Opinion issued February 25, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00280-CV ——————————— RONALD JOSEPH, Appellant V. BRITINI JEAVON JACK, Appellee
On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2018-91034
OPINION
Appellant, Ronald Joseph, appeals the trial court’s order denying his bill of
review and traditional motion for summary judgment. In a prior, separate
proceeding, appellee Britini Jeavon Jack obtained a default protective order against Joseph after he failed to appear for two hearings. Joseph filed a bill of review
requesting that the trial court vacate the default protective order, reopen those
proceedings, and grant a new trial. He also filed a traditional motion for summary
judgment in the bill-of-review proceeding. After a hearing and a request for
supplemental briefing, the trial court entered judgment denying both Joseph’s bill of
review and summary judgment motion.
On appeal, Joseph contends that: (1) the trial court erred in denying his bill of
review because the sheriff’s deputy who served him with process in the prior
protective order proceeding did not sign the return of service or did not sign it in his
official capacity, which rendered the protective order void; and (2) the trial court
violated his due process right to be heard on his bill of review by denying him an
evidentiary hearing and trial. We affirm.
Background
In February 2018, Jack, represented by the Harris County District Attorney’s
Office, filed an application for a protective order and temporary protective order
against Joseph in Harris County District Court alleging family violence. See TEX.
FAM. CODE ANN. §§ 81.001 (“A court shall render a protective order . . . if the court
finds that family violence has occurred and is likely to occur in the future.”),
83.001(a) (authorizing temporary ex parte protective order if court finds “that there
is a clear and present danger of family violence . . . without further notice to the
2 individual alleged to have committed family violence and without a hearing”). The
trial court issued a temporary ex parte protective order and ordered Joseph to appear
on March 7, 2018, and show cause that a protective order should not issue against
him.
The return of service, pictured below, was attached to the citation and is at
issue in this case.1 The notary signed and dated the return.
Attached to the return is an invoice from Calcasieu Parish Sheriff’s Office, a
service of process information sheet, and an envelope addressed to the Harris County
District Attorney’s Office. The invoice, which is on Calcasieu Parish Sheriff’s
Office letterhead, includes fees for the notary and citation with the notations,
1 The Court has redacted Joseph’s street address to protect his privacy.
3 “Personal to Ronald Joseph on 02/26/2018 by 75 DuBrock” and “Britini Jeavon Jack
vs Ronald Joseph[.]” The invoice payee is Tony Mancuso, Calcasieu Parish Sheriff’s
Office, with an address in Lake Charles, Louisiana. The information sheet includes
Joseph’s identifying information, address, and employment information. The
envelope addressed to the Harris County District Attorney’s Office bears the return
address for the Calcasieu Parish Sheriff’s Office.
On March 7, 2018, the trial court continued the hearing scheduled for that day
until March 21 and extended the temporary protective order for twenty days because
the return of service had not been on file with the court for ten days.2 See TEX. R.
CIV. P. 107(h) (prohibiting default judgment when proof of service had not been on
file with clerk of court for ten days before entry of judgment). Joseph did not appear
at the hearing on March 21, and the trial court signed a default protective order. The
order stated that Joseph was “duly and properly cited” and “duly and properly served
with the application and notice of the hearing” but “did not appear and wholly made
default.” The order found that “family violence has occurred and that family
violence is likely to occur again in the future, and that Respondent, RONALD
JOSEPH, has committed family violence.” The order prohibited Joseph from taking
2 The record does not indicate whether the court held a hearing on March 7 or merely continued it, but Joseph states in his brief that “[he] did not appear at the March 7 hearing.” We assume without deciding that the trial court held a hearing on March 7.
4 certain actions regarding Jack and her minor children, and it assessed him costs and
attorney’s fees to be paid to Harris County.
In December 2018, Joseph filed a petition for bill of review challenging the
default protective order. The sole ground raised in his petition was that DuBrock,
the serving officer, did not sign the return of service, thereby making the protective
order void due to improper service of citation. Joseph’s petition detailed the facts
and legal authority that he relied on to challenge the default protective order. Joseph
attached to his petition the records from the prior proceeding that we discussed
above: (1) the temporary protective order and show cause order; (2) the citation and
return of service, which included the Calcasieu Parish Sheriff’s Office invoice for
service and notary fees, information sheet, and return envelope; (3) the March 7
order extending the temporary protective order; and (4) the default protective order.
