trisun-healthcare-llc-improperly-sued-as-trisun-healthcare-llc-dba ( 2012 )

NUMBER 13-10-00486-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARIA ELIDE MORENO
AND ALFREDO MORENO, Appellants,
v.
MELISSA ROSALES, Appellee.
On appeal from the County Court at Law No. 4
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Chief Justice Valdez
Appellants, Maria and Alfredo Moreno, appeal from a final judgment denying
relief on their petition for bill of review. We affirm.
I. BACKGROUND
This case arises from an automobile accident that occurred on January 4, 2007
in Hidalgo County, Texas. On November 7, 2008, appellee, Melissa Rosales, filed suit
against appellants, alleging that appellants were negligent in causing the accident. On
January 6, 2009, appellee filed her motion for default judgment. On February 5, 2009,
the trial court held a hearing on appellee’s motion for default judgment. Thereafter, the
trial court signed a final judgment awarding appellee $749,000.
On December 21, 2009, appellants filed their original petition for bill of review. In
their live petition, appellants alleged that appellee failed to serve them with citation.
Appellants complained that appellee failed to give them notice of her motion for default
judgment and the hearing on the motion. In addition, appellants alleged that they never
received notice of the default judgment.
Appellee moved for summary judgment on traditional and no-evidence grounds.
Appellee attached an affidavit of a process server as evidence in support of the motion.
According to the affidavit, appellants were served with citation on November 14, 2008 at
344 Porter Drive, Brownsville, Texas.
In their response to the motion for summary judgment, appellants continued to
maintain that they were never served with citation. The affidavit of Maria Moreno was
attached to appellants’ response. In the affidavit, Maria Moreno states that she and her
husband have never lived at 344 Porter Drive, Brownsville, Texas and therefore could
not have been served with citation at that address, as alleged by the process server.
Appellee filed an objection to appellants’ response, arguing, among other things,
that Maria Moreno’s affidavit should not be considered as summary judgment evidence
because it “implies (but does not unequivocally state) that neither she nor Mr. Alfredo
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Moreno were served with service. Moreover, they have failed to present one iota of
corroborating evidence.” Among other things, appellee argued that, in the absence of
strong corroborating evidence, the affidavit of an interested party challenging service of
citation is inadmissible and should not be considered by the court.
The trial court held a hearing on the motion for summary judgment on May 19,
2010. Thereafter, the trial court entered a final judgment, which sustained appellee’s
objections to appellants’ response and evidence and granted appellee’s motion for
summary judgment. This appeal ensued.
II. ANALYSIS
In two issues, appellants argue that the trial court erred in granting appellee’s
traditional and no evidence motions for summary judgment. As set forth below, we will
not address the merits of these issues because appellants have failed to address the
trial court’s evidentiary rulings which form the basis of the court’s judgment.
A. Standard of Review
We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390
(Tex. App.—Corpus Christi 2002, no pet.). In a traditional motion for summary
judgment, the movant has the burden of showing both that there is no genuine issue of
material fact and entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
see also Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Ortega v. City Nat’l Bank,
97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003, no pet.). In deciding whether
there is a genuine issue of material fact, evidence favorable to the nonmovant is taken
as true, and all reasonable inferences are made, and all doubts are resolved, in favor of
the nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
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Summary judgment is proper if the movant disproves at least one element of each of
the plaintiff's claims or affirmatively establishes each element of an affirmative defense
to each claim. Id. The nonmovant has no burden to respond to a traditional summary
judgment motion unless the movant conclusively establishes its cause of action or
defense. Swilley, 488 S.W.2d at 68.
A no-evidence summary judgment is equivalent to a pretrial directed verdict, and
this Court applies the same legal sufficiency standard of review. Zapata v. Children's
Clinic, 997 S.W.2d 745, 747 (Tex. App.—Corpus Christi 1999, pet. denied). In an
appeal of a no-evidence summary judgment, this Court reviews the evidence in the light
most favorable to the nonmovant, disregarding all contrary evidence and inferences.
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). If the nonmovant produces
evidence to raise a genuine issue of material fact, summary judgment is improper. TEX.
