Gary Mixon v. Greg Nelson, as Principal of Madex Capital, L.L.C. Nick DeFilippis, as Principal of Blue Star Capital Group, L.L.P. Michael Morini And Norman R. Zukis ( 2015 )

ACCEPTED
03-15-00287-CV
6384031
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/6/2015 11:48:43 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00287-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 8/6/2015 11:48:43 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
GARY MIXON,
Appellant,
v.
GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK
DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP;
MICHAEL MORINI, AND NORMAN R. ZUKIS,
Appellees.
ON APPEAL FROM THE 345TH DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
BRIEF OF APPELLANT
Jack E. Skaggs – 24051345
Scott W. Weatherford – 24079554
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone (512) 236-2000
Facsimile (512) 236-2002
E-mail: jskaggs@jw.com
E-mail: sweatherford@jw.com
ATTORNEYS FOR APPELLANT
GARY MIXON
i
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties before the trial court and the
names and addresses of all trial counsel and appellate counsel:
1. Petitioner in the trial court (Appellant in this Court) and counsel:
Gary Mixon
Represented by:
Jack E. Skaggs (Lead Attorney)
State Bar No. 24051345
jskaggs@jw.com
Scott W. Weatherford
State Bar No. 24079554
sweatherford@jw.com
JACKSON WALKER L.L.P.
100 Congress Ave., Suite 1100
Austin, Texas 78701
512-236-2000 (telephone)
512-236-2002 (facsimile)
2. Respondents in the trial court (Appellees in this Court) and counsel:
Greg Nelson, as principal of Madex Capital, L.L.C.
Nick DeFilippis, as principal of Blue Star Capital Group, L.L.P.
Michael Morini
Norman R. Zukis
Represented by:
Mark R. McLean (Lead Attorney) Jeff Meyerson
State Bar No. 24062882 State Bar No. 00788051
mrm@mlpcfirm.com JeffM@Meyersonfirm.com
MCLEAN LAW P.C. MEYERSON LAW FIRM
408 W. 11th St., Suite 500 2224 Walsh Tarlton Lane, Suite 1220
Austin, Texas 78701 Austin, Texas 78746
512-222-5641(telephone) 512-330-9001 (telephone)
512-857-1282 (facsimile) 512-330-9005 (facsimile)
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... II
TABLE OF CONTENTS .........................................................................................III
TABLE OF AUTHORITIES .................................................................................. IV
BRIEF OF APPELLANT ..........................................................................................1
STATEMENT OF THE CASE ..................................................................................2
RECORD AND APPENDIX REFERENCES ...........................................................3
STATEMENT OF ORAL ARGUMENT ..................................................................4
ISSUES PRESENTED FOR REVIEW .....................................................................5
STATEMENT OF FACTS ........................................................................................6
SUMMARY OF THE ARGUMENT ........................................................................9
STANDARD OF REVIEW .....................................................................................10
ARGUMENTS & AUTHORITIES .........................................................................11
I. Mixon presented more than a scintilla of corroborated evidence to
Create a fact Issue. ..................................................................................... 11
A. A bill of review based on defective service requires only proof
that the petitioner was never served with process. ..............................11
B. Mixon has produced more than a scintilla of evidence that he
was never served with process. ...........................................................13
II. Appellees failed to establish their entitlement to attorneys’ fees. ............. 15
CONCLUSION ........................................................................................................18
PRAYER ..................................................................................................................19
CERTIFICATE OF SERVICE ................................................................................20
CERTIFICATE OF COMPLIANCE .......................................................................20
APPENDIX ..............................................................................................................21
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Bakali v. Bakali,
830 S.W.2d 251 (Tex. App.¬—Dallas 1992, no writ) ...............................................16
Broderick v. Kaye Bassman Int’l Corp.,
