ACCEPTED 03-15-00287-CV 6791449 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/3/2015 4:26:08 PM JEFFREY D. KYLE CLERK CAUSE No. 03-15-00287-CV
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FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS9/3/2015 4:26:08 PM At Austin JEFFREY D. KYLE
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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.
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On Appeal from the 345th Judicial District Court of Travis County, Texas The Honorable Gisela D. Triana, Presiding
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APPELLEES’ RESPONSE BRIEF
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Mark R. McLean, TSB No. 24062882 MCLEANLAW PC 408 W 11th St., Ste. 500 Austin, TX 78701 p: 512.222.5641│f: 512.857.1282 e: mrm@mlpcfirm.com Attorney for Appellees
No Oral Argument Reqeusted
IDENTITY OF PARTIES & COUNSEL
Petitioner/Appellant Gary Mixon properly identified the parties and their counsel.
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL i
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
STATEMENT OF THE CASE 1
RECORD & APPENDIX REFERENCES 1
STATEMENT OF ORAL ARGUMENT 1
ISSUES PRESENTED FOR REVIEW 2
STATEMENT OF FACTS 3
A. Underlying case background: Mixon essentially stole Appelleees’ $200,000 Investment. 3
B. Pertinent timeline of events. 4
C. Mixon’s deposition testimony admits he has no competent evidence 7 supporting his bill of review.
D. Mixon’s recited Statement of Facts misrepresents the record. 9
SUMMARY OF THE ARGUMENT 10
STANDARD OF REVIEW 11
LEGAL AUTHORITY & ARGUMENT 13
i
A. Judge Triana properly granted summary judgment because Mixon admits he has 13 no corroborating proof that he was not served.
B. Judge Triana properly awarded attorney’s fees because attorney’s fees were 18 recoverable in the underlying lawsuit.
CONCLUSION & PRAYER 19
CERTIFICATE OF COMPLIANCE 22
CERTIFICATE OF SERVICE 22
TABLE OF AUTHORITIES
Texas Statutes & Rules
TEX. R. CIV. P. 166a(i) 11
TEX. CIV. PRAC. & REM. CODE § 38.002 20
TEX. REV. STAT. ART. 581-33(D)(7) 20
Texas Supreme Court Cases
Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) 13, 18
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) 12
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) 12,17
LMB, Ltd. v. Moreno, 201 S.W.3d 686 (Tex. 2006) 11
Meece v. Moerbe, 631 S.W.2d 729 (Tex. 1982) 18-20
Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) 13
State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d 298 (Tex. 2003) 15
ii
Texas Courts of Appeal Cases
Bakali v. Bakali, 830 S.W.2d 251 (Tex.App.—Dallas 1992, no writ) 20
Cortland Line Co., Inc. v. Israel, 874 S.W.2d 178, 184 (Tex.App.—Houston 19 [14th Dist.] 1992, writ denied)
Dias v. Dias, Cause No. 12-12-00685, 2014 Tex.App. LEXIS 12676 12,18-19 (Tex.App.—Corpus Christi Nov. 25, 2014, rhr’g den.)
Doolin’s Harley-Davidson, Inc. v. Young, Cause No. 06-05-00101-CV, 2006 19 Tex.App. LEXIS 116 (Tex.App.—Texarkana Jan. 6, 2006, no pet.)
Dorrough v. Cantwell, Cause No. 02-05-208-CV, 2006 Tex.App. LEXIS 20 6356 (Tex.App.—Fort Worth July 20, 2006, pet. denied)
Grynberg v. M-I, L.L.C., 398 S.W.3d 864 (Tex.App.—Corpus Christi 12 2012, pet. denied)
In re K.J.B., Cause No. 09-14-00324-CV, 2015 Tex.App. LEXIS 6477 14 (Tex.App.—Beaumont June 25, 2015, no pet. hist.)
Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428 (Tex.App.—Houston [14th 12, 15 Dist. 1999, no pet.)
Langdon v. Gilbert, Cause No. 03-14-00491-CV, 2014 Tex.App. LEXIS 15-16 13880 (Tex.App.—Austin Dec. 31, 2014, no pet.)
Lowe v. Farm Credit Bank2 S.W.3d 293 (Tex.App.—San Antonio 1999, 19-20 pet. denied)
Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 696 (Tex.App.—Corpus 19 Christi 2000, pet. denied)
Perez v. Old W. Capital Co., 411 S.W.3d 66 (Tex.App.—El Paso 2013, no 14-15 pet.)
Pettigrew v. Recoveredge, L.P., Cause No. 05-97-00239-CV, 1997 Tex.App. 14 LEXIS 4326 (Tex.App.—Dallas Aug. 15, 1997, no writ)
iii
Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106 (Tex.App.—Dallas 11,12,17 2009, pet. denied)
Rayon v. Engergy Specialties, Inc., 121 S.W.3d 7 (Tex.App.—Fort Worth 12, 15 2002, no pet.)
Rodriguez v. Holmstrom, 627 S.W.2d 198 (Tex.App.—Austin 1981, no 20 writ)
Sanders v. Sanders, Cause No. 01-11-00010-CV, 2011 Tex.App. LEXIS 14 8532 (Tex.App.—Houston [1st Dist.] Oct. 27, 2011, no pet.)
State ex rel. Mattox v. Buentello, 800 S.W.2d 320 (Tex.App.—Corpus 18-19 Christi 1990, no writ)
Sung Man Min v. Avila, 991 S.W.2d 495 (Tex.App.—Houston [1st Dist.] 13 1999, no pet.)
Williams v. Graffin, Cause No. 11-05-00128-CV, 2006 Tex.App. LEXIS 14 9699 (Tex.App.—Eastland Nov. 9, 2006, no pet.)
iv
STATEMENT OF THE CASE
Appellees, and the record, disagree with the “nature of the case” presented
by Petitioner Gary Mixon.1 Appellees sued Mixon in the underlying lawsuit based
on Mixon’s (clear) fraud, Securities Act violations, breach of contract, and breach
of fiduciary duty. Appellees did not “fail[] to properly effect service in the
underlying lawsuit” as Mixon represents. Rather, Appellees properly obtained an
Order of substitute service and properly served Mixon according to that order.
Judge Triana granted no-evidence summary judgment in the bill of review
proceeding because Mixon testified that he had no evidence or facts rebutting the
Affidavit of Service filed by Appellees’ process server in the underlying lawsuit.
