Seaprints, Inc., Herman H. Koster and Elisabeth Koster v. Cadleway Properties, Inc.

Opinion issued August 12, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00860-CV
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SEAPRINTS, INC., HERMAN H. KOSTER,
AND ELISABETH KOSTER, Appellants
V.
CADLEWAY PROPERTIES, INC., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2012-72404
OPINION
Appellants Seaprints, Inc., Herman H. Koster, and Elisabeth Koster filed a
bill of review, seeking to vacate a 2007 default judgment entered against them in
favor of appellee Cadleway Properties, Inc. The appellants claimed that they were
never served with process and had no notice of the action in which the default
judgment was rendered. Both sides of the dispute moved for traditional summary
judgment, which the trial court entered in favor of Cadleway. However, because
the appellants presented evidence corroborating their sworn denials of service, we
reverse and remand the case for further proceedings consistent with this opinion.
Background
Seaprints, Inc., a corporation owned by Herman and Elisabeth Koster,
secured a loan from the Small Business Administration in 1995. The Kosters both
personally guaranteed the loan. Later, Cadleway Properties, Inc. acquired the note.
When Seaprints stopped making payments, Cadleway sued Seaprints and the
Kosters to enforce the note and personal guaranties.
The parties dispute whether Seaprints and the Kosters were served with
process. Curtis Wheeler, a licensed process server, executed affidavits of service
for all defendants, stating that he personally delivered the citations at specified
residential addresses to the Kosters in Seabrook, Texas, and to the registered agent
of Seaprints, Mark Salbert, in League City, Texas.
At the time Wheeler claimed to have accomplished service of process,
Elisabeth and Herman were separated and living apart from each other. Though the
couple did not divorce until later, at the time Herman was no longer living at the
marital home in Seabrook, and he had moved into an apartment in Kemah, Texas.
Salbert claimed that he was not at his League City residence at the time he was
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allegedly served. In his affidavit, he declared that he had been at a pawn shop
buying a carpet shampooer.
No party ever filed an answer to Cadleway’s petition. On April 19, 2007, the
trial court signed a default judgment awarding $11,295 and post-judgment interest
to Cadleway. This document decreed that Cadleway “have and recover” judgment
“from Defendant, Richard D. Cardenas”—a stranger to the lawsuit—and it did not
specify a recovery from any defendant named in the suit. Recognizing the error
months later, Cadleway filed a motion for judgment nunc pro tunc. On January 14,
2008, the trial court entered an “Order for Judgment Nunc Pro Tunc” and a new
judgment substituting the three defendants’ names for “Richard D. Cardenas.” In
their bill of review, Seaprints and the Kosters avowed that they had no
contemporaneous knowledge of the judgment or these trial court proceedings.
Cadleway eventually sold the judgment to National Judgment Recovery
Center, L.P., which in turn obtained a writ of execution. On the basis of this writ,
in September 2012 a commercial building owned by the Kosters and located in
Brazoria County was seized and sold at auction by the local sheriff. The purchaser
at the sheriff’s sale was SOCA Funding, LLC. Though they had been divorced for
several years by this time, the Kosters had continued to jointly own the Brazoria
County property, and they had borrowed money from a bank using the property as
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collateral. In addition to the interest it acquired at the sheriff’s sale, SOCA also
purchased the note and deed of trust the Kosters had given to the bank.
The Kosters sued SOCA in Brazoria County, seeking to set aside the
sheriff’s sale. They had long leased the Brazoria County building to a commercial
tenant. In their affidavits, they claimed that they first heard of the judgment against
them when their tenant informed them of the sheriff’s sale. They successfully
obtained a temporary injunction requiring SOCA to conserve the rents it received
and forbidding it from foreclosing.
In addition to the Brazoria County action, Seaprints and the Kosters filed a
bill of review in Harris County, in the same trial court that had entered the default
judgment against them. Naming Cadleway as defendant, they alleged that a bill of
review was proper as they never had received notice of the prior suit and they
never had been served with process. They further argued that the judgment nunc
pro tunc, substituting their names for “Richard D. Cardenas,” was improperly
entered after the expiration of the trial court’s plenary power. They moved for
traditional summary judgment arguing that the default judgment against them was
thus void because it was made at a time when the trial court lacked jurisdiction.
