Opinion
NUMBER 13-14-00166-CV
01-14-2016
JOSE MARCOS MONTALVO, INDIVIDUALLY AND MARCOS MONTALVO D/B/A MONTALVO ROOFING & CONSTRUCTION, Appellant, v. ADOLFO VELA, INDIVIDUALLY AND ADOLFO VELA D/B/A ADELCO ENTERPRISES, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellee Adolfo Vela, individually and d/b/a Adelco Enterprises, was granted summary judgment on his breach of contract claim against appellant Jose Marcos Montalvo, individually and d/b/a Montalvo Roofing & Construction. Montalvo later filed a petition for bill of review seeking to set aside the earlier judgment. Montalvo now appeals from the trial court's summary judgment dismissing his petition for bill of review. By three issues, which we treat as one, Montalvo argues the trial court erred because: (1) there exist genuine issues of material fact precluding summary judgment on Vela's breach of contract action; (2) "the trial court improperly den[ied]" Montalvo's bill of review; and (3) Montalvo was "denied due process." We affirm.
I. BACKGROUND
Vela sued Montalvo for breach of contract relating to a construction project in which Montalvo served as a subcontractor to Vela who was the general contractor. Vela alleged that Montalvo failed to provide labor and materials as required by the contract. Montalvo, appearing pro se, filed an answer to Vela's original petition. Montalvo later responded to Vela's request for disclosure, and was served the following documents via facsimile: a proposed docket control order; Vela's interrogatories, requests for admission and motion for summary judgment; and the notice of submission date on Vela's summary judgment motion. Montalvo did not file a response to the motion for summary judgment. The trial court granted Vela's motion for summary judgment and awarded damages and attorney's fees.
Montalvo filed with the trial court correspondence from Montalvo to Vela's attorney providing, in part, that "[Vela] and I came to an agreement that he was going to pay my company a final payment of $3[,]000.00 for the work already done and as is."
Approximately two years later, Montalvo filed a petition for bill of review under a separate cause number, asking the trial court to set aside the summary judgment in the earlier lawsuit. By his verified petition, Montalvo alleged he did not receive timely notice of the summary judgment hearing set by submission; he did not receive notice of the trial court's signed summary judgment; and the summary judgment was "legally insufficient."
Vela filed an answer in the bill of review proceeding and later filed traditional and no-evidence motions for summary judgment, alleging that Montalvo's failure to present a defense in the breach of contract action was caused by his own negligence. No response to Vela's summary judgment motions are included in the record on appeal. The trial court granted Vela's motion for traditional summary judgment and dismissed Montalvo's petition for bill of review. This appeal followed.
Although the clerk's case summary indicates that Montalvo filed a response, no response has been filed for review on appeal. See Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004) (explaining that if pertinent motions or evidence considered by the trial court are not included in the appellate record, an appellate court must presume that the omitted motions or evidence support the trial court's judgment). Neither party cites to any such response in their briefs on appeal. --------
II. BILL OF REVIEW
By his issues on appeal, Montalvo argues the trial court erred in granting summary judgment which resulted in the dismissal of Montalvo's petition for bill of review.
A. Standard of Review
We review the grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant for a traditional summary judgment must establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). In conducting our review, we view the evidence in the light most favorable to the nonmovant and make all reasonable inferences and resolve all doubts in the nonmovant's favor. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
A defendant who moves for traditional summary judgment must either disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of any affirmative defense, thereby rebutting plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). If the movant can show it is entitled to judgment as a matter of law, the burden shifts to the nonmovant to present evidence raising a fact issue to defeat the motion for summary judgment. Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.—Houston [1st Dist.] 1991, writ denied).
B. Applicable Law
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 new trial or appeal. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010); Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). The grounds on which a bill of review can be obtained are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)).
A party seeking relief in a bill-of-review proceeding must plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the party was unable to present by virtue of fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any negligence of its own. Caldwell, 154 S.W.3d at 96 (citing Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex.1979)). A summary judgment will be granted against the bill-of-review petitioner if the summary judgment movant can establish the absence of any of the three elements of bill of review. See Montgomery v. Kennedy, 669 S.W.2d 309, 311-12 (Tex. 1984).
C. Analysis
1. Notice of the Underlying Summary Judgment Hearing
By his second issue, Montalvo argues that the notice for the submission date on Vela's motion for summary judgment in the underlying breach of contract action "is insufficient as a matter of law according to [Texas Rule of Civil Procedure] 21a which extends minimum notice to 21 days plus 3 days when service is mailed." Montalvo maintains that "[w]ithout proper notice of the summary judgment hearing, [he] was prevented from asserting his defense." We conclude, however, that the undisputed summary judgment evidence establishes that Montalvo received timely notice of the summary judgment motion submission date.
A nonmovant is entitled to 21 days' notice of the hearing or submission date on a motion, counting from the date the motion and notice of hearing were served. TEX. R. CIV. P. 166a(c). Notice of hearing for submission of a summary-judgment motion is mandatory and essential to due process. See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex. App.—Tyler 2005, no pet.); Clemons v. Denson, 981 S.W.2d 941, 944 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Rule 21a of the rules of civil procedure provides, in pertinent part, whenever a party is required to do some act within a prescribed period after service of notice and notice is served by mail, three days shall be added to the prescribed period. See TEX. R. CIV. P. 21a. The "mailbox rule" of rule 21a applies to a motion for summary judgment served by mail. See Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994).
