodged no objection to his pro se status. 3. Again, however, Chandler had stated in his bill of review and his supporting affidavit that he had never been served. 4. It is not clear from the record which party Mr. Icenogle represented in the original lawsuit. 5. The "Motion for Judgment" is not in the record, so this Court does not know the reason Citizen and Bellard filed it. 6. Chandler's attorney apparently received the "Motion for Judgment" on May 2, 2000, but did not read it until the following day. 7. Rule 106(b) provides that "upon motion supported by affidavit stating the location of the defendant's usual place of business or usual pace of abode or other place where defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit; or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."