Cadleway also moved for traditional summary judgment. It argued that
Seaprints and the Kosters, in the face of affidavits of service executed by a licensed
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process server, failed to meet an enhanced burden of proof to demonstrate that they
had not been served. Cadleway attached evidence to its motion, including:
• Wheeler’s affidavits of service for Seaprints and each of the Kosters;
• a transcript of the Kosters’ testimony in the Brazoria County
proceeding;
• a sworn “Designation and Disclaimer of Homestead” executed by the
Kosters in 2008, in which they both identified the house in Seabrook
as their homestead and the residence they had occupied since 1991;
• franchise tax forms obtained from the Texas Secretary of State
identifying the Kosters as officers of Seaprints and listing an address
for both at the Seabrook house;
• another affidavit from Wheeler in which he affirmed that he served
the Kosters and Salbert (as registered agent for Seaprints), that he
remembered having served them, that he remembered the location of
their residences, and that he recognized the Kosters’ faces from their
photographs;
• an affidavit from an employee of the Harris County District Clerk
who attested that notice of the entry of the default judgment was
automatically mailed to Seaprints and the Kosters at their last known
address, which was the Seabrook house; and
• a certified copy of an abstract of judgment, reflecting a default
judgment against Seaprints and the Kosters, filed in Harris County in
June 2007.
The appellants filed a response to Cadleway’s motion for summary
judgment to which they attached evidence, including:
• affidavits of the Kosters and Salbert, denying that they were served
with process or had notice of the action and default judgment until
they learned of the sheriff’s sale;
• a copy of the 2009 decree of divorce dissolving the Kosters’ marriage;
• documents reflecting Herman’s home address in Kemah, including his
Texas driver’s license;
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• a copy of a receipt from EZPAWN in Webster, Texas, indicating that
Salbert purchased a carpet shampooer less than half an hour before the
time indicated on Wheeler’s corresponding affidavit of service;
• the affidavit of Diane Gillebaard affirming that the Kosters separated
in 2006 and that Herman moved to an apartment that Gillebaard
owned in Kemah; and
• the affidavit of Kaye Sykes, a neighbor, affirming that the Kosters
separated in 2006, that Herman moved to Kemah and “did not return
after that to live with Elisabeth,” and that she “did not see Herman
Koster around” the Seabrook house or the surrounding yacht club “at
any time after he moved out in January of 2006.”
Cadleway filed a reply to this response, in which it lodged numerous
objections to the supporting evidence. For example, it objected that the receipt for
the carpet shampooer was hearsay and that many statements in the affidavits were
conclusory or speculative. Apart from these objections, Cadleway attached new
evidence to its reply, including several deposition excerpts and a Lakewood Yacht
Club activity log from the club’s guard booth indicating that a process server
passed through to visit “Koster, Elisabeth & Herman” on the night that Wheeler
claims to have served them.
Ultimately, the trial court entered summary judgment in favor of Cadleway.
It did not rule on Cadleway’s evidentiary objections. Seaprints and the Kosters
filed a motion for new trial, which was overruled by operation of law. This appeal
followed.
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Analysis
The appellants argue that the trial court erred both in granting Cadleway’s
motion for summary judgment and in denying their own motion for summary
judgment. With respect to Cadleway’s motion, they argue that they were entitled to
proceed with their bill of review because they offered evidence corroborating their
denials that they had been served with process. In regard to their own motion for
summary judgment, they argue that the evidence conclusively established that the
judgment nunc pro tunc replacing their names for “Richard D. Cardenas” was
entered at a time after the trial court’s plenary power had expired, that it corrected
a judicial error rather than a clerical error, and that it was accordingly void.
I. Cadleway’s motion for summary judgment
Traditional summary judgments are reviewed de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant has the burden of
showing that no genuine issue of material fact exists and that it is therefore entitled
to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548 (Tex. 1985). A defendant moving for summary judgment is required either to
conclusively negate at least one essential element of the plaintiff’s cause of action
or to conclusively establish each element of an affirmative defense. Sci. Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). To determine whether there is
a disputed material fact, we consider evidence favorable to the nonmovant as true
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and draw every reasonable inference in its favor, resolving all doubts on the side of
the nonmovant. Nixon, 690 S.W.2d at 548–49.
“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) (per curiam).