Appellees agree with the remainder of Mixon’s asserted Statement of the
Case.
RECORD & APPENDIX REFERENCES
Appellees also rely on the Clerk’s Record. Citation to the documents will be
footnoted and pin-cited to “CR ##.”
STATEMENT OF ORAL ARGUMENT
Appellees agree that oral argument will not materially aid the Court’s
resolution of this appeal because Mixon testified he had no evidence to rebut the
validly filed Affidavit of Service.
1 “Mixon.”
2
ISSUES PRESENTED FOR REVIEW
Issue No. 1—Legal Sufficiency of Summary Judgment: Texas law
requires a bill of review Plaintiff to present corroborating evidence—beyond his
own self-serving denial of service—to rebut the presumption that the Plaintiff was
served. Mixon’s sworn testimony admits he has no such corroborating evidence
rebutting the Affidavit of Service. Accordingly, did Judge Triana properly grant
no-evidence summary judgment on the bill of review? Yes.
Issue No. 2—Attorneys Fees: Texas law allows for the recovery of
attorney’s fees for successfully defending a bill of review proceeding when
attorney’s fees are available in the underlying lawsuit. In this case, the investors’
claims in the underlying lawsuit—including Securities Act violations and breach of
contract—allowed for the recovery of attorney’s fees. Accordingly, did Judge
Triana properly grant attorney’s fees in the bill of review proceeding? Yes.
3
STATEMENT OF FACTS
A. Underlying Case Background: Mixon stole Appellees’ $200,000.00 investment.
Appellees invested $200,000.00 in Mixon’s “Nuwaris, Inc.” 2 purported
business venture based on Mixon’s gross misrepresentations of fact. 3 Nuwaris
(ostensibly) offered a Software-as-a-Service4 licensing platform for the sports, music,
and entertainment industries. 5 Mixon and his cohorts induced Appellees’
investments by representing that they had already secured contracts with
professional athletes 6 and musicians. 7 These representations were demonstrably
false.
Further, the relevant subscription agreements Appellees and Mixon signed
required that all monies funded (by Appellees) be held in escrow until six “units”
($50,000 each) were funded. If the requisite six units were not funded, then the
monies were to be returned to the investors “without interest or penalty.” 8
Appellees’ four units were the only units ever funded. Nonetheless, the monies
were not refunded and Mixon used Appellees’ monies intended for the project for
his own personal benefit.
“Nuwaris.” 2
For a discussion of the facts making the basis of the underlying lawsuit, see CR 12-25. 3 4 “SaaS.” 5 See CR 17. 6 E.g., Mixon represented that former University of Washington and Oakland Raider
legend Lincoln Kennedy had already invested in the project—and was gathering 25 other former NFL players to participate. CR 28.
7 For example, Kelly Rowland of Destiny’s Child fame. CR 28. 8 CR 30.
4
B. Pertinent Timeline of Events
On June 24, 2013, Appellees filed the underlying lawsuit. Appellees made a
number of service attempts on Mr. Mixon, to no avail.9
On September 25, 2013, Appellees filed a motion for substitute service on
Mixon. The motion relied on utilities set up by Mixon’s wife, Linda Komperda, at
the same address as the attempted service of process—116 Cave Circle, Boerne,
TX 78006. Judge Triana deferred ruling on the motion until Appellees presented
evidence that Mixon resided at the address along with Ms. Komperda.10
Accordingly, on October 19, 2013, Plaintiffs served Ms. Komperda—at the
116 Cave Circle address—with a subpoena for deposition. Ms. Komperda filed a
motion to quash the subpoena. Komperda’s motion listed the 116 Cave Circle
address.
On November 1, 2013, Judge Byrne heard Ms. Komperda’s motion to
quash and Plaintiff’s renewed motion for substitute service. At the hearing, Ms.
Komperda testified that Mixon lived with her at the 116 Cave Circle address: “[s]o
he has not been served, my husband. He does live with me. … We live where we
live.”11
9See CR 61-63. 10See CR 52-52, 3:22-4:10 (“Judge Triana’s staff attorney told us or told me that they wanted more evidence as to the fact that Mr. Mixon resided at the new 116 Cave Circle address with Ms. Komperda.”).
11 CR 54.
5
Based on Ms. Komperda’s admission that Mixon resided at the 116 Cave
Circle address with her, Judge Byrne granted Plaintiff’s Motion for Substitute
Service:
MR. MCLEAN: Thank you, your Honor. If you look at Exhibit 2 to our motion for substitute service, it shows that we have made a number of service attempts on Mr. Mixon at the 116 Cave Circle address. That issue is now pretty much moot. She just admitted on the record that he lives with her at that address.
So based on that admission, I respectfully request the court grant Plaintiffs’ motion for substitute service.
THE COURT: The court will grant the motion for substitute service[.]12
Judge Byrne then entered an Order allowing substitute service by leaving a
true and correct copy of the citation and petition on the front door of the 116 Cave
Circle address.13
The following day, on November 2, 2013, Process Server Margarito
Vasquez effectuated substituted service in exactly the manner authorized by Judge
Byrne. Mr. Vasquez’ Affidavit of Service states:
I, MARGARITO VASQUEZ SCH2597 EXP 6-30-18, being duly sworn, depose and say that on the 2nd day of November, 2013, I:
POSTED PER 106 ORDER signed by the [J]udge by securely attaching a true and correct copy of the CITATION AND PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE with the date and hour of service endorsed thereon
12 CR 55. 13 CR 57.
6
by me, to the front door of the property of GARY MIXON RESIDENCE at the address of: 116 Cave Circle, BOERNE, TX 78006[.]14
Despite perfected service pursuant to the Court’s Order, Mixon refused to
answer Judgment Creditors’ lawsuit. Accordingly, on January 17, 2014, Judgment
Creditors obtained a Default Judgment against him.
Mixon continued to ignore the legal process. He could have, but did not, file
a motion to reinstate or motion for new trial within 30 days of the Judgment.
Mixon could have, but did not, file a direct or limited appeal within six months of
the Judgment. Instead, although he had actual notice of the claims against him,
Mixon failed to respond to anything until Plaintiff filed a motion to compel post-
judgment discovery requests. Mixon filed a Motion to Set Aside the Judgment.15
On September 18, 2014, Judge Meachum denied Mixon’s motion to set aside and
granted Appellees’ motion to compel discovery.16 Mixon then filed his petition for
bill of review, making the basis of this appeal.
