Russell Harris v. Dennis J. Moore D/B/A Moore's Trucking

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00393-CV Russell Harris, Appellant v. Dennis J. Moore d/b/a Moore's Trucking, Appellee FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT NO. 4455, HONORABLE ROBERT R. BARTON, JUDGE PRESIDING Appellant Russell Harris petitioned the trial court for a bill of review to set aside a post-answer default judgment rendered in favor of appellee Dennis Moore d/b/a Moore's Trucking. The cause was tried to a jury, which returned a verdict in favor of Moore. From the court's rendition of judgment on the verdict denying the bill of review, Harris appeals. We will affirm the trial court's judgment. In the cause underlying the petition for bill of review, Moore sued Harris, his business partners, their limited partnership, and their corporation to collect payment for work Moore did on their ranch. Although the judgment in the underlying cause recites that Harris was served with citation, the parties agree that no citation was served on Harris; the parties dispute, however, whether Harris authorized an attorney to accept service of the petition for him. Harris also disputes whether attorney James Hill, who filed an answer on behalf of all the defendants, had authority to file it for Harris. Harris claims that the succeeding legal work that Hill did on his behalf in the cause was likewise unauthorized. Hill withdrew from representation in the cause pursuant to an order on an agreed motion, and none of the defendants appeared for trial. Following a default judgment rendered against all defendants in January 1994, Harris initiated this bill of review.(1) In his first three points of error, Harris challenges the evidentiary support for the jury's finding that Harris ratified the conduct of attorney Hill in filing an answer for and representing Harris until Hill withdrew in December 1993. In point of error four, Harris contends that the trial court's improper comment on the weight of the evidence caused the jury to find ratification erroneously. Because he was never served with citation, Harris seeks to overturn the finding on ratification so that he can rely on a lack of service to support his petition for bill of review. A bill of review is an equitable proceeding by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. Ortega v. First RepublicBank Fort Worth, N.A., 792 S.W.2d 452, 453 (Tex. 1990). A petitioner for bill of review must ordinarily prove (1) a meritorious claim or defense, (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own. Id. One who seeks to set aside a default judgment on the ground that he did not receive notice of pending litigation is exempt from the first two requirements, but must show that his failure to present a meritorious defense was not due to his own negligence. Jarrett v. Northcutt, 592 S.W.2d 930, 930-31 (Tex. 1979); Axelrod R & D, Inc. v. Ivy, 839 S.W.2d 126, 128 (Tex. App.--Austin 1992, writ denied); see Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 86 (1988) (defendant who did not receive notice of pending litigation need not show meritorious defense to seek bill of review); Texas Indus., Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex. 1975) (defendant who was not served with citation need not prove fraud, accident, or wrongful conduct of opponent). To show that he is free from negligence, the petitioner must establish that he was diligent not only to prevent the trial court from rendering a default judgment against him, but also to avail himself of all legal remedies to challenge the judgment after it was rendered. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999); Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989); Axelrod, 839 S.W.2d at 128. By cross-point, Moore argues that the trial court's judgment denying the bill of review is supported by unchallenged findings on an alternative ground. In response to question four, the jury found that Harris was negligent in failing to discover that judgment had been rendered against him individually within ninety days after it was signed. In response to question five, the jury found that Harris' negligence proximately caused his failure to try to set aside the judgment within 120 days after it was signed. Even if Harris did not ratify Hill's conduct and Harris can rely on the lack of service to seek a bill of review, Harris must still prove that his failure to present a meritorious defense was not due to his own negligence. Jarrett, 592 S.W.2d at 930-31; Axelrod, 839 S.W.2d at 128; but see Edison v. Beta Fin. Corp., 994 S.W.2d 827, 830 (Tex. App.--Eastland 1999, pet. denied) (petitioner for bill of review who has not been served need not prove lack of fault). A party who has neglected to pursue an alternative legal remedy such as a motion for new trial, appeal, or restricted appeal is not entitled to equitable relief by way of bill of review. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980). According to the jury's answers to questions four and five, Harris could have discovered by exercising diligence that judgment had been rendered against him in time to move for late notice of judgment. See Tex. R. Civ. P. 306a(4), (5); Tex. R. App. P. 4.2; Vineyard Bay Dev. Co. v. Vineyard on Lake Travis, 864 S.W.2d 170, 172 (Tex. App.--Austin 1993, writ denied) (party who learns of judgment within ninety days of its signing generally has thirty days to move to restart appellate timetable). By failing to seek to restart the appellate timetable, Harris negligently lost the chance to present evidence by motion for new trial that he was never served with citation. We presume that the jury's answers to questions four and five, which Harris does not challenge, support the trial court's judgment. Johnson v. Coggeshall, 578 S.W.2d 556, 560 (Tex. Civ. App.--Austin 1979, no writ). Because the court's judgment can be supported on the ground that Harris failed to exercise due diligence, we need not address Harris' first four points. We sustain Moore's cross-point. In point of error five, Harris asserts that the trial court erred in rendering judgment against him because he proved as a matter of law that the court in the underlying cause never obtained personal jurisdiction over him. By this point, Harris seeks, not to satisfy the requirements for a bill of review, but to collaterally attack the underlying judgment. See Texas Dep't of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.