Ordinarily, bill-of-review plaintiffs must 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.
In this case, the appellants assert that they were never served with process.
Bill-of-review plaintiffs who claim they were not served need not present a
meritorious defense or evidence of fraud, accident, or mistake. Id. at 96–97.
Furthermore, plaintiffs who prove non-service thereby conclusively establish their
lack of fault or negligence. Id. at 97. Thus, proof of non-service conclusively
establishes the “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.
The bill-of-review plaintiff bears the burden of proving that he was not
served with process. Id. Because a bill of review constitutes a direct attack on a
judgment, no presumption applies in favor of the valid issuance, service, or return
of the citation. Min v. Avila, 991 S.W.2d 495, 499 (Tex. App.—Houston [1st Dist.]
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1999, no pet.). A “bill-of-review petitioner may therefore 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.
Nonetheless, a plaintiff’s bare denial that he was served is inadequate to
carry his burden in the face of a valid return of service. Id. at 501. In order to
overcome a prima facie showing of service of process established by the recitals in
the officer’s return, the plaintiff must come forward with “evidence of supporting
facts and circumstances” to corroborate his denial. Id. This evidence may be
circumstantial and need not consist of the testimony of other witnesses. See id. at
501, 503. Indeed, the court in Min v. Avila, 991 S.W.2d 495 (Tex. App.—Houston
[1st Dist.] 1999, no pet.), observed that the plaintiff’s own testimony may serve as
corroborating evidence in this regard: “The prohibition against considering the
challenger’s evidence applies only if the evidence does not rise above mere denial
of service, or mere denial of service buttressed only by the serving officer’s
inability to remember serving that particular party.” Id. at 503. Whatever the
source of the evidence, the definitive test “is whether it demonstrates independent
facts and circumstances that support, and thus corroborate, the challenger’s claim.”
Id. For example, the bill-of-review plaintiff in Min corroborated his denial of
service with his own testimony that he had moved away from the apartment where
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he purportedly was served, that he had discontinued electrical service there, and
that another family was living there at the time of the purported service. Id.
Cadleway argues that a bill-of-review plaintiff must not only corroborate his
denial of service, but that his evidence of non-service must satisfy an enhanced
burden of proof “beyond preponderance of the evidence.” To support its position,
Cadleway relies upon statements from several older cases. For example, in
Cortimiglia v. Miller, 326 S.W.2d 278 (Tex. Civ. App.—Houston [1st Dist.] 1959,
no writ), the court wrote:
The law is well settled that the return of service either by a sheriff or
any other officer authorized by law to make it, is prima facie evidence
of the material facts recited therein and a court of equity should not
set aside a judgment rendered thereon except upon clear, satisfactory
and convincing proof of lack of service of process by the officer who
made it.
326 S.W.2d at 282. Other cases referenced by Cadleway contain similar language.
See Sgitcovich v. Oldfield, 220 S.W.2d 724 (Tex. Civ. App.—Galveston 1949, writ
ref’d); Johnson v. Cole, 138 S.W.2d 910 (Tex. Civ. App.—Austin 1940, writ
ref’d); Crawford v. Gibson, 203 S.W. 375 (Tex. Civ. App.—Dallas 1918, writ
ref’d). All of these cases have an antecedent in Randall v. Collins, 58 Tex. 231
(1881).
We disagree with Cadleway’s characterization of the burden of proof. As
subsequent cases attest, the burden of proof for a bill-of-review plaintiff is
preponderance of the evidence. Caldwell, 154 S.W.3d at 98 (“At trial, he must
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establish by a preponderance of the evidence that he was never served.”); Ward v.
Nava, 488 S.W.2d 736, 738 (Tex. 1972) (“As in any other fact issue, the burden
was . . . to establish his case by a preponderance of the evidence.”); Perez v. Old
W. Capital Co., 411 S.W.3d 66, 72 (Tex. App.—El Paso 2013, no pet.) (“The party
asserting lack of service must corroborate it with ‘evidence of supporting facts and
circumstances’ by a preponderance of evidence.”). Past pronouncements to the
contrary have been abrogated by these decisions of more recent vintage.
Seaprints and the Kosters argue that they submitted corroborating evidence
of their denials of service and that therefore summary judgment against them was
improper. We review the record concerning each appellant individually to
determine whether Salbert, Herman, and Elisabeth corroborated the denial of
service with evidence of supporting facts and circumstances.