Jack, still represented by the Harris County District Attorney’s Office, filed an
answer with a general denial and a request for costs and attorney’s fees.
In January 2019, Joseph filed a traditional motion for summary judgment on
the ground that DuBrock did not sign the return of service, rendering the default
protective order void. Joseph attached the same documents to his motion that he had
attached to his petition.
The trial court held a brief hearing. Initially, the court stated that it had
reviewed Joseph’s petition and motion and was inclined to grant the bill of review.
5 However, the State argued that a law enforcement officer “sign[ed] his name Mike
DuBrock of Lake Charles, Calcasieu Parish, Louisiana” “above the line where it says
‘Deputy,’” which complied with the requirement in Texas Rule of Civil Procedure
107 that an officer “must sign the return.” See TEX. R. CIV. P. 107(e). Joseph
countered that the officer only “wrote his name.”
After reading excerpts of Rule 107 into the record, the trial court stated that it
believed the dispute was whether the officer’s handwritten, printed name on the
return constituted a signature, and it disagreed with Joseph that the officer did not
sign the return: “To me it looks like he signed it.” The trial court stated that it was
“going to reverse [itself]” from its initial inclination to grant Joseph’s bill of review
because DuBrock’s signature appeared to be valid and, therefore, the return
complied with Rule 107. Before the trial court ruled, however, Joseph argued that
he had established that DuBrock’s signature was invalid, but he requested a hearing
to provide evidence. The trial court disagreed with Joseph, but the court ordered him
to file a supplemental brief addressing the issue so that the court could “look at the
case law . . . and see exactly what [Joseph’s] argument is as to why this doesn’t
qualify as a signature.” The trial court told Joseph, “And if your brief convinces me
that you need a hearing on this matter, then I will set it for a hearing.”
Joseph filed a supplemental brief generally arguing that “[t]he return of
service . . . is not signed as that term is understood under Texas law,” that DuBrock
6 did not identify his principle, that DuBrock did not intend his printed name to be a
signature because he also printed “CPSO (15 miles)” next to his name, and that the
notary did not fill in DuBrock’s name in the notary certification. Joseph did not
attach evidence to his supplemental brief, and he did not make a further request for
an evidentiary hearing.
On March 28, 2019, the trial court entered an order denying Joseph’s bill of
review and motion for summary judgment. This timely appeal followed.
Bill of Review
In his first issue, which includes two subparts, Joseph argues that the trial
court erred in denying his bill of review because he was not properly served with
process in the protective order proceeding. Joseph argues that service was improper
because DuBrock did not sign the return of service or he did not sign the return in
his official capacity.
A. Standard of Review
We review a trial court’s ruling on a bill of review for abuse of discretion,
indulging every presumption in favor of the court’s ruling. Moore v. Brown, 408
S.W.3d 423, 432 (Tex. App.—Austin 2013, pet. denied); Xiaodong Li v. DDX Grp.
Inv., LLC, 404 S.W.3d 58, 62 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The
trial court abuses its discretion only if it acted in an unreasonable or arbitrary manner
7 or without reference to any guiding rules and principles. Xiaodong Li, 404 S.W.3d
at 62.
B. Governing Law
A bill of review is “a direct attack on a judgment that is no longer appealable
or subject to a motion for new trial.” Valdez v. Hollenbeck, 465 S.W.3d 217, 226
(Tex. 2015) (quoting Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex.
2010)); see TEX. R. CIV. P. 329b(f) (“On expiration of the time within which the trial
court has plenary power, a judgment cannot be set aside by the trial court except by
bill of review for sufficient cause, filed within the time allowed by law . . . .”). To
obtain an equitable bill of review, the petitioner must generally plead and prove:
(1) a meritorious claim or defense to the judgment; (2) which the petitioner was
prevented from making by official mistake or by the opposing party’s fraud,
accident, or wrongful act; (3) unmixed with any fault or negligence on the
petitioner’s own part. Valdez, 465 S.W.3d at 226 (citations omitted).
