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U.S. Energy Management, Inc. v. JRB International, L.P.

Court of Appeals of Texas, Fifth District, Dallas

April 26, 2017

U.S. ENERGY MANAGEMENT, INC. AND BRADLEY R. HITCHCOCK, Appellants
v.
JRB INTERNATIONAL, L.P., AND ROBERT BREWER, Appellees

         On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-04161-2015

          Before Justices Bridges, Myers, and Brown

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE

         This appeal involves a denial from a bill of review. In three issues, appellants U.S. Energy Management, Inc. and Bradley R. Hitchcock (USEM) argue the trial court erred by denying a bill of review because USEM (1) was not properly served with and given notice of JRB International, L.P's. and Robert Brewer's summary judgment (JRB); (2) did not receive a copy of the final judgment until after the deadline to file a motion for new trial or notice of appeal; and (3) it proved a meritorious defense. We affirm the trial court's judgment.

         Background

         In October 2012, JRB filed suit against USEM for breach of contract and defamation. JRB repeatedly attempted to serve USEM through Holly Hitchcock, its registered agent, at 1116 Dobie Drive in Plano, Texas. JRB eventually filed a motion for substituted service, which was granted, and USEM was served. JRB filed a motion for default judgment on June 14, 2013. USEM filed its answer on December 10, 2013. In October 2014, counsel for USEM withdrew and USEM "w[as] effectively without counsel."

         On February 1, 2015, USEM closed its office located at 1116 Dobie Drive and moved to 1912 Red Rock Drive in McKinney, Texas. It is undisputed USEM did not change the address of its registered agent or registered office when it moved, but claimed the office move was common knowledge in the industry.

         JRB filed a motion for summary judgment on February 13, 2015, which was set for "submission only" on March 27, 2015. JRB sent notice to USEM's Dobie Drive address, certified mail, return receipt requested, and also to Hitchcock by both certified and regular mail to the Dobie Drive address. USEM did not respond to the summary judgment motion. On April 30, 2015, the trial court granted a default summary judgment and awarded JRB $79, 256 in damages, plus attorney's fees.

         On June 16, 2015, JRB mailed a copy of the final judgment to USEM at the Dobie Drive address. Out of an abundance of caution, JRB also mailed a copy of the final judgment to the Red Rock Drive address-the address for "Holly A. Hitchcock, " the registered agent for another company. At the time, JRB had no knowledge whether she was the same Holly Hitchcock who was USEM's registered agent.

         USEM did not learn of the judgment against it until Hitchcock began receiving phone calls about the appointment of a receiver. Because the deadlines had passed for filing a motion for new trial or a notice of appeal, USEM filed a bill of review in which it argued it had a meritorious defense of payment of the sales commissions that formed the basis of JRB's breach of contract claim, and its original failure to respond to the summary judgment was not intentional or the result of conscious indifference, but rather due to JRB intentionally using USEM's old address to serve notice of the summary judgment submission and hearing. JRB filed an original answer to the bill of review and argued it was USEM's responsibility to update its registered office with the secretary of state, which it clearly failed to do; therefore, it could not argue it was denied due process. Further, JRB argued it mailed a copy of the final judgment to Holly Hitchcock at the Dobie Drive and the Red Rock Drive addresses, neither of which were returned. Thus, JRB asserted USEM received notice of the judgment in time to file a motion for new trial, but instead did nothing until contacted by a receiver.

         The trial court held a hearing on USEM's bill of review on October 28, 2015. Bradley Hitchcock, USEM's president, was the only witness to testify. He testified that he provided the post office with a change of address notice updating USEM's mailing address. He admitted he did not change the registered agent address with the secretary of state because he "simply was unaware" that he needed to; however, JRB introduced previous filings with the secretary of state in which USEM had changed the address of its registered agent. When presented with this evidence, Hitchcock testified it was "simple oversight" and "wasn't an intentional reason to not go change the registered address."

         The trial court denied USEM's bill of review and this appeal followed.

         Discussion

         A bill of review is an independent action to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. Thompson v. Henderson, 45 S.W.3d 283, 287 (Tex. App.-Dallas 2001, pet. denied). Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief by bill of review. Id. Because it is fundamentally important that some finality be accorded to judgments, a bill of review seeking relief from an otherwise final judgment is scrutinized by the courts "with extreme jealousy, and ...


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