A. Service on the agent of Seaprints
Salbert, who was purportedly served as registered agent of Seaprints,
executed an affidavit denying that he had been served with process. He further
denied having had any awareness of the lawsuit until he was informed by the
Kosters of their efforts to set aside the sheriff’s sale. Significantly, Salbert did not
merely deny that he had been served, but he averred that on the morning at issue he
had not been at his home in League City, but he was instead in the nearby town of
Webster, buying a carpet shampooer. Salbert thus furnished testimony of an
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independent fact or circumstance—his presence at a pawnshop in another town—
and he did not merely deny that he had been served. See Min, 991 S.W.2d at 503.
Moreover, the appellants presented a receipt indicating that Salbert purchased a
carpet shampooer at 11:16 AM, seventeen minutes before the time listed on the
affidavit of service. See Sanders v. Harder, 148 Tex. 593, 597, 227 S.W.2d 206,
209 (1950) (“[I]t is not required that the corroborating evidence be direct. It may
be wholly circumstantial.”).
Cadleway argues that the receipt was hearsay. Although Cadleway objected
to this evidence in the trial court, it did not obtain a ruling on its objection. “Failure
to secure the trial court’s ruling on the objections to the summary judgment
evidence also waives the complaint for appeal.” Vice v. Kasprzak, 318 S.W.3d 1,
11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial court’s order
granting summary judgment in Cadleway’s favor does not function as an implicit
ruling sustaining the objection. See Delfino v. Perry Homes, 223 S.W.3d 32, 35
(Tex. App.—Houston [1st Dist.] 2006, no pet.). While defects of substance in
summary judgment evidence may be raised for the first time on appeal, hearsay is
considered an objection as to form. See Grand Prairie Indep. Sch. Dist. v.
Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam) (failure to object to
defects in form resulted in waiver); Green v. Indus. Specialty Contractors, Inc., 1
S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (defect of
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substance may be raised for the first time on appeal but hearsay is defect of form,
not substance). As such, Cadleway waived its objection, and the receipt remains
part of the summary-judgment evidence we consider.
In light of Salbert’s sworn statement that he was at another location on the
morning when he purportedly was served and his presentation of the receipt, which
corroborates his account, we conclude that Seaprints presented evidence of
independent facts and circumstances to corroborate its denial of service.
B. Service on Herman Koster
Herman also executed an affidavit denying that he was served with process.
In it, he averred that on the date he was purportedly served, February 6, 2007, he
was living in Kemah and had separated from Elisabeth. He denied being at his
former home in Seabrook at any time that day. He disavowed having had any
knowledge of the lawsuit until he heard about the sheriff’s sale. In addition to
Herman’s affidavit, the appellants offered copies of his car registration (dated July
30, 2007), bills (dated October 30, 2006 and May 9, 2007), and his driver’s license
(expiration date, August 27, 2008), all showing his Kemah address. Furthermore,
appellants presented the affidavit of Kay Sykes, a former neighbor of the Kosters
in Seabrook, who averred, “Herman Koster moved to Kemah, Texas at the
beginning of 2006 and did not return after that to live with Elisabeth.” Diane
Gillebaard, in her affidavit, claimed Herman moved in January 2006 to an
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apartment that she and her husband owned in Kemah and that he resided there until
they sold the property in 2008.
Like the successful bill-of-review plaintiff in Min, Herman corroborated his
denial of service by affirming that he had changed his residence over a year before
the date he was supposedly served at his former home. See Min, 991 S.W.2d at
503. He further stated that he and Elisabeth were separated at that time, “an
independent fact or circumstance” consistent with his absence from the marital
home. He also specifically denied being at the Seabrook residence at any time on
the day when he was supposedly served. Aside from Herman’s testimony,
appellants offered circumstantial evidence, in the form of the various documents
bearing his Kemah address, to support Herman’s claim that he had changed
residences. The affidavits of Sykes and Gillebaard are evidence that Herman was
living in Kemah as he claims, and thus further circumstantial evidence that he was
not present in Seabrook on the night he was supposed to have been served.