When, however, a petitioner’s sole claim is that service of process was
improper, he is relieved of showing the first two elements and need only prove the
third element: that judgment was rendered unmixed with the petitioner’s own fault
or negligence. Caldwell v. Barnes, 154 S.W.3d 93, 96–97 (Tex. 2004) (per curiam);
W. Columbia Nat’l Bank v. Griffith, 902 S.W.2d 201, 205 (Tex. App.—Houston [1st
Dist.] 1995, writ denied). The petitioner conclusively establishes the third element
8 by proving that service of process was improper. Caldwell, 154 S.W.3d at 97;
Griffith, 902 S.W.2d at 205.
The Texas Supreme Court has set forth the trial procedure and burdens of
persuasion by each party in a bill of review action, which is slightly modified when
the petitioner’s sole claim is improper service of process. Baker v. Goldsmith, 582
S.W.2d 404, 408–09 (Tex. 1979); see Caldwell, 154 S.W.3d at 97–98 (“slightly”
modifying Baker procedure “when a plaintiff seeks a bill of review based solely on
a claim of non-service”). The petition must allege “factually and with particularity”
that service was improper. Baker, 582 S.W.2d at 408. In addition, the petitioner bears
the burden to prove improper service. Id. at 409; Caldwell, 154 S.W.3d at 97–98.
The petitioner satisfies his prima facie burden by showing that he was improperly
served and “that he will be entitled to judgment on retrial if no evidence to the
contrary is offered,” which “is a question of law for the court.” Baker, 582 S.W.2d
at 409 (citations omitted).
The record in a bill-of-review proceeding is not limited to the prior
proceedings and the parties may present evidence to develop the record and support
their positions. See Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004), abrogated on
other grounds by Ex parte E.H., 602 S.W.3d 486, 496–97 (Tex. 2020). Prima facie
proof may be documentary evidence, discovery answers, and affidavits on file,
“along with such other evidence that the trial court may receive in its discretion.”
9 Baker, 582 S.W.2d at 408. The respondent may also present evidence, “but factual
questions arising out of factual disputes are resolved in favor of the [petitioner] for
the purposes of this pretrial, legal determination.” Id. “This may be an onerous
burden, but it is a major distinguishing factor between a bill of review and a motion
for new trial.” Id. at 409 (stating that “distinction rests on our policy favoring finality
of judgments”). “This preliminary showing is essential in order to assure the court
that valuable judicial resources will not be wasted by conducting a spurious ‘full-
blown’ examination of the merits.” Id. at 408.
If the court determines that a prima facie case has not been made, “the
proceeding terminates and the trial court shall dismiss the case.” Id. at 409; see also
Soefje v. Soefje, 270 S.W.3d 617, 625 (Tex. App.—San Antonio 2008, no pet.)
(stating that judgment may be rendered after pretrial hearing if record “unmistakably
demonstrates that there were only legal issues to decide” and parties had notice);
Walden v. Affiliated Comput. Sys., Inc., 97 S.W.3d 303, 323 (Tex. App.—Houston
[14th Dist.] 2004, pet. denied) (holding that Texas Rule of Civil Procedure 166,
allowing trial courts to hold pre-trial conferences, does not prevent trial court from
receiving evidence and expert testimony to “determin[e] whether any fact issue
remained for submission to a jury” and for “limited purpose of identifying and ruling
on legal issues, provided the court’s rulings do not resolve factual disputes that
properly fall within the province of the jury”). However, proof of non-service can
10 establish a prima facie case, and such proof would entitle a petitioner to a trial if the
parties dispute material facts. Caldwell, 154 S.W.3d at 97 (“Because proof of non-
service conclusively negates a plaintiff’s fault or negligence, then, the question of
service is properly resolved at trial and not by the trial court in a pretrial proceeding
if the material facts are disputed.”); Baker, 582 S.W.2d at 409.