333 S.W.3d 895 (Tex. App.—Dallas 2011, no pet.) ..................................................18
Caldwell v. Barnes,
975 S.W.2d 535 (Tex. 1998) ................................................................................11, 12, 17
Gulf States Util. Co. v. Low,
79 S.W.3d 561 (Tex. 2002) ..............................................................................................16
Hamilton v. Wilson,
249 S.W.3d 425 (Tex. 2008) (per curiam) ....................................................................11
King Ranch, Inc. v. Chapman,
118 S.W.3d 742 (Tex. 2003) ............................................................................................10
Langdon v. Gilbert,
No. 0-14-00491-CV, 2014 Tex. App. LEXIS 13880 (Tex. App.—Austin
Dec. 31, 2014, no pet.) .......................................................................................................13
Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572 (Tex. 2006) ............................................................................................10
Meece v. Moerbe,
631 S.W.2d 729 (Tex. 1982) ......................................................................................16, 17
Mowbray v. Avery,
76 S.W.3d 663 (Tex. App.—Corpus Christi 2003, pet. denied) .............................12
Peralta v. Heights Med. Ctr., Inc.,
485 U.S. 80 (1988)..............................................................................................................12
Polansky v. Berenji,
393 S.W.3d 362 (Tex. App.—Austin 2012, no pet.) .................................................18
Reynosa v. Huff,
21 S.W.3d 510 (Tex. App.—San Antonio 2000, no pet.) .........................................10
iv
Smith v. O’Donnell,
288 S.W.3d 417 (Tex. 2009) ............................................................................................10
Sung Man Min v. Avila,
991 S.W.2d 495 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ..........................13
Timpte Indus., Inc. v. Gish,
286 S.W.3d 306 (Tex. 2009) ............................................................................................10
Travelers Indem. Co. of Conn. v. Mayfield,
923 S.W.2d 590 (Tex. 1996) ............................................................................................11
Unifund CCR Partners v. Villa,
299 S.W.3d 92 (Tex. 2009) (per curiam) ......................................................................11
Wembley Inv. Co. v. Herrera,
11 S.W.3d 924 (Tex. 1999) ..............................................................................................11
OTHER AUTHORITIES
TEX. R. CIV. P. 166a(i) .............................................................................................................10
v
NO. 03-15-00287-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
GARY MIXON,
Appellant,
v.
GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK
DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP;
MICHAEL MORINI, AND NORMAN R. ZUKIS,
Appellees.
ON APPEAL FROM THE 345TH DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
BRIEF OF APPELLANT
Gary Mixon, Appellant herein and Petitioner before the trial court below,
submits this brief in this appeal of the trial court’s order granting a no-evidence
motion for summary judgment in favor of Appellees herein and Respondents
before the trial court below, and would respectfully show as follows:
1
STATEMENT OF THE CASE
Nature of the Case: Appellant Gary Mixon (“Appellant” or “Mixon”)
filed a Petition for Bill of Review against Greg
Nelson, as principal of Madex Capital, L.L.C.,
Nick DeFilippis, as principal of Blue Star Capital
Group, L.L.P., Michael Morini, and Norman R.
Zukis (“Appellees”) after Appellees obtained a
default judgment against Appellant that included
an award of $200,000 in economic damages and
$400,000 in punitive damages. (CR 36–37).
Appellant filed the Petition for Bill of Review
because Appellees failed to properly effect service
in the underlying lawsuit. (CR 3–44).
Parties: Appellant is Gary Mixon.
Appellees are Greg Nelson, as principal of Madex
Capital, L.L.C., Nick DeFilippis, as principal of
Blue Star Capital Group, L.L.P., Michael Morini,
and Norman R. Zukis.
Course of proceedings: Appellees filed their No-Evidence Motion for
Summary Judgment on March 10, 2015 (CR 79–
118).
Trial Court: 345th Judicial District Court, Travis County,
Texas, Cause No. D-1-GN-14-004368
Trial court disposition: The trial court (The Honorable Gisela D. Triana
presiding) granted Appellees’ No-Evidence
Motion for Summary Judgment and dismissed
Appellant’s Petition for Bill of Review on April
24, 2015. (CR 161–62) (Tab A).