R. CIV. P. 166a(i). All that is required of the non-movant is to produce a scintilla of
probative evidence to raise a genuine issue of material fact. Zapata, 997 S.W.2d at
747. “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no
more than create a mere surmise or suspicion of a fact.’” Id. (citing Moore v. K Mart
Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied) (quoting
Kindred v. Con/Chem Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Conversely, more than a
scintilla exists when the evidence in support of a challenged element “rises to a level
that would enable reasonable and fair-minded people to differ in their conclusions.”
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). The burden of producing
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evidence is entirely on the nonmovant; the movant has no burden to attach any
evidence to the motion. TEX. R. CIV. P. 166a(i).
In the present case, the trial court did not specify the grounds on which the
summary judgment was granted. If a summary judgment order issued by the trial court
does not specify the ground or grounds relied upon for a ruling, the ruling will be upheld
if any of the grounds in the summary judgment motion can be sustained. Bradley v.
State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Weakly v. East, 900 S.W.2d 755,
758 (Tex. App.—Corpus Christi 1995, 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. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Bill of review plaintiffs
must ordinarily plead and prove (1) a meritorious defense to the underlying cause of
action, (2) which the plaintiffs were 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 their own part. Id.
Bill of review plaintiffs claiming non-service, however, are relieved of two
elements ordinarily required to be proved in a bill of review proceeding. Id. First, if a
plaintiff was not served, constitutional due process relieves the plaintiff from the need to
show a meritorious defense. Id. Second, the plaintiff is relieved from showing that
fraud, accident, wrongful act or official mistake prevented the plaintiff from presenting
such a defense. Id.
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Bill of review plaintiffs alleging they were not served, however, must still prove
the third and final element required in a bill of review proceeding—that the judgment
was rendered unmixed with any fault or negligence of their own. Id. The Texas
Supreme Court has said this third and final element is conclusively established if the
plaintiff can prove that he or she was never served with process. Id. An individual who
is not served with process cannot be at fault or negligent in allowing a default judgment
to be rendered. Id. Proof of non-service, then, will conclusively establish the third and
only element that bill of review plaintiffs are required to prove when they are asserting
lack of service of process as their only defense. Id.1
C. Discussion
By two issues, appellants argue that the affidavit of appellant Maria Moreno was
sufficient to raise a genuine issue of material fact precluding summary judgment on
either the traditional or no-evidence grounds asserted in appellee’s motion for summary
judgment. We will not reach the merits of these issues because, as set forth below,
appellants have failed to challenge the trial court’s ruling concerning their summary
judgment evidence. See TEX. R. APP. P. 47.1.
The trial court sustained appellee’s objections to appellants’ summary judgment
evidence, including the affidavit of Maria Moreno. As a result, appellants’ evidence was
struck and there was no evidence to create a genuine issue of material fact in
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See also Sutherland v. Spencer, No. 10-075055, 2012 Tex. LEXIS 556, *5-6, Tex. Sup. J. 1057
(Tex. June 29, 2012) (“In this circumstance, we focus on the critical question in any default judgment:
‘Why did the defendant not appear?’ If the defendant did not appear because he or she never received
the suit papers, then the court should generally set aside the default judgment. But if the defendant
received the suit papers and has some other reason for not appearing, then the default judgment must be
set aside if the defendant proves the three elements of the Craddock test.”) (citations omitted)
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opposition to either the no-evidence or traditional grounds for summary judgment
sought by appellee in her motion.
To succeed on appeal, it was appellants’ burden to demonstrate that the trial
court abused its discretion by sustaining appellee’s objections to the evidence. See
Retzlaff v. Mendieta-Morales, 356 S.W.3d 676, 681 (Tex. App.—El Paso 2011, no pet.)
(“We find it unnecessary to consider his third issue because, even if the trial court erred
in striking the entire response as untimely, the court’s sustaining of Morales’s objections
still leaves Retzlaff without any evidence to raise a fact issue.”). Appellants have not
raised that issue on appeal. In fact, appellants have not addressed the merits of the
evidentiary rulings made by the trial court or asserted that those rulings were erroneous.
Accordingly, there is no basis for this Court to address the evidentiary rulings.
Moreover, the exclusion of appellants’ summary judgment evidence precludes this
Court from concluding that appellants raised a genuine issue of material fact that would
have rendered summary judgment improper. See id. Therefore, we overrule
appellants’ first and second issues.
III. CONCLUSION
We affirm the judgment of the trial court.
____________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
20th day of December, 2012.
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