When a petitioner challenges a no-answer default judgment in a bill of review,
the record must show strict compliance with the manner and mode of service, or
otherwise the service is invalid and the default judgment is void. Primate Constr.,
Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) (“For well over a
century, this court has required that strict compliance with the rules for service of
citation affirmatively appear on the record in order for a default judgment to
withstand direct attack.”) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990),
Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex. 1985),
McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965), Flynt v. Kingsville, 510
S.W.2d 934, 934 (Tex. 1935), Sloan v. Batte, 46 Tex. 215, 216 (1876), and Roberts
v. Stockslager, 4 Tex. 307, 309 (1849)); Griffith, 902 S.W.2d at 205–06. “Although
the law makes no presumptions in favor of valid issuance, service, and return of
citation in an attack on a default judgment, an officer’s return is prima facie evidence
of the facts recited therein and cannot be rebutted by the uncorroborated proof of the
11 moving party.” Griffith, 902 S.W.2d at 206 (citing Primate Constr., 884 S.W.2d at
152–53).
C. Analysis
1. Signature of Officer Executing Return of Service
Joseph does not deny that he was served with process in this case. Rather, in
the first part of his first issue, he argues that service of process was ineffective
because the serving officer did not sign the return of service as required by Rule 107.
Joseph acknowledges that the serving officer, DuBrock, handwrote his name on a
preprinted line above “Deputy” but argues that DuBrock’s printed name is not a
valid signature under the rule because he did not sign above the line preprinted with
“Affiant” and thus there is no indication that DuBrock intended to sign his name.
Jack responds that this Court has already decided that a printed name is sufficient
under Rule 107.
Joseph did not timely file a direct appeal or restricted appeal, and therefore he
could only challenge the default protective order issued in the prior proceeding by
bill of review. See Valdez, 465 S.W.3d at 220–21; TEX. R. APP. P. 26.1(a) (providing
deadline to file notice of direct appeal), (d) (providing deadline to file notice of
restricted appeal). Neither party disputes that an invalid signature on a return of
service constitutes a claim of improper service relieving Joseph of proving the first
two elements generally required for a bill of review to issue. See Primate Constr.,
12 884 S.W.2d at 152 (stating that strict compliance with Rule 107 is required to support
default judgment); Griffith, 902 S.W.2d at 205–06.
Joseph’s petition for a bill of review detailed the facts and legal authority that
he relied on and attached evidence in support. Joseph had the burden to present prima
facie proof that service was improper before he was entitled to an evidentiary hearing
or trial on his bill of review. See Baker, 582 S.W.2d at 408 (stating prima facie proof
“is essential in order to assure the court that valuable judicial resources will not be
wasted by conducting a spurious ‘full-blown’ examination of the merits”); Caldwell,
154 S.W.3d at 96–97.
Rule 107 requires the officer serving or attempting to serve a citation to “sign
the return.” TEX. R. CIV. P. 107(e); see TEX. R. CIV. P. 103 (authorizing “any sheriff
or constable” to serve process), 108 (providing that service of process outside of
state or to nonresident “shall be completed in accordance with Rule 107”). Neither
Rule 107 nor any of the other rules define “sign” or prescribe any particular format
for the serving officer’s signature on the return. See TEX. R. CIV. P. 107. This Court
has previously held that when “the name of the constable [that served process] is
printed rather than signed personally,” such a “printed signature of the constable was
sufficient for the official signature required by rule 107.” Garza v. Dal-Tile Corp.,
No. 01-93-01169-CV, 1994 WL 149079, at *1 (Tex. App.—Houston [1st Dist.] Apr.
21, 1994, no writ) (not designated for publication) (citing Houston Pipe Coating Co.
13 v. Houston Freightways, Inc., 679 S.W.2d 42, 45 (Tex. App.—Houston [14th Dist.]
1984, writ ref’d)). The Fourteenth Court of Appeals similarly has held that the
“deputy who made the return us[ing] a rubberstamp as his signature” strictly
complied with Rule 107. Houston Pipe Coating, 679 S.W.2d at 45 (citing
Cortimiglia v. Miller, 326 S.W.2d 278, 284 (Tex. App.—Houston 1959, no writ),
and Travieso v. Travieso, 649 S.W.2d 818, 820 (Tex. App.—San Antonio 1983, no
writ)).
