Sandra Maribel Arroyo v. Cristo Rey Garza ( 2018 )

NUMBER 13-16-00633-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SANDRA MARIBEL ARROYO, Appellant,
v.
CRISTO REY GARZA, Appellee.
On appeal from the 370th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Sandra Maribel Arroyo appeals from an order granting summary
judgment against her. By one issue, she argues that the lower court erred in granting
summary judgment against her because she had satisfied the requirements for a bill of
review. We affirm.
I. BACKGROUND
Appellee Cristo Rey Garza filed suit against appellant in July 2013, alleging that
two properties in appellant’s name actually belonged to him. Appellee claimed that he
put the titles to the two properties in appellant’s name “for the sole purpose of
convenience,” and that appellant agreed to transfer the two parcels back to him on
demand. Appellee sought a trust over the first parcel and a constructive trust over the
proceeds from the second, which appellant had sold.
Appellant appeared pro se and filed a general denial in August 2013. In her
general denial, appellant indicated that her mailing address was “15200 N. Moorefield
Road, Mission, Texas, 78574.” All subsequent correspondence was mailed to her listed
address.
Appellee filed a motion for summary judgment, and two notices were mailed to
appellant’s N. Moorefield Road address as listed: first, a notice of the original deadline
for her response, and next, an amended deadline notice. Appellant failed to respond to
either and the trial court granted appellee’s motion for summary judgment on December
22, 2014. Notice of the judgment was mailed to the N. Moorefield Road address as
provided by appellant on February 2, 2015.
After receiving notice to vacate, appellant filed a restricted appeal claiming that
she had received notice too late to file post-judgment motions, and this Court affirmed the
trial court’s summary judgment. See Arroyo v. Garza, No.13-15-00211-CV, 2015 WL
9487259 (Tex. App.—Corpus Christi Dec. 29, 2015, no pet.) (mem. op.). Appellant then
filed a petition for bill of review in the trial court seeking to set aside the November 2015
judgment. Appellee again filed for summary judgment on May 16, 2016, arguing that
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appellant had not exercised due diligence in pursuing all adequate legal remedies against
a final judgment, and the trial court granted his motion. This appeal followed.
II. DISCUSSION
Appellant argues that the trial court erred in granting appellee’s motion for
summary judgment because appellee did not establish an absence of issues of material
fact and that he was entitled to a judgment as a matter of law. See TEX. R. APP. P.
166a(c).
A. Law of the Case and Entitlement to Bill of Review Relief
Appellee argues that because we have already made a decision in this case, the
law of the case doctrine applies. Appellant argues that the law of the case doctrine is
inapplicable because the initial decision contained serious errors.
1. Applicable Law
Under the law of the case doctrine, a court of appeals is ordinarily bound by its
initial decision if there is a subsequent appeal in the same case. Briscoe v. Goodmark
Corp., 102 S.W.3d 714, 716 (Tex. 2003). An appellate court’s decision is final both for
matters already litigated and any other matters the parties might have litigated. Medina
v. Benkiser, 317 S.W.3d 296, 299 (Tex. App.—Houston [1st Dist.] 2009, no pet.). This
final decision is deemed the law of the case unless it is clearly erroneous. Cessna Aircraft
Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 150 (Tex. App.—Dallas 2011, no pet.).
Bill of review relief is only available if a party has exercised due diligence in
pursuing all adequate legal remedies against a judgment. Wembley Inv. Co. v. Herrera,
11 S.W.3d 924, 927 (Tex. 1999).
2. Analysis
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Appellant argues that our initial decision on whether appellant received notice too
late to file post-judgment motions was “clearly erroneous” because the timeline for notice
provided by appellant on initial appeal was incorrect. Specifically, she claims that the
conclusion that she had sufficient time to move to extend post-judgment deadlines was
erroneous because she did not actually receive notice of the judgment within forty-two
days after judgment was rendered. However, this is not an error in application of law by
this court. In appellant’s previous appeal, we held that “Arroyo does not explain why
receiving notice earlier than ninety-one days after the court signed the judgment is
reversible error when she did not attempt to extend the timelines through the procedure
provided by Rule 306a(4)” and, as a result, that she failed to establish error on the face
of the record. See Arroyo, No. 13-15-00211-CV, 2015 WL 9487259 at *3. The claim that
she received notice within ninety-one days of judgment was made by appellant in her
brief and is not a conclusion of this court. Our conclusion that appellant failed to avail
herself of legal remedies is not “clearly erroneous” when appellant claimed in her earlier
appeal that notice was received within forty-two days after the judgment. Because the
decision was not clearly erroneous, the law of the case applies. Cessna, 345 S.W.3d at
150.
Furthermore, appellant did not raise the issue of notice in her restricted appeal. In
a restricted appeal, only errors that are apparent on the face of the record can be raised.