C. Mixon’s deposition testimony admits he has no competent evidence supporting his bill of review.
Mixon presented for deposition (solely with regard to his claims in the bill of
review) on November 25, 2014. In deposition, Mixon admitted that he was aware
14 CR 59. 15 CR 64. 16 CR 76.
7
of the underlying lawsuit against him as early as October 19, 2013.17 Mixon admits
that service attempts were made on him at the 116 Cave Circle address prior to
October 19, 2013.18
Most importantly, Mixon admitted he does not refute the Affidavit of Service
filed by Mr. Vasquez. He testified:
Q. I’ll show you what we’ll mark as Exhibit 12. If you turn to the second page of Exhibit 12 and I’ll tell you that this is the Affidavit of Service that Mr. Vazquez filed with the court?
A. Okay.
Q. And he states, ‘I, Margarito Vasquez, SCH2597 EXP 6/30/16, being duly sworn, depose and say that on the 2nd day of November 2013 at 11:53 a.m., I posted per 106 Order signed by the judge by securely attaching a true and correct copy of the Citation and Plaintiff’s Original Petition and Request for Disclosure with the date and hour of service endorsed thereon by me to the front door of the property of Gary Mixon residence at the address of 116 Cave Circle, Boerne, Texas 78006.’ Do you see that?
A. I do.
Q. Again, you have no reason to doubt the truthfulness of Mr. Vasquez, do you?
A. I do not question his statement. 19 17 Deposition of Gary Mixon, 16:19-21 (“Q. So you were aware on October 19, 2013 that you and your former company had been sued, correct? A. Yes, sir.”). “Mixon Depo.” CR 92-93.
18 Mixon Depo., 20:9-13 (“Q. So you know that process servers were attempting to serve
you at the 116 Cave Circle address when you saw Exhibit 9, correct? A. When the deposition information come for Linda is when I learned that process servers were attempting.”). CR 93.
19 Mixon Depo., 23:17-24:10. CR 94. See also Mixon Depo., 26:14-19, CR 95 (“Q. That’s
not my question. I’m going to have to object as nonresponsive. Are you testifying that Mr. Vasquez is not being truthful when he testified that he posted a copy of the citation and petition on your door on November 2, 2013? A. No, I’m not saying that.”); 27:5-9, CR 95 (“But you don’t have any evidence to indicate that he [Mr. Vasquez] is lying to the court when he testified
8
Mixon candidly admits he has absolutely no evidence to support his assertion
that he was not properly served:
Q. Earlier you told me that you have no reason to dispute Mr. Vasquez’s affidavit stating that he posted a copy of the petition and citation on your door on November 2, 2013, correct?
A. I did say that.
Q. So what proof do you have that you weren’t served?
A. I’m just telling the truth as the events unfolded through this process.
Q. Okay. The court entered an Order of Substitute Service. You understand that now, correct?
A. I do.
Q. And you understand that Mr. Vasquez filed an affidavit with the court stating that he served you pursuant to that Judge Burns [sic, Byrne’s] Order on November 2, 2013, correct?
A. Yes.
Q. Is there anything I’m missing? What other facts do you have showing this didn’t happen?
A. I don’t have any other facts.20
that he posted a copy of the citation and petition on your door on November 2, 2013? A. No, sir.”).
20 Mixon Depo., 31:10-32:3. CR 96.
9
D. Mixon’s Recited Statement of Facts misrepresents the record.
Mixon’s Statement of Facts contains a number of misstatements of the
record. First, Mixon’s Statement of Facts asserts that “[a]t no point in time during
the month of November did Mixon receive service of citation in the Underlying
Lawsuit.”21 This assertion is false. As noted above, Mr. Vasquez posted the citation
and petition on Mixon’s front door—exactly as prescribed by Judge Byrne’s
order—on November 2, 2013. Further, because Mixon’s brief admits he did not
move out of the 116 Cave Circle address until “[l]ater that month”,22 his brief
expressly concedes that he resided at the 116 Cave Circle address at the time of the
effectuation of substituted service.
Second, Mixon’s asserted Statement of Facts states “the Certificate of Last
Known Address filed by Appellees identified the incorrect address for Mixon.”23
This statement is misleading. As outlined above, Komperda testified on November
1, 2013 that Mixon resided at the 116 Cave Circle address. That was the address
listed on the Certificate of Last Known Address. Mixon’s assertion insinuates that
somehow it was Appellees’ fault for Mixon’s failure to notify them that he moved
out of the 116 Cave Circle address after Mr. Vasquez effectuated service of process.
Third, Mixon’s asserted Statement of Facts states:
21 Brief of Appellant, p. 7. 22 Id. 23 Id.
10
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 judgment. (CR 121). However, Appellees once again served Mixon at the wrong address (CR 121).24
Mixon’s assertions in this regard are disingenuous. Mixon’s failure to
arrange for mail to be forwarded to his new address (of which he failed to notify
Appellees and the Clerk) is not Appellees’ fault. Further, the District Clerk (not
Appellees) sent notice of the Judgment to both the Persimmon address listed in the
petition and the 116 Cave Circle address listed in the Certificate of Last Known
Address.25 Again, Mixon seems to argue it’s Appellees’ and the Clerk’s fault for his
failure to notify anyone of (and his apparent failure to arrange for mail to be
forwarded to) his new address.
SUMMARY OF THE ARGUMENT
1. Judge Triana properly granted Appelleees’ no-evidence motion for
summary judgment. In a bill of review proceeding, Texas law states that the
recitations asserted in an Affidavit of Service carry so much weight they cannot be
overcome by the uncorroborated testimony of the bill of review petitioner. Texas
law further states that the necessary corroborating evidence must be more than the
petitioner’s mere denial of service. In this case, Mixon’s brief admits that the only
24 Id. 25 CR 140-141.
11
evidence proffered was nothing more than his mere denial of service. Further,
Mixon testified in deposition that he had no evidence—let alone evidence sufficient
to overcome such a high burden—to refute the assertions made in the Affidavit of
Service.
