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Vandervlist v. Samara Portfolio Management, LLC

Court of Appeals of Texas, Fourteenth District

July 27, 2017

WILLIAM A. VANDERVLIST, Appellant
v.
SAMARA PORTFOLIO MANAGEMENT, LLC, Appellee

         On Appeal from County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1060899

          Panel consists of Justices Boyce, Busby and Wise.

          MEMORANDUM OPINION

          William J. Boyce, Justice

         William A. Vandervlist[1] appeals the trial court's denial of his bill of review to set aside a default judgment rendered against him and in favor of appellee, Samara Portfolio Management, LLC, in 2009. The trial concluded that Vandervlist failed to demonstrate that Samara Portfolio committed extrinsic fraud as required when challenging a default judgment outside the four-year statute of limitations period and that Vandervlist's bill of review therefore was barred by the statute of limitations.

         Vandervlist argues that the trial court abused its discretion by finding that Samara Portfolio did not commit extrinsic fraud because he was properly served with process in 2009; Vandervlist argues that there is no admissible evidence to support the trial court's finding he was served with process and the only admissible evidence supports a finding that Vandervlist was not served with process.

         We affirm because we conclude that the trial court acted within its discretion in denying Vandervlist's bill of review because he failed to establish Samara Portfolio committed extrinsic fraud as required to challenge a default judgment outside the four-year statute of limitations.

         Background

         Vandervlist filed a petition for bill of review on April 1, 2015, and a first amended petition for bill of review on July 13, 2015, seeking to vacate a default judgment entered in favor of Samara Portfolio on November 16, 2009. Vandervlist alleged that he was not served with process and had no notice of the underlying suit against him until he received a notice on March 10, 2015, that an Application for Post Judgment Turnover Order and Appointment of a Receiver was set for a hearing. He alleged that he "forwarded the papers" he received to his attorney who filed the petition for bill of review.

         Vandervlist filed an affidavit he signed on March 26, 2015, with his bill of review. In his affidavit, Vandervlist averred that, among other things, he (1) "received a package which contained some legal papers in the lawsuit designated as Cause No. 936, 516; Samara Portfolio Management, L.L.C.;" (2) was "shown a copy of a document entitled 'Default Judgment, ' dated November 16, 2009;" (3) had never seen these documents prior to March 2015; (4) was not personally served and "did not receive any notice of any lawsuit, trial or hearing which led to the signing of any judgment or the judgment;" (5) "did not intentionally ignore the lawsuit" filed against him; (6) did not know Samara Portfolio; (7) did not avoid being served and did not "knowingly or purposefully ignore[] or avoid[] being served;" and (8) worked in 2009 as a soccer referee and was therefore "hard to find at [his] house" and "any papers left at [his] door may not be seen."

         Samara Portfolio filed an answer on August 14, 2015, generally denying the allegations Vandervlist made in his bill of review. Samaria Portfolio also claimed that Vandervlist failed to exercise due diligence in pursuing all available legal remedies against the default judgment, and that Vandervlist's bill of review is barred by the applicable four-year statute of limitations.

         The trial court held a hearing on Vandervlist's bill of review on September 1, 2015. At the hearing, Samara Portfolio argued that Vandervlist failed to file his bill of review within the applicable four-year statute of limitations and that the court therefore lacked jurisdiction to consider it. The trial court acknowledged that the four-year statute of limitations could only be tolled if Vandervlist established that Samara Portfolio committed extrinsic fraud.

         In response to the trial court's request to present evidence of extrinsic fraud, Vandervlist argued that, according to Defee v. Defee, 966 S.W.2d 719 (Tex. App.- San Antonio 1998, no pet.), "'not knowing of the lawsuit' is extrinsic fraud sufficient not only to suspend the accrual of the statute of limitation, but also to satisfy the extrinsic fraud element." He argued that there is evidence of extrinsic fraud because his affidavit, of which the trial court took judicial notice as requested, states that he had no knowledge of the lawsuit filed against him because he was not served with process and did not have notice of the lawsuit or default judgment until March 2015.

         Vandervlist also testified at the hearing that prior to March 2015 he did not know that he had been sued or that a default judgment had been rendered against him. He testified that he had lived at the same address - 19807 Sundance Drive, Humble, Texas - with his wife since 2001. He testified that he was not aware of receiving "any certified mail from any private process server or any person notifying [him] of any judgment, " or "any regular mail from the District Clerks's [sic] office notifying [him] of the lawsuit or the judgment." But during cross-examination, Vandervlist acknowledged testifying at his deposition that he has "a problem remembering things."

         Samara Portfolio asked the trial court to take judicial notice of the underlying case file in cause number 936, 516, and Vandervlist objected to the court "taking judicial notice and giving any evidence on the basis for any affidavits in those [sic] file - in that file because those are affidavits of the third-party offered for the truth of the matter stated and therefore, are hearsay." The trial court stated, "I'm going to take judicial notice of the case file of the underlying case 936516, . . . but that does not mean that I can use this as evidence."

         Samara Portfolio proceeded to "offer some documents from the underlying file." First, it offered without objection as Defendant's Exhibit number 2 a copy of its May 5, 2015 Motion for Substitute Service of Citation together with the supporting Sworn Affidavit for Substitute Service of process server Shon Byrd, and a copy of the trial court's May 8, 2009 Order for Substitute Service of Citation. In his affidavit, process server Boyd averred as follows:

My name is Shon Byrd, SCH 3762. I am a process server, and authorized to serve process in this cause. I am over the age of eighteen (18) years, of sound mind, and am not a party to nor interested in the outcome of this cause and am competent to testify to the facts in this affidavit, which are based on personal knowledge and are true.
I have attempted to deliver a true copy of the Citation, Plaintiff's Original Petition With Discovery, Request for Disclosure and Request for Admissions in this cause upon WILLIAM A VANDERVLIST at 19807 SUNDANCE DRIVE, HUMBLE, TX 77346 on the following dates and times:
03/24/2009 @ 8:20 PM - I SPOKE WITH A MALE THROUGH THE DOOR. HE TURNED THE PORCH LIGHT ON FOR A FEW SECONDS, BUT NEVER LET HIMSELF BE SEEN. HE SAID "YOU HAVE THE WRONG ADDRESS BUDDY" AND "NO ONE BY THAT NAME LIVES HERE BUDDY."
03/27/2009 @ I2:32 PM - I SPOKE WITH A MALE WHO SAID THAT NO ONE BY THE DEFENDANT'S NAME LIVES AT CURRENT ADDRESS. I SPOKE WITH THE NEIGHBOR WHO VERIFIED THAT HE KNOWS THE [sic] THE DEFEENDANT [sic] AND THAT DEFENDANT DOES LIVES [sic] AT THE ABOVE ADDRESS. THERE WAS A VEHICLE IN THE DRIVEWAY, LICENSE PLATE #DDG247, ...

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