2
RECORD AND APPENDIX REFERENCES
CR Clerk’s Record
Citation to documents included in the Appendix will be noted by “(Tab
[Letter])” next to the Clerk’s Record citation.
3
STATEMENT OF ORAL ARGUMENT
Because the issues are clear, Appellant believes oral argument will not
materially aid the Court’s resolution of this appeal.
4
ISSUES PRESENTED FOR REVIEW
Issue No. 1: Appellant offered more than a scintilla of evidence to create a
fact issue regarding whether he received service of process in the Underlying
Lawsuit.
Issue No. 2: Appellees failed to establish a statutory or contractual basis
demonstrating their entitlement to an award of attorneys’ fees.
5
STATEMENT OF FACTS
Appellees filed a lawsuit against Mixon and five other defendants alleging
fraud, negligent misrepresentation, violation of the Texas State Securities Act,
gross negligence, breach of contract, and breach of fiduciary duty (the “Underlying
Lawsuit”). (CR 12–33). In their Original Petition, Appellees represented that
Mixon resided at 35 Persimmon in Boerne, Texas. (CR 15). However, Mixon
moved from that address prior to the filing of the Underlying Lawsuit. (CR 39).
After several failed attempts at service, Mixon first became aware of the
Underlying Lawsuit in September 2013 when Appellees served a subpoena on
Mixon’s ex-wife, Linda Komperda. (CR 128). Appellees issued the subpoena to
confirm the correct address for Mixon. (CR 109). At a hearing on November 1,
2013, Ms. Komperda testified that she lived with Mixon at 116 Cave Circle in
Boerne, Texas, and the trial court issued an order for substitute service at that
address. (CR 105). Specifically, the trial court ordered substitute service by
“posting a true and correct copy of the citation and the attached petition on the
front door [at] 116 Cave Circle, Boerne, Texas 78006.” Id.
According to his affidavit, process server Margarito Vasquez accomplished
service the next day by posting a copy of the citation and original petition “to the
front door of the property of Gary Mixon . . . at the address of 116 Cave Circle.”
(CR 114). However, Mixon never received the citation or original petition
6
purportedly attached to his front door, so he called the clerk of the Travis County
District Court to inquire whether their records showed that he had been served.
(CR 133, 143). On that call, the clerk told Mixon that he had not been served.
(CR 143–144).
Later that month, Mixon moved from the house located at 116 Cave Circle
to a different location in Boerne, Texas. (CR 144). At no point in time during the
month of November did Mixon receive service of citation in the Underlying
Lawsuit. (CR 144.).
The next month, Appellees filed a Motion for Default Judgment against
Mixon. (CR 7). Appellees did not even attempt to serve Mixon with this motion.
(CR 7–8). Moreover, the Certificate of Last Known Address filed by Appellees
identified the incorrect address for Mixon. (CR 8). Accordingly, Mixon did not
receive notice of the Motion for Default Judgment or notice of the hearing. (CR
144).
The Court entered a default judgment against Mixon on January 17, 2014.
(CR 36–37). The Court awarded Appellees $400,000 in punitive damages and
$200,000 in economic damages. Id. Mixon did not immediately receive notice of
the default judgment because all notices were sent to Mixon’s previous addresses.
(CR 140–141). Instead, Appellees deliberately waited until 30 days after the entry
of the default judgment to attempt to serve Mixon with notice of the default
7
judgment. (CR 121). However, Appellees once again served Mixon at the wrong
address. (CR 121).
Mixon first learned of the purported service of citation and default judgment
in June 2014, over 7 months after the alleged date of service. (CR 144).
8
SUMMARY OF THE ARGUMENT
The trial court erred in granting Appellees’ No-Evidence Motion for
Summary Judgment and awarding Appellees their attorneys’ fees incurred in
defending the Petition for Bill of Review.