2. Judge Triana properly awarded Appellees attorney’s fees for
successfully defending Mixon’s bill of review. Texas law is patently clear: attorney’s
fees are recoverable to the prevailing party in a bill of review proceeding if they
would in the underlying lawsuit. Appellees’ Securities Act and breach of contract
claims in the underlying lawsuit provide for the recovery of attorney’s fees at trial
and on appeal. Accordingly, Judge Triana did not abuse her discretion in awarding
fees for the successful defense of Mixon’s bill of review.
STANDARD OF REVIEW
A no-evidence motion for summary judgment is properly granted if, after
time for adequate discovery, the movant asserts there is no evidence supporting one
or more specified elements of a claim, and the non-movant produces no summary
judgment evidence raising a genuine issue of material fact on those elements.26 This
26 Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 111 (Tex.App.—Dallas 2009, pet.
denied) (citing TEX. R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006)).
12
Court reviews Judge Triana’s Order granting the no-evidence motion for summary
judgment under a legal sufficiency standard of review.27
[This Court should] sustain ‘no evidence’ or legal sufficiency challenges where (1) there is a complete absence of evidence of a vital fact (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact (3) the evidence offered to prove a vital fact is no more than a scintilla or (4) the evidence conclusively establishes the opposite of the vital fact.28
“Less than a scintilla of evidence exists when the evidence is so weak it does
no more than create a surmise or suspicion of fact.”29 “Evidence so slight making
an inference therefrom a guess is in legal effect no evidence.”30 The facts presented
in response to summary judgment must be both material—that is, they need to
affect the outcome31; and genuine—that is, a reasonable jury must be able to find
the fact in Mixon’s favor.32
With regard to the attorney’s fees issue, this Court cannot overturn Judge
Triana’s award of attorney’s fees “absent a clear abuse of discretion.”33
27 Id. at 111-12 (“Because a ‘no evidence’ summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard of review governing the latter.”) (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003)).
28 Id. at 112 (citing Chapman, 118 S.W.3d at 751). 29 Id. (citing Chapman, 118 S.W.3d at 751). 30 Id. (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). 31 Rayon v. Engergy Specialties, Inc., 121 S.W.3d 7, 11-12 (Tex.App.—Fort Worth 2002, no
pet.) (citing Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex.App.—Houston [14th Dist. 1999, no pet.)).
32 Id. (citing Lampasas, 988 S.W.2d at 433). 33 Dias v. Dias, Cause No. 12-12-00685, 2014 Tex.App. LEXIS 12676, at *22
(Tex.App.—Corpus Christi Nov. 25, 2014, rhr’g den.) (citing Grynberg v. M-I, L.L.C., 398 S.W.3d 864, 880 (Tex.App.—Corpus Christi 2012, pet. denied)).
13
LEGAL AUTHORITY & ARGUMENT
A. Judge Triana properly granted summary judgment because Mixon admits he has no corroborating proof that he was not served.
A bill of review Plaintiff asserting lack of service bears a heavy burden of
proving that he was not served.34 “[T]he testimony of a bill of review plaintiff
alone, without corroborating evidence, is insufficient to overcome the presumption
that the plaintiff was served.”35 “The recitations in the return of service carry so
much weight that they cannot be rebutted by the uncorroborated proof of the
moving party.”36
Mixon’s cited authority does not support his assertions. Mixon asserts that
Sung Man Min v. Avila37 supports the contention that “[a]t the summary judgment
stage, a petition’s own testimony is ‘some evidence of defective service of
process.’”38 Mixon’s assertion is a gross overstatement of the law. Rather, Sung Man
Min supports the opposite position: that corroborating evidence supporting a bill of
review can’t be the petitioner’s mere denial of service. The Court explains:
The prohibition against considering the challenger’s evidence applies only if the evidence does not rise above the mere denial of service[.] The test of evidence, from whatever source is whether it demonstrates facts and circumstances that support, and thus corroborate, the challenger’s claim.39
34 Caldwell v. Barnes, 154 S.W.3d 93, 97 (Tex. 2004). 35 Id. (citing Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)). 36 Id. at Fn. 3 (quoting Silver, 884 S.W.2d at 152). 37 991 S.W.2d 495 (Tex.App.—Houston [1st Dist.] 1999, no pet.). 38 Brief of Appellant, p. 18 (quoting Sung Man Min, 991 S.W.2d at 502). 39 Sung Man Min, 991 S.W.2d. at 503.
14
Mixon in this case offers nothing more than a mere denial of service. He
admits as much in his brief.40 In doing so, Mixon appears to misunderstand the
very concept of substituted service. Mixon’s entire argument to deny that service
was perfected is his assertion that he never received a copy of the citation and
petition.41 That’s not the issue.
Judge Byrne issued an Order that service be “perfected by posting a true and
correct copy of the citation and the attached petition on the front door of his
residence, 116 Cave Circle, Boerne, Texas 78006.”42 Judge Byrne’s Order is fully
consistent with Rule 106.43 Service was therefore perfected by Mr. Vasquez posting
a copy of the citation and petition to Mixon’s door, as confirmed in his Affidavit of
Service. Mixon’s assertion that he never received notice of it, despite being
implausible at best, is of no legal consequence. The El Paso Court in Perez v. Old W.
40 See Brief of Appellant, p. 13 (“Here, Mixon’s affidavit and deposition testimony, despite being ‘bare assertions’ that he was never served …”).
41 Id. (“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.’ … Mixon maintained that the best evidence of defective service is the fact that he never received the citation[.]”).
42 CR 57. 43 See, e.g., In re K.J.B., Cause No. 09-14-00324-CV, 2015 Tex.App. LEXIS 6477, at *15-
17 (Tex.App.—Beaumont June 25, 2015, no pet. hist.) (citing Perez v. Old W. Capital Co., 411 S.W.3d 66, 72-73 (Tex.App.—El Paso 2013, no pet.) (service by posting citation to main entry of defendant’s residence was proper and complied with court’s order authorizing substitute service)); Sanders v. Sanders, Cause No. 01-11-00010-CV, 2011 Tex.App. LEXIS 8532, at *7 (Tex.App.— Houston [1st Dist.] Oct. 27, 2011, no pet.) (same); Williams v. Graffin, Cause No. 11-05-00128- CV, 2006 Tex.App. LEXIS 9699, at *4-5 (Tex.App.—Eastland Nov. 9, 2006, no pet.) (same); Pettigrew v. Recoveredge, L.P., Cause No. 05-97-00239-CV, 1997 Tex.App. LEXIS 4326 (Tex.App.—Dallas Aug. 15, 1997, no writ) (same).