As noted by Montalvo, the trial court's order setting hearing by submission was signed on July 2, 2010, and indicates that copies were delivered to the parties by mail. However, on July 2, Vela also served Montalvo, by facsimile, notice that Vela's motion for summary judgment was scheduled for submission to the trial court on July 23. Vela presented evidence that he received a confirmation that the facsimile was successfully delivered to Montalvo at 11:27 a.m. on July 2. In response to requests for admission, Montalvo admitted he received the notice on or about July 2. Unlike the mailbox rule, service by facsimile is considered complete on the date of service if received prior to 5:00 p.m. See TEX. R. CIV. P. 21a(b)(2). Therefore, the notice, sent and received 21 days before the submission date, was timely. See TEX. R. CIV. P. 166a(c).
Despite receiving 21 days' notice of the submission date for Vela's motion for summary judgment, Montalvo took no action to respond to the summary judgment motion. Montalvo neither filed a response nor did he seek a continuance. Montalvo's negligence in failing to present a defense in the underlying action constitutes a bar to relief by bill of review. See Caldwell, 154 S.W.3d at 96; see also Jon v. Stanley, 150 S.W.3d 244, 246 (Tex. App.—Texarkana 2004, no pet.) (explaining that if a petitioner has ignored available legal remedies, a petition for bill of review will not be granted).
2. Notice of Entry of Judgment
By his third issue, Montalvo argues that he was denied due process because "[he] was never informed that summary judgment had been granted [in the underlying action.]" Montalvo asserts that "[in] spite of being informed . . . of the location where [Montalvo] could be served with documents, [Vela's] counsel . . . submitted a different address to the Court file, and [Montalvo] was never informed that summary judgment had been granted."
"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." TEX. R. CIV. P. 306a(3). A bill of review may be predicated on a party's lack of notice of a judgment. See Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974); Saint v. Bledsoe, 416 S.W.3d 98, 106 (Tex. App.—Texarkana 2013, no pet.).
Due process requires notice "at a meaningful time and in a meaningful manner" that would enable a party to be bound by a court's judgment to have an opportunity to be heard. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, (1988); accord Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995). "[A] judgment entered without notice or service is constitutionally infirm." Peralta, 485 U.S. at 84; see In re Guardianship of Jordan, 348 S.W.3d 401, 405 (Tex. App.—Beaumont 2011, no pet.) ("The constitutional right to due process of law restricts the ability of a court to render a judgment binding a party without proper notice."). However, situations in which a party has not been subjected to the jurisdiction of the court because there was no service are distinguished from a situation in which a party knew the case was pending and inadequately protected his or her rights. Bledsoe, 416 S.W.3d at 103. Accordingly, a bill-of-review petitioner, such as Montalvo, who has participated in the underlying suit must plead and prove that the lack of notice of judgment was not unmixed with any negligence or fault of his own. See Carroll, 514 S.W.2d at 246 (explaining that bill-of-review plaintiff "had the burden of showing that its failure to file a motion for new trial or appeal was not due to any fault or negligence on the part of [it] or its counsel"); Bledsoe, 416 S.W.3d at 106 (providing that "[w]here . . . the bill-of-review plaintiff's alleged lack of notice is at least partly his or her own fault, there is no due-process issue").
The summary judgment record shows that Montalvo filed an initial answer in the underlying breach of contract action indicating his address, but that he later notified Vela in his response to request for disclosures that his address had changed. Montalvo, however, presented no evidence that he notified the clerk of his new address. The parties are required to provide written notice to the clerk of their current address. See TEX. CIV. PRAC. & REM. CODE ANN. § 30.015(a), (d) (West, Westlaw through 2015 R.S.). Further, "Rule 21a, requiring notices in a judicial proceeding to be sent to the party's last known address, imposes a responsibility on the person to be notified to keep the court and parties apprised of their correct and current address." Bledsoe, 416 S.W.3d at 112 (citation omitted). The failure to exercise reasonable care in fulfilling this duty is negligence and will bar relief by bill of review. Id.
We conclude that any failure of the clerk of the court to send notice of the judgment to Montalvo's "current" address was caused by Montalvo's own negligence. Therefore, Montalvo has not demonstrated a due-process violation that would entitle him to relief by bill of review. See Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004) (per curiam) (concluding failure to update address as required by statute is negligence barring relief by bill of review); Withrow v. Schou, 13 S.W.3d 37, 40 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (noting due process argument absent where attorney fails to notify the clerk in writing of a new address); Mathews v. Harris Methodist, 834 S.W.2d 582, 584 (Tex. App.—Fort Worth 1992, writ denied) (same); see also Binnie v. Coyle, No. 13-09-00227-CV, 2010 WL 4812995, at *7 (Tex. App.—Corpus Christi Nov. 23, 2010, no pet.) (mem. op.) (denying bill-of-review relief where petitioner took no steps to determine whether judgment was rendered despite knowledge that prior attorney had not provided clerk with proper address).
3. Summary Judgment on Breach of Contract Claim
By his first issue, Montalvo argues that the trial court erred in granting summary judgment on Vela's breach of contract claim because there were genuine issues of material fact. We construe this argument as asserting that Montalvo had a meritorious defense to the breach of contract action. However, we have already concluded that Montalvo's failure to assert a meritorious defense was caused by his own negligence. Therefore, we do not address the merits of this argument because it is not necessary to the disposition of this appeal. See TEX. R. APP. P. 47.1.
D. Summary
The undisputed summary judgment evidence reflects that Montalvo's failure to present a meritorious defense or to timely appeal the judgment in the underlying breach of contract action was attributable to Montalvo's own negligence. See Caldwell, 154 S.W.3d at 96; TEX. R. CIV. P. 166a(c). Therefore, the trial court did not err in granting summary judgment and dismissing Montalvo's petition for bill of review. We overrule Montalvo's issues on appeal.
III. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice Delivered and filed the 14th day of January, 2016.