First, Appellees’ No-Evidence Motion for Summary Judgment fails because
Mixon presented more than a scintilla of corroborated evidence to support the fact
that Appellees failed to effect proper service in the Underlying Lawsuit.
Second, Appellees failed to identify any statutory or contractual authority to
establish their entitlement to attorneys’ fees incurred in defending a Petition for
Bill of Review based on lack of proper service.
9
STANDARD OF REVIEW
A party may move for summary judgment on the ground that no evidence
exists of one or more essential elements of a claim on which the adverse party
bears the burden of proof at trial. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v.
Gish, 286 S.W.3d 306, 310 (Tex. 2009). Once the motion is filed, the burden
shifts to the nonmovant to produce evidence raising a genuine issue of material fact
on the elements specified in the motion. TEX. R. CIV. P. 166a(i); Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the respondent brings forth more
than a scintilla of probative evidence to raise a genuine issue of material fact,
summary judgment is improper. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003). More than a scintilla of evidence exists when the evidence “rises
to a level that would enable reasonable and fair-minded people to differ in their
conclusions.” Id.; Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.—San Antonio
2000, no pet.).
The Court must “review the evidence in the light most favorable to the
respondent against whom the summary judgment was rendered . . . . If the
respondent brings forth more than a scintilla of probative evidence to raise a
genuine issue of material fact, a no-evidence summary judgment cannot properly
be granted.” Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (citations
omitted). “That is, a no-evidence summary judgment should be reversed if the
10
evidence is sufficient for reasonable and fair-minded jurors to differ in their
conclusions.” See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per
curiam).
With respect to an award of attorneys’ fees, this Court must review for abuse
of discretion. See Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593
(Tex. 1996) (orig. proceeding). A trial court abuses its discretion if its decision is
arbitrary, unreasonable, and without reference to guiding principles, or if it rules
without supporting evidence. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97
(Tex. 2009) (per curiam). A court will review the record to determine whether the
trial court followed guiding rules and principles. Id.
ARGUMENTS & AUTHORITIES
I. MIXON PRESENTED MORE THAN A SCINTILLA OF CORROBORATED
EVIDENCE TO CREATE A FACT ISSUE.
A. A bill of review based on defective service requires only proof that
the petitioner was never served with process.
A bill of review is an independent equitable action brought by a party to a
previous suit who seeks to set aside a judgment that is no longer subject to a
motion for new trial or appealable. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924,
926–27 (Tex. 1999); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).
Traditionally, to state a claim for a bill of review, a petitioner must allege: (1) a
meritorious defense to the cause of action supporting the judgment; (2) that the
petitioner was prevented from making by the fraud, accident, or wrongful act of the
11
opposing party; and (3) that is unmixed with any fault or negligence by the
petitioner. Mowbray v. Avery, 76 S.W.3d 663, 682 (Tex. App.—Corpus Christi
2003, pet. denied).
However, when a petitioner seeks a bill of review based solely on a claim of
lack of proper service, the petitioner need not show the first two of these
requirements. This exception arises as a matter of constitutional law, because
notice of the lawsuit and the judgment is an essential ingredient of due process. A
judgment is vulnerable to attack if a party obtained it in the absence of
constitutionally mandated notice, even if the defendant lacks a meritorious defense.
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988); Caldwell, 975 S.W.2d
at 537.
When a petitioner seeks a bill of review based on a claim of lack of proper
service, he or she may conclusively establish the absence of fault or negligence by
proving that he or she was never served with process. Caldwell, 975 S.W.2d at
537. An individual who is not served cannot be at fault or negligent in allowing a
court to render a default judgment. See id. Even if the individual becomes aware
of the proceedings before the court renders judgment, he or she has no duty to
participate in them without proper service of process and is, therefore, not at fault
for failing to answer. Id.
12
B. Mixon has produced more than a scintilla of evidence that he was
never served with process.