See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Lack of notice
could have been found to be apparent on the face of the record because the record
included a Rule 306a notice letter which indicated that it was unclaimed and returned to
sender. See TEX. R. CIV. P. 306(a). However, because appellant did not raise the issue
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of lack of notice in the restricted appeal, this court did not address it and therefore, the
decision on this issue is final. See Medina, 317 S.W.3d at 299. Because the law of the
case applies, that issue is waived and cannot now be raised in her bill of review. See id.
Therefore, as we held previously, it remains “undisputed that [appellant] did not attempt
to take advantage of the procedure for extending the post-judgment timelines.” Arroyo,
2015 WL 9487259 at *3. Consequently, it is undisputed that Arroyo did not exhaust all
adequate legal remedies, and appellant is not entitled to seek relief by bill of review. See
Narvaez v. Maldonado, 127 S.W.3d 313, 321 (Tex. App.—Austin 2004, no pet.) (holding
that the “due diligence requirement is distinct from the three bill of review elements, for
the complainant must allege and prove that he exercised due diligence in pursuing all
adequate legal remedies to the challenged judgment or show good cause for failing to
exhaust those remedies in order to be entitled to seek bill of review relief”).
B. Bill of Review
1. Standard of Review and Applicable Law
We review a trial court’s granting of a summary judgment motion de novo. Buck
v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). Ordinarily, in seeking a bill of review, a
party must prove: (1) a meritorious defense to the underlying cause of action; (2) that
they were prevented from making the defense by fraud, accident, or wrongful act by the
opposing party, or by official mistake; and (3) that judgment was unmixed with any fault
or negligence of their own. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). However,
plaintiffs claiming non-service, must only prove that judgment was not mixed with the
plaintiff’s own negligence. See id. at 97. Parties have a responsibility to keep the court
informed of their correct addresses. TEX. CIV. PRAC. & REM. CODE ANN. § 30.015(a) (West,
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Westlaw through 2017 1st C.S.); see Withrow v. Schou, 13 S.W.3d 37, 41 (Tex. App.—
Houston [14th Dist.] 1999, pet. denied). Only notice reasonably calculated under the
circumstances is required for due process, and actual notice is not required. See
Withrow, 13 S.W.3d at 40–41 (notice satisfied when clerk sent notice to counsel’s last
known address). Failure to exercise reasonable care in providing an address is
negligence and will bar relief by bill of review. Saint v. Bledsoe, 416 S.W.3d 98, 112 (Tex.
App.—Texarkana 2013, no pet.); see also Montalvo v. Vela, No. 13-14-00166-CV, 2016
WL 192063, at *4 (Tex. App.—Corpus Christi Jan. 14, 2016, no pet.) (mem. op.).
2. Analysis
Appellant contends that the first two requirements of a bill of review are not
applicable to her case. In cases of non-service due process relieves a bill of review
plaintiff from proving a meritorious defense when a mistake or wrongful act prevented
them from asserting this defense. See Caldwell, 154 S.W.3d at 96–97. Because we
need not address the first two requirements, we turn to the final requirement: whether
the judgment was unmixed with appellant’s negligence.
Appellant does not argue that she did not receive notice because the address
notice was mailed to was incorrect; in fact, she argues it was correct. Instead, she argues
that she did not receive notice because the court’s clerk failed to try other addresses after
notice was returned unclaimed. However, actual notice is not required, and the clerk
satisfied the requirement for notice upon sending notice to appellant’s most recent
address. See Withrow, 13 S.W.3d at 40. In his May 2016 motion for summary judgment,
appellee explains that after a request by him to confirm the address given by appellant,
the United States Postal Service informed appellee, in a “Change of Address or Boxholder
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Request Format – Process Servers” form, that the “15200 N. Moorefield Road” address
provided by appellant does not exist. Appellant providing an incorrect address to the
court and never correcting it constitutes negligence so as to bar relief by bill of review.
See Bledsoe, 416 S.W.3d at 112. Appellant did not receive actual notice of the judgment
because she negligently provided an incorrect address to the court. As a result, appellant
has negligently contributed to her nonservice and has not satisfied the sole requirement
for a bill of review alleging non-service. See Caldwell, 154 S.W.3d at 96. Because
appellant failed to satisfy the requirements for a bill of review, appellee was entitled to
judgment as a matter of law.
In summary, we conclude that appellant is not entitled to seek bill of review relief
because she did not exhaust all adequate remedies available. See Narvaez, 127 S.W.3d
at 321. However, even assuming that she was entitled to bill of review relief, there is no
genuine issue of fact concerning her partial negligence. See Bledsoe, 416 S.W.3d at
112. Therefore, the trial court did not err in granting appellee’s motion for summary
judgment.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Delivered and filed the
26th day of July, 2018.
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