15
Capital Co.44 explained: “The Supreme Court of Texas has held that actual notice
[of service] is not only unnecessary, but is in fact, contrary to Rule 106(b)’s
underlying rationale[.]”45
Service was perfected the moment Mr. Vasquez posted the citation and
petition to the door of Mixon’s residence in accordance with Judge Byrne’s Order.
Mixon admits that he has no evidence controverting Mr. Vasquez’ Affidavit of
Service stating he performed that exact action. Mixon’s hollow assertion he never
received notice of the citation and petition—implausible as it is—holds no
evidentiary or legal value.
Because Mixon’s assertions that he “never received” a copy of the citation
and petition are of no legal consequence, they are not material.46 Even if they were
material, Judge Triana correctly determined by granting summary judgment that
the assertions were not genuine, because no reasonable jury could believe Mixon’s
far-fetched denial of notice.47
Mixon’s reliance on Langdon v. Gilbert,48 is likewise misplaced. In Langdon, this
Court held that “[t]he bill-of-review petitioner bears the burden of proving that he
44 411 S.W.3d 66 (Tex.App.—El Paso 2013, no pet.). 45 Perez, 411 S.W.3d at 71-72 (quoting State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d 298, 299 (Tex. 2003)).
46 That is, they do not affect the outcome. Rayon, 121 S.W.3d at 11-12. 47 Id. (citing Lampasas, 988 S.W.2d at 433). 48 Cause No. 03-14-00491-CV, 2014 Tex.App. LEXIS 13880 (Tex.App.—Austin Dec.
31, 2014, no pet.).
16
was not served with process.” 49 In Langdon, the underlying Plaintiff served the
Defendant—via certified mail—at the incorrect address through the Secretary of
State’s office.50
The Court held that the Bill of Review petitioner’s affidavit—with a driver’s
license indicating the correct address—was “some” evidence of defective service,
but still “inadequate to carry his burden of proof.”51
That is not the situation presented in this case. While the Langdon Court
focused on the petitioner’s affidavit that service was effectuated at the wrong
address, Mixon admits that perfected service as reflected in Mr. Vasquez’ Affidavit
of Service was performed at the proper address. Mixon’s own affidavit confirms he
did not move from the 116 Cave Circle address until after service was perfected on
him by Mr. Vasquez leaving a copy of the citation and petition on 116 Cave Circle
front door. The Langdon petitioner’s affidavit did not involve a mere denial of
service—rather, it concerned defective substitute service. In contrast, Mixon in this
case admits that he has no evidence to rebut the Affidavit of Service stating that
49 Id. at *6. 50 Id. at *1-2 (“After several unsuccessful attempts to effect service of process by a local sheriff’s office in New Jersey, Gilbert tendered service of process to the Texas Secretary of State pursuant to the substituted-service provisions in section 17.044 of the Civil Practices and Remedies Code. Gilbert notified the Secretary of State than Langdon’s address for service of process was 275 2nd Avenue, Long Branch, NJ 07740. The Secretary of State certified that process had been sent by certified mail to the stated address but was returned as unclaimed. On March 19, 2014 Gilbert obtained a default judgment[.] … Langdon asserted that his correct address is actually 275 2nd Ave. Front, Long Branch, New Jersey, and that service of process to the address specified in the Secretary of State’s certificate was therefore improper.”) (emphasis in original).
51 Id. at *7.
17
Mr. Vasquez properly served the citation and petition exactly as directed in Judge
Byrne’s Order. Mixon admits that his testimony (and his wife’s affidavit) presents
only a mere denial of service—evidence which the Sung Man Min Court confirmed
is insufficient.
The standard of review as outlined above is instructive.52 Judge Triana’s
grant of Appellees’ no-evidence summary judgment was proper because:
1. There is a complete absence of a vital fact—evidence rising above a
mere denial of service. Mixon’s brief admits that only a mere denial of service was
proffered.53
2. The Court is barred by rules of law and evidence (as outlined in the
Sung Man Min case) from considering evidence constituting a mere denial of service,
which Mixon’s brief admits is all that is presented here.
3. The evidence offered—even if it was of legal consequence—is no
more than a mere scintilla because it is, simply, unbelievable. And,
4. The evidence offered by Appellees—that Mixon testified that has no
facts or other evidence rebutting the facts asserted in Mr. Vasquez’ Affidavit of
Service—conclusively establishes the already-strong “presumption that the plaintiff
was served” via the “recitations in the return of service [which] carry so much
52 Plunkett, 285 S.W.3d at 112 (citing Chapman, 118 S.W.3d at 751). 53 See Brief of Appellant, p. 13 (“Here, Mixon’s affidavit and deposition testimony, despite being ‘bare assertions’ that he was never served …”).
18
weight they cannot be rebutted by the uncorroborated proof of the moving
party.”54
In light of the applicable law, and in light of Mixon’s unequivocal admissions
that he has no specific facts or evidence rebutting the recitations in Mr. Vasquez’
Affidavit of Service, Judge Triana properly granted Appellees’ no-evidence motion
for summary judgment.
B. Judge Triana properly awarded attorney’s fees because attorney’s fees were recoverable in the underlying lawsuit.
With regard to the attorney’s fees issue, Mixon attempts to use faulty (albeit
imaginative) logic to create a rule of law where none actually exists. Under Mixon’s
flawed logic, attorney’s fees are never available in a bill of review proceeding when
the petitioner challenges service of process (and thus does not have to present a
meritorious defense). This is not the law.
Rather, the clear rule in Texas is the opposite: “A successful party in a bill of
review is entitled to recover attorney’s fees if attorney’s fees are authorized in the
prosecution or defense of the underlying case.”55 “More specifically, attorney’s fees
are available if they would have been available in an appeal of the underlying
case.”56
54 Caldwell, 154 S.W.3d at 97. 55 Dias, 2014 Tex.App. LEXIS 12676 at *22 (citing Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982)).
56 Id. (citing State ex rel. Mattox v. Buentello, 800 S.W.2d 320, 327 (Tex.App.—Corpus
Christi 1990, no writ)).
19
Contrary to Mixon’s assertions, nothing in Meece remotely suggests
otherwise. In fact, the Meece Court upheld an award of attorney’s fees for the bill of
review appellee because “Meece would have been entitled to attorney’s fees if
Moerbe had been able to pursue the usual course of appeal.”57 That is exactly the
situation presented here.