Although Cadleway claims that the affidavits of Sykes and Gillebaard are “riddled
with factual conclusions,” this objection is inadequate as it fails to identify specific
objectionable portions of the affidavits or to explain why any particular passages
should be disregarded as conclusory. See Walston v. Anglo-Dutch Petroleum
(Tenge) L.L.C., No. 14–07–00959–CV, 2009 WL 2176320, at *8 n.8 (Tex. App.—
Houston [14th Dist.] July 23, 2009, no pet.) (mem. op.) (dismissing objections to
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affidavits when they were not supported by legal authority and failed to identify
specific statements challenged within paragraphs); Stewart v. Sanmina Tex. L.P.,
156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.) (refusing to consider
objections to affidavits—that they were conclusory and not based on personal
knowledge—when objections were not sufficiently specific).
Given Herman’s denial that he was present at the Seabrook residence at any
time on the day in question, his affirmation that he was living somewhere else due
to his separation from his wife, and the several documents and collateral affidavits
attesting to his change of residence, we conclude that he presented evidence of
independent facts and circumstances to corroborate his denial of service.
C. Service on Elisabeth Koster
Elisabeth also made an affidavit denying that she was served with process.
However, she did not deny being present at the Seabrook residence, and in her
deposition, she admitted that “as far as [she] knew,” she was home in Seabrook on
the night she was purportedly served. Like Herman and Salbert, she denied having
had any knowledge of the proceedings against her until she learned of the sheriff’s
sale.
Elisabeth averred that she was the president of Seaprints and that Salbert, its
registered agent, had never notified her that the company had been served with
process or had a judgment entered against it. Referring to herself and Herman, she
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further stated, “We could not possibly have both been served at my home address
on that date because Herman Koster was not there on that date. We had separated
and he moved to Kemah, Texas, in January of 2006.”
Elisabeth also stated, “In August of 2008, Herman Koster and I refinanced
the commercial property we owned in Pearland, Brazoria County, Texas with
Amegy Bank. At that time, neither we nor the bank making the loan had any
knowledge of the judgment made the subject of this case.” She continued, “In my
opinion the property was worth at least $950,000 in 2012, and the outstanding
mortgage against the property was less than $400,000. Had I known of any
judgment against me which endangered my ownership in the property, I certainly
would have taken action to protect my property.”
Unlike the other two individuals purportedly served by Wheeler, Elisabeth
did not claim to have been somewhere other than the address on the return of
service at the time of the purported service. On the contrary, she acknowledged
having been at her home. Nonetheless, the summary-judgment evidence, taken as a
whole, adequately corroborated Elisabeth’s denial of service. Importantly, the
affidavits of service claimed that both of the Kosters were served at the Seabrook
residence at the same time. As both Kosters averred in their affidavits, Herman was
not living at the Seabrook residence at that time and was not present on that night.
The evidence suggesting that the affidavit of service was false as to Herman
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therefore tends to suggest that the affidavit of service was false as to Elisabeth as
well. Similarly, if taken as true, Salbert’s denial that he was served and the
corroborating evidence that he was somewhere else that morning impeach
Wheeler’s credibility and that of the affidavit he executed claiming to have served
Elisabeth.
Testimony in Ward v. Nava, 488 S.W.2d 736 (Tex. 1972), that the Supreme
Court of Texas found corroborative illustrates the scope of circumstantial evidence
upon which a bill-of-review plaintiff may rely:
Ward stated in this affidavit that he was not served in person; that on
Friday, November 19, 1971, someone, whose name he did not
remember, called and asked about the lawsuit. Ward did not elaborate
as to the identity of the party calling nor did he state for what reason
the party calling might have an interest in the case. As a result of the
call, Ward began looking for the papers that were supposed to have
been served on him. He found the petition in his house as a result of
his search on Sunday, November 21, and presumed that it had
originally been left in his mailbox. He forgot to take the papers the
next day, but delivered them to his insurance agent the following day,
November 23, 1971. By this time the default judgment had been
entered.
The actions of Ward in searching for the papers and in promptly
taking the papers to the insurance agent on their discovery constitute
some corroborating evidence of Ward's contention that he had not
been served.
488 S.W.2d at 737. Though this evidence was indirect, the court nonetheless found
it sufficient to corroborate denial of service.