--Austin 1996, writ denied) (bill of review that fails as direct attack may constitute collateral attack). In a collateral attack on a judgment, the recitations of the judgment control the rest of the record and extrinsic evidence cannot be used to establish a lack of jurisdiction. Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex. App.--Dallas 1990, no writ). The court in the underlying cause recited in its judgment that although Harris did not appear at trial, he had been "duly cited and noticed." Harris seeks to expand the scope of review beyond the judgment by invoking the exception to this narrow scope that applies when the defendant alleges that the court lacked any potential jurisdiction. When a court has no potential jurisdiction over the defendant, the defendant can collaterally attack that court's judgment with extrinsic evidence. Dispensa v. University State Bank, 987 S.W.2d 923, 930 (Tex. App.--Houston [14th Dist.] 1999, no pet.); see, e.g., Hicks v. Sias, 102 S.W.2d 460, 464 (Tex. Civ. App.--Beaumont 1937, writ ref'd) (before enactment of long-arm statute, trial court lacked potential jurisdiction over nonresident defendant served out of state); Pellow v. Cade, 990 S.W.2d 307, 312 (Tex. App.--Texarkana 1999, no pet.) (justice court lacked any potential jurisdiction over nonexistent claim). Harris claims that from the time the underlying suit was filed through the date of the judgment he was undisputedly a resident of California, precluding the court from obtaining even potential jurisdiction over him. Assuming the record shows conclusively that Harris was a nonresident, such a showing is insufficient to negate all potential jurisdiction of the trial court. Texas' procedural rules governing service of process and Texas' long-arm statute enabled the court to have potential jurisdiction over him. Dispensa, 987 S.W.2d at 930. Harris does not assert that he lacked the minimum contacts with Texas required to subject him to the personal jurisdiction of the court. Having failed to show that the court lacked any potential jurisdiction over him, Harris must limit his collateral attack to the recitals of the judgment. The judgment's recital that Harris was duly cited forecloses this attack. We therefore overrule point five. We affirm the trial court's judgment. Mack Kidd, Justice Before Chief Justice Aboussie, Justices Kidd and B. A. Smith Affirmed Filed: October 5, 2000 Do Not Publish 1. In the course of prosecuting his bill of review, Harris has brought two previous appeals to this Court. See Harris v. Moore, 912 S.W.2d 860 (Tex. App.--Austin 1995, no writ); Harris v. Moore, No. 03-96-702-CV (Tex. App.--Austin July 24, 1997, no writ) (not designated for publication). ed) (petitioner for bill of review who has not been served need not prove lack of fault). A party who has neglected to pursue an alternative legal remedy such as a motion for new trial, appeal, or restricted appeal is not entitled to equitable relief by way of bill of review. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980). According to the jury's answers to questions four and five, Harris could have discovered by exercising diligence that judgment had been rendered against him in time to move for late notice of judgment. See Tex. R. Civ. P. 306a(4), (5); Tex. R. App. P. 4.2; Vineyard Bay Dev. Co. v. Vineyard on Lake Travis, 864 S.W.2d 170, 172 (Tex. App.--Austin 1993, writ denied) (party who learns of judgment within ninety days of its signing generally has thirty days to move to restart appellate timetable). By failing to seek to restart the appellate timetable, Harris negligently lost the chance to present evidence by motion for new trial that he was never served with citation. We presume that the jury's answers to questions four and five, which Harris does not challenge, support the trial court's judgment. Johnson v. Coggeshall, 578 S.W.2d 556, 560 (Tex. Civ. App.--Austin 1979, no writ). Because the court's judgment can be supported on the ground that Harris failed to exercise due diligence, we need not address Harris' first four points. We sustain Moore's cross-point. In point of error five, Harris asserts that the trial court erred in rendering judgment against him because he proved as a matter of law that the court in the underlying cause never obtained personal jurisdiction over him. By this point, Harris seeks, not to satisfy the requirements for a bill of review, but to collaterally attack the underlying judgment. See Texas Dep't of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.--Austin 1996, writ denied) (bill of review that fails as direct attack may constitute collateral attack). In a collateral attack on a judgment, the recitations of the judgment control the rest of the record and extrinsic evidence cannot be used to establish a lack of jurisdiction. Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex. App.--Dallas 1990, no writ). The court in the underlying cause recited in its judgment that although Harris did not appear at trial, he had been "duly cited and noticed." Harris seeks to expand the scope of review beyond the judgment by invoking the exception to this narrow scope that applies when the defendant alleges that the court lacked any potential jurisdiction. When a court has no potential jurisdiction over the defendant, the defendant can collaterally attack that court's judgment with extrinsic evidence. Dispensa v. University State Bank, 987 S.W.2d 923, 930 (Tex. App.--Houston [14th Dist.] 1999, no pet.); see, e.g., Hicks v. Sias, 102 S.W.2d 460, 464 (Tex. Civ. App.--Beaumont 1937, writ ref'd) (before enactment of long-arm statute, trial court lacked potential jurisdiction over nonresident defendant served out of state); Pellow v. Cade, 990 S.W.2d 307, 312 (Tex. App.--Texarkana 1999, no pet.) (justice court lacked any potential jurisdiction over nonexistent claim). Harris claims that from the time the underlying suit was filed through the date of the judgment he was undisputedly a resident of California, precluding the court from obtaining even potential jurisdiction over him. Assuming the record shows conclusively that Harris was a nonresident, such a showing is insufficient to negate all potential jurisdiction of the trial court. Texas' procedural rules governing service of process and Texas' long-arm statute enabled the court to have potential jurisdiction over him. Dispensa, 987 S.W.2d at 930. Harris does not assert that he lacked the minimum contacts with Texas required to subject him to the personal jurisdiction of the court. Having failed to show that the court lacked any potential jurisdiction over him, Harris must