Mixon does not cite a single case—nor is there one—for the proposition that
the bill of review proceeding requires a substantive analysis of the underlying
lawsuit in order to recover fees. The clear rule is the opposite.58
In fact, Mixon’s argument in this regard has been expressly addressed and
rejected. The Fourth Court of Appeals in Lowe v. Farm Credit Bank59 held:
Lowe contends that the Supreme Court’s hodling [in Meece] limits awards of attorney’s fees in bill of review proceedings to instances in which the respondent is required to prove the claim for which the statute authorizes attorney’s fees, i.e., the charging of the usurious interest rate. We disagree with this contention. The focus of the Supreme Court’s holding is whether the statute authorizing the recovery of attorney’s fees draws a distinction between an award of attorney’s fees at trial and an award of attorney’s fees on appeal. In the absence of such a distinction, attorney’s fees are recoverable in a
57Meece, 631 S.W.2d at 730. 58See, e.g., Dias, supra; Doolin’s Harley-Davidson, Inc. v. Young, Cause No. 06-05-00101-CV, 2006 Tex.App. LEXIS 116, at *8 (Tex.App.—Texarkana Jan. 6, 2006, no pet.) (“Attorney’s fees are available to the prevailing party in a bill of review action if there is a legal basis for awarding them pursuant to the underlying cause of action”); Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 696 (Tex.App.—Corpus Christi 2000, pet. denied) (“attorney’s fees are available to the successful party in a bill of review action if there is a legal basis for awarding them pursuant to the underlying cause of action.”) (citing Buentello, supra; Cortland Line Co., Inc. v. Israel, 874 S.W.2d 178, 184 (Tex.App.—Houston [14th Dist.] 1992, writ denied)).
59 2 S.W.3d 293 (Tex.App.—San Antonio 1999, pet. denied).
20
bill of review proceeding to the same extent as attorney’s fees were recoverable at trial.60
Lowe has been upheld by Texas Courts.61
In this case, Appellees asserted claims in the underlying lawsuit for violations
of the Texas Securities Act and breach of contract. Both of these claims allow for
the recovery of attorney’s fees, and there is no distinction for fees on appeal.62
Accordingly, Judge Triana properly awarded attorney’s fees. She certainly didn’t
abuse her discretion in doing so.
CONCLUSION & PRAYER
Judge Triana did not “refus[e] to acknowledge the fact issues raised by
Mixon, effectively depriv[ing] Mixon of that right.” Mixon’s brief admits he
proffered no more to Judge Triana than a mere denial of service. Mr. Vasquez’s
Affidavit of Service confirms he properly perfected service of process on Mixon by
leaving a copy of the citation and petition on Mixon’s door in accordance with
Judge Byrne’s Order. Mixon’s own testimony admits he could present no facts or
60 Lowe, 2 S.W.3d at 299 (citing Meece, 631 S.W.2d at 730; Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex.App.—Dallas 1992, no writ); Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex.App.—Austin 1981, no writ) (holding that bill of review is an appeal of the underlying judgment for purposes of attorney’s fees)).
61 See, e.g., Dorrough v. Cantwell, Cause No. 02-05-208-CV, 2006 Tex.App. LEXIS 6356, at
*13 (Tex.App.—Fort Worth July 20, 2006, pet. denied) (“A party who successfully defends against a bill of review is entitled to recover attorney’s fees if attorney’s fees are authorized in the prosecution or defense of the underlying case.”) (citing Meece, 631 S.W.2d at 730; Lowe, 2 S.W.3d at 299; Bakali, 830 S.W.2d at 257);
62 See TEX. CIV. PRAC. & REM. CODE § 38.002 (attorney’s fees recoverable for breach of
contract); TEX. REV. STAT. ART. 581-33(D)(7) (Under the Securities Act, “[o]n rescission or as a part of damages, a buyer or seller may also recover reasonable attorney’s fees if the court finds the recovery would be equitable under the circumstances.”).
21
evidence to refute the Affidavit of Service. Accordingly, Judge Triana properly
granted Appellees’ no-evidence motion for summary judgment.
On attorney’s fees, Texas’ rule of law is crystal clear: if they are recoverable
in the underlying lawsuit, they are recoverable for successfully defending a bill of
review proceeding. Judge Triana properly awarded Appellees attorney’s fees for
successfully defending the bill of review. She certainly didn’t display a clear abuse
of discretion in doing so, necessary for overturning the award.
Accordingly, Appellees respectfully request the Court affirm Judge Triana’s
order in all respects.
Respectfully submitted this September 3, 2015.
MCLEANLAW PC 408 W 11th St., Ste. 500│Austin, TX 78701 p: 512.222.5641│f: 512.857.1282 e: mrm@mlpcfirm.com
By: ____________________________ Mark R. McLean, TSB No. 24062882 Lead Counsel for Appellees
22
CERTIFICATE OF COMPLIANCE
In compliance with TEX. R. APP. P. 9.4(i)(3), the undersigned certifies that this brief complies with the requirements of TEX. R. APP. P. 9.4(i)(2) because it contains 5,368 words prepared in Microsoft Word 2011 for Mac edition using 14- point Baskerville typeface (12 point font in footnotes), using one inch margins on all sides.
____________________________
Mark R. McLean, TSB No. 24062882
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5(c), the undersigned certifies that a true and correct copy of this brief and its attachments was served on all counsel of record as reflected below on September 3, 2015.