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Elisabeth’s testimony about the value of the Brazoria County property and
the Kosters’ successful use of it as collateral is further circumstantial evidence
corroborating her denial of service. In Sanders v. Harder, 148 Tex. 593, 227
S.W.2d 206 (1950), the Supreme Court of Texas found the following facts to be
corroborative of the bill-of-review plaintiff’s denial of service:
An examination of the record has convinced us that there are
corroborating circumstances in this case. Jim Sanders bought this
property in 1925 and moved upon it in 1926. He married Jessie
Sanders in 1933, and the property has been occupied by them as a
homestead since that date. It would be most unnatural for a husband
and wife to ignore a suit which would take their homestead from
them. After the default judgment was rendered in 1941 their
possession was not disturbed until a writ of scire facias was served
upon them in this case approximately seven years later. That unusual
delay unexplained lends some support to petitioners’ testimony. Jim
Sanders testified that he made improvements on the property after
1941. . . . Other circumstances are relied upon by petitioners, but we
think that those mentioned, while not as strong as might be desired, do
constitute some competent evidence corroborating the testimony of
the petitioners.
148 Tex. at 597–98, 227 S.W.2d at 209. Although the default judgment obtained
by Cadleway did not concern title to the property ultimately seized in satisfaction
of the judgment, which real estate was not appellants’ homestead, the evidence that
a bank was willing to lend the Kosters money secured by property subject to
execution under an unsatisfied judgment, and the fact that the two stood to lose a
building with a value of $900,000 by not paying a default judgment of $11,295, is
evidence that they lacked an awareness of the judgment against them. As in
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Sanders, there was a delay of many years between entry of the judgment and an
attempt to enforce it by seizure of the plaintiff’s property. To echo the Supreme
Court, it would be most unnatural for two people to ignore a judgment that could
take such a valuable property from them.
In both Ward and Sanders, the Supreme Court allowed corroborating
evidence to take the form of the parties’ testimony about their own behavior,
including their own inaction, if that behavior could be seen as inconsistent with
service and awareness of the proceedings against them. See Ward, 488 S.W.2d at
737; Sanders, 148 Tex. at 597–98, 227 S.W.2d at 209. Elisabeth’s statements in
her affidavit about the value of the property and its use as collateral are likewise
testimony as to behavior that could be regarded as inconsistent with service.
Considering the evidence corroborating the other denials of service, the fact
that Herman and Elisabeth were purportedly served at the same time and place, and
the evidence presented of behavior inconsistent with awareness of the judgment,
we conclude that Elisabeth corroborated her denial with supporting evidence of
independent acts and circumstances.
In its motion for summary judgment, Cadleway did not contend that the
evidence it presented that the appellants were served, such as Wheeler’s new
affidavit and the records from the security booth, conclusively established service.
Rather, it argued that the appellants had offered nothing more than bare denials of
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service, which denials were inadequate to the altered standard of proof required to
controvert affidavits of service. Since each of the appellants produced evidence
corroborating the denial of service, evidence that created a genuine issue of
material fact on the subject of service under the corroboration requirement for a
bill of review, the trial court should not have granted summary judgment for
Cadleway. We sustain the appellants’ first issue.
II. Seaprints and Kosters’ motion for summary judgment
In their second issue, the appellants argue that the trial court should have
granted their motion for summary judgment because the judgment nunc pro tunc
against them was entered after the trial court’s plenary power had expired, it was
correcting a judicial error, and it was therefore void. Crucially, however, the
appellants do not argue in their brief, and they did not argue in their motion for
summary judgment, that they conclusively established the elements of a bill of
review. Whether a plaintiff is entitled to employ a bill of review is a necessary
predicate that must be established if the validity of the judgment attacked is to be
ruled upon. See Caldwell, 154 S.W.3d at 97–98 (clarifying procedures to be used
when a plaintiff files a bill of review); Baker v. Goldsmith, 582 S.W.2d 404, 409
(Tex. 1979) (same). Therefore, regardless of the merits of the argument that the
judgment was inappropriately amended nunc pro tunc to correct a judicial error, it
would be precipitate for a court to enter summary judgment in their favor when
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they still have not established the elements of a bill of review. Appellants’ second
issue is overruled.
Conclusion
We reverse the judgment of the trial court and remand the case for further
proceedings consistent with this opinion.
Michael Massengale
Justice
Panel consists of Chief Justice Radack, Justice Massengale, and Justice Huddle.
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