At the summary judgment stage, a petitioner’s own testimony is “some
evidence of defective service of process.” See Sung Man Min v. Avila, 991 S.W.2d
495, 502 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that evidence
derived solely from the petitioner was “not only sufficient to defeat [Respondent’s]
prima facie case, as established by the [citation] recitals, and thus place the issue of
the service before the jury, but also sufficient to support the jury’s finding of no
service.”); see also Langdon v. Gilbert, No. 0-14-00491-CV, 2014 Tex. App.
LEXIS 13880, at *7 (Tex. App.—Austin Dec. 31, 2014, no pet.) (holding that the
petitioner’s own affidavit was “some evidence of defective service of process”). In
Langdon, the petitioner filed a bill of review to set aside a default judgment on the
basis of defective service of process. 2014 Tex. App. LEXIS 13880, at *3. In
cross motions for summary judgment, the petitioner submitted his own affidavit in
which he averred that he did not receive service of process. Id. at *7. The trial
court granted the respondent’s motion for summary judgment, but the Austin Court
of Appeals reversed because the petitioner’s “bare assertion” that he was not
served “is inadequate to carry his burden of proof, but it is some evidence of
defective service of process.” Id. (internal citations omitted).
Here, Mixon’s affidavit and deposition testimony, despite being “bare
assertions” that he was never served, constitute “some evidence” that defeats
13
summary judgment. Specifically, Mixon produced evidence that he never received
the citation purportedly attached to his front door. For example, Mixon testified in
his deposition that he “was never served.” (CR 131). Mixon would not have
called the Travis County Clerk on November 6, 2013 asking if he had been served
if he had actually been served on November 2 as alleged. (CR 131–35, 143).
During his deposition, Mixon maintained that the best evidence of defective
service is the fact that he never received the citation:
Q. Are you stating affirmatively that Mr. Vasquez did
not post the Citation of Petition on your door
November 2nd?
A. I am saying that I have not received securely the
citation.
Q. But you are not testifying he did not post the copy
of the citation and petition on your door November
2, 2013?
A. I did not receive the citation.
(CR 131–35, 144). Accordingly, Mixon’s own testimony constitutes more than a
scintilla of evidence that, although insufficient to carry his burden at trial, is
certainly enough to place the issue before a jury.
Additionally, Mixon’s testimony is further supported by additional
circumstantial evidence that Mixon never received any items allegedly left by the
process server, Mr. Vasquez. For example, Mr. Vasquez’s affidavit of non-service
indicates that he left a “call back card” on August 28, 2013. (CR 139). However,
14
Mixon testified that he never received the call back card. (CR 129–30). This
constitutes more evidence to contradict Mr. Vasquez’s affidavit of service given
the fact that Mixon never received the citation. (CR 132) (“I do not question [Mr.
Vasquez’s] statement other than the fact that I did not receive the citation and the
petition.”).
Ms. Komperda’s declaration also corroborates Mixon’s testimony that he
never received the citation and Petition in the Underlying Lawsuit. Ms. Komperda,
who lived with Mixon at the time of the alleged service, stated that she never
received or saw a copy of the Petition and citation purportedly attached to the front
door. (CR 145).
Taken together, Mixon’s testimony, Ms. Komperda’s declaration, and the
contradiction of the process server’s affidavits constitute more than a scintilla of
evidence that service was defective in the Underlying Lawsuit. Considering this
evidence in the light most favorable to Mixon, it is certainly possible that the
process server failed to execute service consistent with the order of substitute
service. Accordingly, the trial court erred by granting Appellees’ no evidence
motion for summary judgment.
II. APPELLEES FAILED TO ESTABLISH THEIR ENTITLEMENT TO ATTORNEYS’
FEES.
In their No-Evidence Motion for Summary Judgment, Appellees summarily
declared that they “are also entitled to an award of attorney’s fees and costs.” (CR
15
86). At the hearing on the motion, the trial court allowed Mixon to submit a Bench
Brief in opposition to Appellees demand for attorneys’ fees. (CR 157–160). After
consideration of the brief, the trial court granted Appellees claim for attorneys’
fees. (CR 161–62) (Tab A).