Joseph attached several documents to his petition that he relied on to support
his claim. See Baker, 582 S.W.3d at 409 (stating that prima facie proof can consist
of documents, discovery responses, and affidavits on file as well as other evidence
trial court may receive “in its discretion”). He attached the trial court’s temporary
protective order and show cause order and the order extending the temporary
protective order and show cause order, the latter of which issued after Joseph was
served with process. But neither document mentions anything about service of
process or DuBrock, and they do not establish that DuBrock did not sign the return
of service. He also attached the default protective order, which recites the trial
court’s findings that Joseph was “duly and properly served with the application and
notice of the hearing” but “did not appear and wholly made default.” The order also
states that “all necessary prerequisites of the law have been satisfied” and the court
had jurisdiction over the parties and subject-matter jurisdiction over the case. The
14 trial court’s findings are not, however, evidence on the issue of whether DuBrock
signed the return. These documents are not directly relevant to our inquiry.
Joseph’s petition also included the return of service, which is primarily in
dispute in this case. The return is a preprinted form filled out in handwriting. The
return shows that Joseph was served at his home address in Louisiana, and it shows
the date and time that he was served. Further, it includes a copy of the citation, notice
of Jack’s application for a protective order and a temporary protective order, and
notice of the March 7 hearing. See TEX. R. CIV. P. 107(b) (providing information that
is required on return of service). The preprinted line for “Affiant” is blank, but above
the preprinted line for “Deputy,” the serving officer wrote “Lake Charles, LA. of
Calcasieu Parish, LA. Mike DuBrock CPSO (15 miles).” The face of the return
shows that DuBrock handwrote, though printed, his name on the return, which is
sufficient to constitute his signature. See Griffith, 902 S.W.2d at 206 (stating that
“officer’s return is prima facie evidence of the facts recited therein and cannot be
rebutted by the uncorroborated proof of the moving party”) (citing Primate Constr.,
884 S.W.2d at 152–53); Garza, 1994 WL 149079, at *1 (citing Houston Pipe
Coating, 679 S.W.2d at 45).
Joseph also argues that the line above the preprinted “Affiant” is blank, and
therefore DuBrock did not sign the return. Not so. The document was notarized with
a notary’s certificate stating that the officer “known to me [the notary] to be the
15 person whose signature appears on the foregoing return, personally appeared. After
being by me duly sworn, he/she stated that this CITATION/NOTICE was executed
by him/her in the exact manner recited on the return.” See Griffith, 902 S.W.2d at
206. And although there is a blank line in the notary’s certificate, the face of the
return unambiguously shows that DuBrock was the “person whose signature appears
on the foregoing return.” Thus, the notary certified that DuBrock’s signature
appeared on the return, that he was duly sworn, that he stated that he executed the
citation and notice, and that he executed it in the exact manner that he recited in his
handwriting on the form.
In his brief, Joseph concludes this argument by stating that “the question now
is whether Deputy DuBrock intended for his simple, written name to constitute a
symbolic affirmation, to which the answer is negative.” Joseph’s only arguments
regarding a lack of intent is that: (1) the blank line above the preprinted “Affiant” is
“telling evidence that no signature was ever intended”; and (2) DuBrock wrote next
to his name “CPSO (15 miles)” and therefore he could not have intended to sign on
that line “because he presumably did not intend for ‘CPSO (15 miles)’ to form part
of his signature.” However, Joseph did not offer any evidence showing DuBrock did
not intend his printed name to constitute a signature. Nor did he argue that he had or
could obtain additional evidence to present to the trial court. See Baker, 582 S.W.2d
at 409 (stating that petitioner bears burden of persuasion). Speculation is not prima
16 facie evidence. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 758 (Tex. 2003)
(stating that bill-of-review petitioner’s evidence, “though surprisingly detailed,”
cannot turn speculation into proof of fraud).
Other than the documents discussed above, including the return, Joseph did
not offer any other evidence. At the end of the hearing on Joseph’s bill of review and
summary judgment motion, the trial court ordered Joseph to provide additional
briefing showing his need for an evidentiary hearing, advising Joseph that “if [his]
brief convinces [the court] that [he] need[ed] a hearing on this matter, then [the court]
will set it for a hearing.” The court stated it would review the case law and “see
exactly what [Joseph’s] argument is as to why this doesn’t qualify as a signature.”