Via Efile Via Email: jskaggs@jw.com & sweatherford@jw.com Jack E. Skaggs Scott W. Weatherford JACKSON WALKER, L.L.P. 100 Congress, Ste. 1100 Austin, TX 78701 Attorneys for Appellant
Via Efile Via Email: jeffm@meyersonfirm.com Jeff M. Meyerson THE MEYERSON LAW FIRM, P.C. 2224 Walsh Tarlton Ln., Ste. 120 Austin, TX 78746 Co-counsel for Appellees
____________________________
Mark R. McLean, TSB No. 24062882
CAUSE No. 03-15-00287-CV
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS At Austin
__________________________________________________________________
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 Judicial District Court of Travis County, Texas The Honorable Gisela D. Triana, Presiding
__________________________________________________________________
APPELLEES’ APPENDIX
__________________________________________________________________
TAB 1: Judge Byrne’s Order of Substitute Service(CR 57)
TAB 2: Margarito Vasquez’ Affidavit of Service (CR 59)
TAB 3: Excerpts from the Deposition of Gary Mixon (CR95-96)
CAUSE D-l-GN-13-002098
GREG NELSON, as principal ofJv1ADEX § IN THE DISTRICT COURT OF CAPITAL, LLC; NICK DEFILIPPIS, as § principal of BLUE STAR CAPITAL GROUP § LLC; MICHAEL MORINI; and NORMAN i\ ~ R. ZUK!S, § § Plaintiffs, § § v. § TRAVIS COUNTY, TEXAS § NUWARIS, INC; GARY MIXON~ MICHAEL § SID; ARLlN SEETHARA.MAN; STEPHEN § COLLINS; and SJC FINANCIAL SERVICES, § an unkno\'<TI and unregistered business entity, §
Defendants. 345th JUDICIAL DISTRICT
ORDERR GRANTING PLAINTIFFS' MOTION Jl'OR SUBSTITUTE SERVICE
The Court, having heard Plaintiffs' Motion for Substitute Service, and oral argument,
hereby GRANTS the same in entirety. The Court ORDERS that service of process on
Defendant Gary Mixon may be perfected by posting a true and correct copy of the citation and
the attached petition on the iront door of his residence, 116 Cave Circle, Boerne~ 78006.
IT IS ORDERED.
Entered this_(. day of Nove
£ I f _______ (~&(-~{/
Order Granting .iHotion jiJr Substilld1! Service Page J of l TAB 1 Exhibit 2 57
AFFIDAVIT OF SERVICE
State of TEXAS County of TRAVIS 345th Judicial District Court
Case Number: D-1-GN-13-002098
Plaintiff: GREG NELSON, ET AL vs. Defendant: NUWARIS, INC., ET AL
Received by Austin Process on the 1Oth day of July, 2013 at 2:20pm to be served on GARY MIXON, 116 Cave Circle, BOERNE, TX 78006.
I, MARGARITO VASQUEZ SCH2597 EXP 6-30-16, being duly sworn, depose and say that on the 2nd day of November, 2013 at 11:53 am, 1:
POSTED PER 106 ORDER signed by the judge by securely attaching a true copy of the CITATION AND PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE with the date and hour of service endorsed thereon by me, to the front door of the property of GARY MIXON RESIDENCE at the address of: 116 Cave Circle, BOERNE, TX 78006
I certify that I am over the age of 18, and of sound mind, have no interest in the above action, and am a Certified Process Server, in good standing, in the judicial circuit in which the process was served.
Subscribed and Sworn to before me on the 13th day MARGARITO VAS EZ SCH2597 EXP 6-30-16
~:~~· 2;13~ affia:is pernonally SCH2597 EXP 6-3 -16
Austin Process
(~JJdt 809 Nueces Austin, TX 78701 (512) 480-8071
1'- ,,,,,,,,, T JAN WElLS Our Job Serial Number: BBW-2013003673 "\ ~. ,~ PIJe'~, Notary Pubhc, l h'tA:;:~\IY • State of Texas Ref: 2822 ~ t; \..1'\.: ~ My Commtssion Exptres ('"':...~;.; •• •• ~~~s october 02, 2015 ' 1 _.1111f,?\~\~\"\"t-.. - __..,. ' 1·--- - Copyngllt © 1992-2011 Database Services, Inc - Process Server's Toolbox V6.5m
TAB 2 Exhibit 3 59
Gary Mixon November 25, 2014
Page 22 Page 24 1 there? 1 true and correct copy of the Citation and Plaintiff's 2 A. Yes, sir. 2 Original Petition and Request For Disclosure with the 3 Q. I said, "Yeah. We'll withdraw our request for 3 date and hour of service endorsed thereon by me to the 4 dispute based on that order. I have an order for the 4 front door of the property of Gary Mixon residence at 5 court as well." Do you see that? 5 the address of 116 Cave Circle, Boerne, Texas 78006." 6 A. I do. 6 Do you see that? 7 Q. Did Ms. Komperda tell you that the court granted 7 A. I do. 8 the Motion For Substitute Service when she came home 8 Q. Again, you have no reason to doubt the 9 from this hearing? 9 truthfulness of Mr. Vasquez, do you? 10 A. No. When she came home from this hearing I was 10 A. I do not question his statement. 11 with my boys and not physically there. However, she did 11 Q. If you go back to Exhibit, 4 which is your Bill 12 call me to tell me that there was a Motion to Quash was 12 of Review that you filed? 13 quashed. 13 A. Yes. 14 Q. But she didn't tell you that the court had 14 Q. If you turn to the back, the last exhibit, which 15 granted substitute service on you? 15 is your affidavit, do you see that? 16 A. She did not. 16 A. I do. 17 (Exhibit No. 11 was marked.) 17 Q. Paragraph 4 states, "On Wednesday, November 6, 18 BY MR. McLEAN: 18 2013 I called the clerk of the Travis County District 19 Q. Let me show you what I'm marking as Exhibit 11. 19 Court to inquire whether their records showed that I had 20 Have you seen Exhibit 11 before? 20 been served in Cause Number D-1-GN-13-002098 in the 21 A. I do not recall seeing this document, no. No, 21 345th Judicial District of Travis County, Texas. On 22 in fact, I will say no. 22 that call, the clerk stated that I had not yet been 23 Q. If you look at the top right-hand comer of 23 served." Do you see that? 24 Exhibit 11, do you see that it was filed on November I, 24 A. I do. 25 2013? The Affidavit of Service was filed on