The law is clear that a prevailing party may recover attorneys’ fees from the
opposing party only if the recovery of fees is provided for by statute or contract.
Gulf States Util. Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002). There is no statute
that provides for the recovery of attorneys’ fees for the prevailing party in a bill of
review proceeding. As such, courts have held that a party who successfully
defends a bill of review is entitled to recover attorneys’ fees only if such fees are
authorized for the underlying case. See Bakali v. Bakali, 830 S.W.2d 251, 257
(Tex. App.—Dallas 1992, no writ).
In Meece v. Moerbe, the Texas Supreme Court analyzed the policy behind
this rule. 631 S.W.2d 729 (Tex. 1982). In Meece, the trial court awarded the
respondent attorneys’ fees for successfully defending the petitioner’s bill of
review. Id. at 730. The court of appeals reversed, holding that the respondent was
not entitled to fees because defense of a bill of review was not the same as
establishing an affirmative cause of action under a statute that allows recovery of
attorneys’ fees. Id. The Texas Supreme Court disagreed, noting the following:
[T]he purpose of the [statute allowing recovery of
attorneys’ fees] is to authorize attorneys’ fees for the
16
successful prosecution of a . . . claim to final judgment.
While the bill of review is an equitable action, separate
from the original suit, [the respondent] had the burden of
proving his original cause of action.
Id. (emphasis added). Accordingly, the Texas Supreme Court held that because the
respondent successfully prevented the petitioner from establishing a meritorious
defense (a necessary element of his bill of review claim), the respondent had in
essence proved his underlying cause of action and was entitled to an award of
attorneys’ fees.
The Texas Supreme Court’s opinion in Meece leads to the logical conclusion
that when a bill of review petitioner does not have to prove a meritorious defense,
and the respondent therefore does not have the burden to prove the original cause
of action, the defending party is not entitled to attorneys’ fees. Here, it is
undisputed that Mixon did not have to prove a meritorious defense as an element
of his bill of review. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998)
(noting that a bill of review based on failure of service dispenses with the
requirement to prove a meritorious defense). As such, Appellees never carried the
burden to prove the underlying cause of action that would entitle them to attorneys’
fees.
Instead, Appellees rely on a single case from the Dallas Court of Appeals to
support their claim for attorneys’ fees. Yet that case, just like Meece, involved a
bill of review where the respondent negated the petitioner’s meritorious defense.
17
See Broderick v. Kaye Bassman Int’l Corp., 333 S.W.3d 895, 898 (Tex. App.—
Dallas 2011, no pet.). Despite having the burden to do so, Appellees have not
identified any legal authorities that allow for the recovery of attorneys’ fees by the
defending party in a bill of review where the petitioner does not have to prove—
and the responding does not have to negate—a meritorious defense to the
underlying cause of action. Accordingly the trial court abused its discretion in
granting Appellees’ request for attorneys’ fees. See Polansky v. Berenji, 393
S.W.3d 362, 368 (Tex. App.—Austin 2012, no pet.) (holding that the trial court
abused its discretion in awarding attorneys’ fees “without a statutory or contractual
basis to do so.”).
CONCLUSION
Mixon alleges that he was denied service of process—a fundamental right
guaranteed by the Constitution. The trial court, by refusing to acknowledge the
fact issues raised by Mixon, effectively deprived Mixon of that right. Moreover,
the trial court erred by awarding attorneys’ fees to Appellees not for proving their
underlying cause of action, but instead for simply filing a no-evidence motion for
summary judgment. Accordingly, the trial court’s orders should be reversed and
this case should be remanded for further proceedings.
18
PRAYER
Appellant Gary Mixon respectfully requests that this Court reverse the trial
court’s order granting Appellee’ No-Evidence Motion for Summary Judgment and
request for attorneys’ fees and remand this cause to the trial court. Appellant also
respectfully requests such further relief, general or special, to which he may be
justly entitled.