Joseph provided no additional evidence and he did not argue that any could be
obtained through discovery to support his position. Nor did he make any further
request for a hearing. Instead, he relied solely on legal arguments.
The return of service, alone or together with Joseph’s other evidence, is not
prima facie proof that he was improperly served and would be entitled to judgment
on retrial if no evidence to the contrary was offered. See Baker, 582 S.W.2d at 408;
Caldwell, 154 S.W.3d at 96–97. Because Joseph did not make a prima facie case of
improper service and because there were no factual disputes, the sole issue was a
question of law for the trial court to decide, and thus Joseph was not entitled to a
trial. See Baker, 582 S.W.2d at 408; Caldwell, 154 S.W.3d at 97; see also Soefje,
17 270 S.W.3d at 625; Walden, 97 S.W.3d at 323. We conclude that the return strictly
complied with Rule 107 because it was signed by the serving officer.
2. Failure of Executing Officer to Sign in Official Capacity
In the second part of his first issue, Joseph argues that DuBrock did not sign
the return in his official capacity and therefore the return is “fatally defective.” Jack
responds that Rule 107 previously required a sheriff’s deputy who serves process to
sign the return in his official capacity, but the rule was amended in 2012 and no
longer includes that requirement.
Rule 107 was amended effective January 1, 2012. LEJ Dev. Corp. v. Sw. Bank,
407 S.W.3d 863, 869 (Tex. App.—Fort Worth 2013, no pet.); In re S.C., No. 02-15-
00191-CV, 2015 WL 9435937, at *3 (Tex. App.—Fort Worth Dec. 23, 2015, no
pet.). Prior to that date, the rule required the return of service to “be signed by the
officer [executing the citation] officially . . . .” LEJ Dev., 407 S.W.3d at 869 (quoting
version of Rule 107 in effect prior to 2012 amendment). The amendment effective
in and after 2012 does not require that the return “be signed by the officer officially”;
instead, the rule only requires the serving officer to “sign the return.” TEX. R. CIV.
P. 107(e). Because it is undisputed that Jack filed her application in 2018, which is
after the 2012 amendment, we conclude that the current version of Rule 107 applies.
On appeal, Joseph relies solely on Travieso v. Travieso, a 1983 opinion from
our sister court construing Rule 107. See 649 S.W.2d at 819–20. In Travieso, the
18 court relied solely on the language of Rule 107 in effect at the time in stating that
“th[e] rule establishes three requirements for the proper return of a citation by
personal service,” including that the return “be signed by the officer officially.” Id.
at 820 (quoting prior version of Rule 107). As explained above, however, Rule 107
has been amended since Travieso issued in 1983, and the requirement that the officer
sign the return “officially” is not included in the current version of the rule. See TEX.
R. CIV. P. 107(e). Thus, Travieso does not support Joseph’s argument that DuBrock
was required to sign the return in his official capacity. We therefore conclude that
DuBrock was not required to sign his name in his official capacity. See id. We hold
that the trial court did not abuse its discretion in denying Joseph’s bill of review. See
Moore, 408 S.W.3d at 432; Xiaodong Li, 404 S.W.3d at 62.
We overrule Joseph’s first issue.
Due Process
In his second issue, Joseph argues that he was denied due process in the
underlying proceeding because the trial court denied his request for an evidentiary
hearing and trial on his bill of review.3 Joseph contends that the trial court improperly
3 Joseph does not argue on appeal that he was denied due process in the protective order proceeding, either because of an invalid signature on the return of service or otherwise. See TEX. R. APP. P. 38.1(i) (requiring appellate briefs to “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”); Guimaraes v. Brann, 562 S.W.3d 521, 538 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“Failure to cite appropriate legal authority or to provide substantive analysis of the legal issues presented results in
19 entered judgment denying his bill of review because Jack did not file a cross-motion
for summary judgment and no additional evidence was presented at the hearing on
his summary judgment motion. Joseph contends that he had a due process right to a
trial on his bill of review or at least an evidentiary hearing to present evidence. Jack
responds that the trial court conducted a hearing and that Joseph did not meet his
burden to establish a prima facie showing of improper service.