Page 2 Page 25 1 A. I see that here. 18, 2013, if you look back on Exhibit 12. Do 2 Q. It states, "The court, having heard Plaintiff's 2 you see that? 3 Motion For Substitute Service and Oral Argument hereby 3 A. Which one? I'm sorry. 4 grant the same in its entirety. The court orders that 4 Q. Exhibit 12. On the top right-hand comer of the 5 service of process on defendant Gary Mixon may be 5 front page it says, "Filed with District Court of Travis 6 perfected by posting a true and correct copy of the 6 County, Texas November 18, 2013." Do you see that? 7 citation in the attached petition on the front door of 7 A. I do. 8 his residence 116 Cave Circle, Boerne, Texas. Entered 8 Q. So you're telling me that Ms. Komperda didn't 9 this !st day of November 2013." I read that correctly, 9 tell you that the court ordered substitute service on 10 correct? 10 November !st, but six days later -- and you didn't get a 11 A. I believe so. 11 copy of the citation that Mr. Vasquez posted on your 12 (Exhibit No. 12 was marked.) 12 door on November 2nd, and November 6th you called the 13 BY MR. McLEAN: 13 clerk of the court to ask if you had been served? 14 Q. Your testimony is that Ms. Komperda did not tell 14 A. That is correct. 15 you that the court entered substitute service? 15 Q. Okay. So if she didn't tell you that the court 16 A. That is my testimony, yeah. 16 had ordered substitute service and you didn't get the 17 Q. I show you what we'll mark as Exhibit 12. If 17 copy posted on your door, what prompted you to call the 18 you turn to the second page of Exhibit 12 and I'll tell 18 court and ask if you had been served? 19 you that this is the Affidavit of Service that 19 A. Simply you were deposing my wife and you stated 20 Mr. Vasquez filed with the court? 20 why. 21 A. Okay. 21 Q. When the Motion to Quash hearing went she said 22 Q. And he states, "I, Margarito Vasquez, SCH2597 22 -- the court said -- Judge Bums said, "I'm ordering 23 EXP 6/30/16, being duly sworn, depose and say that on 23 substitute service"? 24 the 2nd day of November 2013 at 11 :53 a.m., I posted per 24 A. But I wasn't at the court. I apologize. 25 I 06 Order signed by the judge by securely attaching a 25 Q. You weren't. You're saying there's no
7 (Pages 22 to 25)
Kim Tindall and Associates, LLC 16414 San Pedro, Suite 900 San Antonio, Texas 78232 210-697-3400 210-697-3408 TAB 3 94 Electronically signed by Janalyn Reeves (201-421-177-1012) 8b1 Oab1 b-8d5f-4a0c-acec-4e9d955a92ff
Gary Mixon November 25, 2014
Page 30 Page 32 1 if -- when you requested my deposition, that is when I 1 A. Yes. 2 filed? 2 Q. Is there anything I'm missing? What other facts 3 Q. You filed the Bill of Review on what, 3 do you have showing that this didn't happen? 4 October 20th? 4 A. I don't have any other facts. 5 A. I'm just saying there's no correlation I was 5 Q. All right. So I just want to recap the time 6 filing the Bill of Review anyway regardless of why. 6 line, then I think I'm done. On June 28, 2013 a lawsuit 7 Q. Well, this was filed September 18th, you filed 7 was filed against you. You understand that now? 8 the Bill of Review on October 20th. There's no dispute 8 A. Yes, sir. 9 about that? 9 Q. On October 19, 2013 your wife was served with a 10 A. Not disputing dates, no, sir. 10 deposition subpoena and you stated that was the first 11 Q. Now, on your Bill of Review which is Exhibit 4, 11 date you learned of this lawsuit, correct? 12 your only allegation contained in the Bill of Review is 12 A. Yes. 13 that you were never served, correct? 13 Q. On October 24th you received a Motion For 14 A. That is correct. 14 Substitute Service, correct? 15 Q. Paragraph 23 of the Bill of Review states, 15 A. Yes. 16 "Mixon was never served. Service of process was done 16 Q. On November 1st your wife was in courtroom when 17 via substitute service and in this instance was not 17 Judge Burns entered the Order Granting Substitute 18 effective to actually provide Mixon with service of 18 Service, correct? 19 process. Therefore, Mixon had no notice that his answer 19 A. Yes. 20 was due." Do you see? 20 Q. On November 2nd Mr. Vasquez testified that he 21 A. Yeah -- I mean, no. Hold on. Where are we? 21 posted a copy of the petition and citation to your door 22 Q. It's Paragraph 23. It's page -- if you look at 22 at the 116 Cave Circle address, correct? 23 the top right -- or bottom left, it's Page 6 of the Bill 23 A. I understand that now. 24 of Review. 24 Q. On November 6, 2013 you called the clerk to see 25 A. Yeah, Page 6. return of service had been filed, correct?
Page 31 Page 33 1 Q. Yeah? I called the clerk to see if I was being served. 2 A. Okay. I'm on Page 6. 2 Q. Okay. On November 6, 2013 you called the clerk 3 Q. Paragraph 23 at the bottom? 3 regarding service on you, correct? 4 A. At the bottom, yes. 4 A. Yes, sir. 5 Q. It says, "Service of process was done via 5 Q. When you called the clerk, did she say it might 6 substitute service and in this instance was not 6 take a week or so? 7 effective to actually provide Mixon with service of 7 A. It was a male. 8 process." Do you see that? 8 Q. Did he say it might take a week or so? 9 A. I do. 9 A. He explained in great detail. He asked me who I 10 Q. Earlier you told me that you have no reason to 10 was and asked for the case number. 11 dispute Mr. Vasquez's affidavit stating that he posted a 11 Q. Did he state that it might take a week or so? 12 copy of the petition and citation on your door on 12 A. He did not state that. 13 November 2, 2013, correct? 13 Q. What did he state regarding the time frame? 14 A. I did say that. 14 A. He stated -- it was a long answer. Can I give 15 Q. So what proof do you have that you weren't 15 you the long answer or just the yes or no? He did 16 served? 16 not -- he did not say it would take a week or so. 17 A. I'm just telling the truth as the events 17 Q. What did he state regarding the time frame? 18 unfolded through this process. 18 A. That there was a process and it could be 19 Q. Okay. The court entered an Order of Substitute 19 anywhere from three days to the next ten days given 20 Service. You understand that now, correct? 20 where this constable is located. 21 A. I do. 21 Q. And you understood that on November 18th, 2013 22 Q. And you understand that Mr. Vasquez filed an 22 the Affidavit of Service was actually filed with the 23 affidavit with the court stating that he served you 23 court? 24 pursuant to that Judge Burns' Order on November 2, 2013, 24 A. I did not know that, no. 25 correct? 25 Q. Well, you know that now, correct?
9 (Pages 30 to 33)
Kim Tindall and Associates, LLC 16414 San Pedro, Suite 900 San Antonio, Texas 78232 210-697-3400 210-697-3408 TAB 3 96 Electronically signed by Janalyn Reeves (201-421-177-1012) 8b1 Oab1 b-8d5f-4a0c-acec-4e9d955a92ff