DATED and FILED this 6th day of August, 2015.
Respectfully submitted,
JACKSON WALKER L.L.P.
By: /s/ Jack E. Skaggs
Jack E. Skaggs - 24051345
Scott W. Weatherford – 24079554
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone (512) 236-2000
Facsimile (512) 236-2002
E-mail: jskaggs@jw.com
E-mail: sweatherford@jw.com
ATTORNEYS FOR APPELLANT GARY
MIXON
19
CERTIFICATE OF SERVICE
I hereby certify that, on the 6th day of August 2015, a true and correct copy
of the foregoing was served on all counsel of record listed below in accordance
with Rule 9.5(c) of the Texas Rules of Appellate Procedure via electronic filing
and electronic mail:
Mark R. McLean (Lead Attorney) Jeff Meyerson
State Bar No. 24062882 State Bar No. 00788051
mrm@mlpcfirm.com JeffM@Meyersonfirm.com
MCLEAN LAW P.C. MEYERSON LAW FIRM
408 W. 11th St., Suite 500 2224 Walsh Tarlton Lane, Suite 1220
Austin, Texas 78701 Austin, Texas 78746
512-222-5641(telephone) 512-330-9001 (telephone)
512-857-1282 (facsimile) 512-330-9005 (facsimile)
/s/ Jack E. Skaggs
Jack E. Skaggs
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
because, exclusive of the matters excepted from the word count limitations of the
Rule, this brief contains 2,826 words.
/s/ Jack E. Skaggs
Jack E. Skaggs
20
NO. 03-15-00287-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
GARY MIXON,
Appellant,
v.
GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK
DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP;
MICHAEL MORINI, AND NORMAN R. ZUKIS,
Appellees.
ON APPEAL FROM THE 345TH DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
APPENDIX
Tab A Order Granting No-Evidence Motion for Summary Judgment
21
Tab A
CAUSE No. D-1-GN-14-004368
GARY MIXON, § IN THE DISTRICT COURT OF
§
Petitioner/Judgment Debtor, §
§
V. §
§
GREG NELSON, as principal ofMADEX § TRAVIS COUNTY, TEXAS
CAPITAL, LLC; NICK DEFILIPPIS, as §
principal of BLUE STAR CAPITAL §
GROUP, LLC; MICHAEL MORINI; and §
NORMAN R. ZUKIS, §
§
Respondents/Judgment Creditors. § 345th JUDICIAL DISTRICT
ORDER GRANTING NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
On April 9, 2015, the Court considered and took under advisement
Respondents/Judgment Creditors' No-Evidence Motion for Summary Judgment in the above-
styled case. After considering the motion, the response, the reply, the admissible summary
judgment evidence, and the applicable law, the Court GRANTS the motion in its entirety,
including the claim for attorney's fees in the amount of $6,120.00 and costs of $300.49.
Petitioner/Judgment Debtor Gary Mixon's Bill of Review proceeding under Cause No.
D-1-GN-14-004368 is DISMISSED WITH PREJUDICE to the refiling of the same.
JUDGME~T is hereby entered that Petitioner/Judgment Debtor Gary Mixon shall take nothing
by way of his bill of review and that Respondents/Judgment Creditors are awarded attorney's
fees and costs outlined above.
This is a final and appealable JUDG\t1ENT.
[Continued.]
Order Granting No Evidence lv!otion for Summary Judgment Page I of2
THE HONORABLE GISELA D. TRIANA
JUDGE, 200th JUDICIAL DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
Approved to Form:
~ ,
THE MEYERSON LAW FIRM, P.C.
Mark McLean
Attorney for Respondents/Judgment Creditors
1, . tJ ~- ~~ w( PA-M<«<•ev- (},
f;¥cicib WALKERIIP. ~
Scott Weatherford
Attorney for Petitioner/Judgment De tor
Order Granting No Evidence Motion for Summary Judgment Page 2 of2