A. Standard of Review and Governing Law
We review de novo a claim that a party was deprived of a constitutional right
because it presents an issue of law. Scally v. Tex. State Bd. of Med. Exam’rs, 351
S.W.3d 434, 446 (Tex. App.—Austin 2011, pet. denied) (citing Granek v. Tex. State
Bd. of Med. Exam’rs, 172 S.W.3d 761, 771 (Tex. App.—Austin 2005, no pet.)). The
United States and Texas Constitutions prohibit the deprivation of life, liberty, and
property from any person without due process of law. U.S. CONST. amend. XIV, § 1;
TEX. CONST. art. 1, § 19. The right to be heard is a fundamental concept of due
process, and an opportunity to be heard must be granted at a meaningful time and in
a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 80 (1972). Generally, the right
to be heard includes the rights to a full and fair hearing before a court with
waiver of a complaint on appeal.”) (citation omitted); see also PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 274 (Tex. 2012) (“Texas courts of appeals have correctly distinguished between technical defects in service and a complete failure or lack of service, concluding that only the latter violates due process.”) (citations omitted).
20 jurisdiction, to introduce evidence and examine witnesses, and to have judgment
rendered only after a trial on the merits. Soefje, 270 S.W.3d at 625.
However, due process does not always prohibit disposition of a case before
trial. Id. Summary judgment is one example of a trial court disposing of a case before
trial. See TEX. R. CIV. P. 166a (providing, on party’s motion, “judgment sought shall
be rendered forthwith” if pleadings and other evidence on file show “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law on the issues expressly set out in the motion or in an answer or any
other response”). In addition, “a judgment may be rendered by way of a pre-trial
hearing in limited circumstances where the record unmistakably demonstrates that
there were only legal issues to decide and the parties had notice that the court would
consider final disposition during the pre-trial hearings.” Soefje, 270 S.W.3d at 625
(citations omitted); see TEX. R. CIV. P. 166 (authorizing trial court, in its discretion
and to assist in disposition of case, to hold pretrial conference to consider
“[c]ontested issues of fact” and “[t]he identification of legal matters to be ruled on
or decided by the court”); Walden, 97 S.W.3d at 323 (holding that Rule 166 does not
prevent trial court from receiving evidence and expert testimony to “determin[e]
whether any fact issue remained for submission to a jury” and “for the limited
purpose of identifying and ruling on legal issues, provided the court’s rulings do not
resolve factual disputes that properly fall within the province of the jury.”).
21 B. Analysis
As stated above, the Texas Supreme Court has outlined the procedure and the
parties’ respective burdens of persuasion as “slightly” modified when a plaintiff
seeks a bill of review based solely on a claim of improper service. Caldwell, 154
S.W.3d at 97–98; Baker, 582 S.W.2d at 408–09. For largely the same reasons
discussed above, we conclude that the trial court did not violate Joseph’s due process
right to be heard. The only evidence bearing on whether DuBrock signed the return
of service is the return itself, which Joseph attached to his petition and summary
judgment motion. Jack did not present any controverting evidence, and the parties
solely disputed whether DuBrock’s handwritten, printed named constituted a
signature under Rule 107. Thus, there were no material facts in dispute, and the sole
issue was a question of law for the trial court to resolve, not the factfinder at a trial.
See Soefje, 270 S.W.3d at 625 (stating that judgment may be rendered in pretrial
hearing where record unmistakably demonstrates only legal issues remain for
decision).
Moreover, at the hearing on Joseph’s motion, the trial court told Joseph that it
had reviewed both his bill of review and his motion for summary judgment and that
it disagreed with him that DuBrock’s signature was invalid. At the end of the
hearing, the trial court ordered Joseph to brief the signature issue so the court could
22 decide whether he was entitled to a hearing, affording Joseph an additional
opportunity to establish a prima facie case.
Joseph filed a supplemental brief, but he did not provide any additional
evidence, any argument that additional discovery would provide the evidence he
needed to prove his prima facie case, or any further request for an evidentiary
hearing. Indeed, nearly the entire record is one-sided in favor of Joseph’s arguments
and evidence. Other than Jack’s answer with a general denial and request for costs
and attorney’s fees, the clerk’s record consists of: (1) Joseph’s petition with the facts,
legal authority, and evidence, including the return, that he relied on for his
contentions; (2) his motion for summary judgment with supporting evidence; and
(3) his supplemental brief without any additional evidence. The reporter’s record
consists of both parties’ arguments, and it shows that while the trial court was
initially inclined to grant Joseph’s bill of review, it reversed course during the short
hearing after considering the pleadings, the parties’ arguments, the evidence,
including DuBrock’s signature on the return, and the text of Rule 107. Even on
appeal, Joseph does not argue what additional evidence, if any, would show that
DuBrock’s signature was not a valid signature.
Thus, Joseph was given sufficient opportunity to present evidence of a prima
facie case that would have entitled him to an evidentiary hearing or trial, but the
dispute was solely whether DuBrock’s signature on the return was sufficient under
23 Rule 107. As stated above, this is a legal issue for the court to decide. See Baker,
582 S.W.2d at 408; Soefje, 270 S.W.3d at 625. We therefore conclude that Joseph
did not satisfy his burden to present prima facie proof entitling him to a “‘full-blown’
examination of the merits” of his bill of review. See Baker, 582 S.W.2d at 408.
On appeal, Joseph relies solely on our sister court’s opinion in Striedel v.
Striedel, arguing that this case is analogous because he and the appellant in Striedel
were similarly denied the right to be heard and present evidence. See 15 S.W.3d 163
(Tex. App.—Corpus Christi–Edinburg 2000, no pet.). However, Striedel is
distinguishable. That case was a direct appeal from a protective order, not an appeal
from a denied bill of review, and the appellant in Striedel argued that he was denied
an opportunity to be heard at the hearing on the protective order against him. Id. at
164–65. Here, Joseph argues that his due process rights were violated in the
underlying bill-of-review proceeding, not in the prior protective order proceeding.
Furthermore, the appellant in Striedel, against whom the protective order was sought
by the appellee in that case, appeared pro se while the appellee was represented by
counsel, and the trial court denied the appellant’s request for an attorney. Id. at 165.
At the hearing on the protective order, the appellant attempted to cross-examine the
appellee but, before he could finish his examination—which consisted of “only two
and one-half pages of the record in [the] short hearing”—the trial court cut him off
24 and granted the protective order over his objection that he had other evidence and
had not been allowed to testify. Id. at 166.
In the underlying proceeding here, by contrast, Joseph was represented by
counsel, who attached evidence to Joseph’s petition, filed a motion for summary
judgment with supporting evidence on Joseph’s behalf, and filed a supplemental
brief in support of Joseph’s petition and claims of invalid service. Joseph’s counsel
was not interrupted at the hearing by either the trial court or opposing counsel, and
he was ordered by the trial court to file a supplemental brief so the court could
determine whether an additional hearing was necessary. Joseph did not provide any
additional evidence or request an evidentiary hearing. Thus, unlike the appellant in
Striedel, Joseph was not prevented by the trial court from testifying or offering
additional evidence. See id.
Finally, we disagree with Joseph that the trial court erred by entering judgment
on his bill of review when Jack did not file a cross-motion for summary judgment.
While summary judgment may only be rendered on a party’s motion and Jack did
not file a motion for summary judgment, the trial court did not grant summary
judgment in favor of Jack; it entered judgment denying Joseph’s bill of review and
his motion for summary judgment. See TEX. R. CIV. P. 166a (providing for summary
judgment when “there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law on the issues expressly set out in the
25 motion or in an answer or any other response”). We hold that the trial court did not
violate Joseph’s due process right to be heard, including his right to present evidence
and to a trial on the merits of his case.
We overrule Joseph’s second issue.
Conclusion
We affirm the judgment of the trial court. We dismiss any pending motions as
moot.
April L. Farris Justice
Panel consists of Justices Hightower, Countiss, and Farris.