Court of Appeals of Texas, Fourth District, San Antonio
Michael MACS, High Cotton Holdings, LLC, Ranger O&G Operating, LLC, and Ranger Exploration Corporation, Appellants/Cross-appellees
Christopher LENAHAN d/b/a CPL Services, Appellee/Cross-appellant
the 218th Judicial District Court, La Salle County, Texas
Trial Court No. 16-07-00088-CVL Honorable Russell Wilson,
Sitting: Marialyn Barnard, Justice Rebeca C. Martinez,
Justice Irene Rios, Justice
C. Martinez, Justice
Michael Macs, High Cotton Holdings, LLC, Ranger O&G
Operating, LLC, and Ranger Exploration Corporation appeal the
summary judgment rendered in favor of Christopher Lenahan
d/b/a CPL Services. We reverse the judgment of the trial
court and render judgment in favor of appellants.
March 11, 2014, Christopher Lenahan d/b/a CPL Services sued
Michael Macs, High Cotton Holdings, LLC, Ranger O&G
Operating, LLC, and Ranger Exploration Corporation
("appellants"). Lenahan did not individually serve
appellants with process, but instead served their attorney,
J. Wayne Ballew. Ballew agreed to accept service on behalf of
appellants pursuant to a Rule 11 agreement dated April 4,
2014. The agreement was filed with the court on May 22, 2014
as part of Lenahan's motion for a "no answer"
default judgment. On the same day, the trial court rendered a
Final Default Judgment against appellants, finding that each
were responsible for the same alleged wrongdoing and awarding
Lenahan a total of $2, 964, 732.00 in actual and punitive
damages, plus an additional $76, 000 in attorney's fees.
1, 2016, appellants filed a bill of review, asserting that
fraud by Ballew caused the default judgment to be rendered
and that it should be set aside due to their lack of fraud or
negligence in failing to answer or oppose the default
August 19, 2016, appellants moved for summary judgment as a
matter of law requesting that the trial court grant their
petition for a bill of review and set aside the default
judgment entered against them. Appellants asserted that the
default judgment was rendered against them without having
been served with process, without being provided notice of
the default judgment, and without Lenahan filing proof of
service at least 10 days before moving for a default
judgment. Appellants argued that service on attorney Ballew
was ineffective under Rule 119, and therefore the bill of
review should be granted. Tex.R.Civ.P. 119. On November 23,
2016, Lenahan filed a cross-motion for summary judgment on
traditional and no-evidence grounds. The trial court granted
Lenahan's traditional motion for summary judgment and
denied Lenahan's no-evidence motion. The trial court also
denied appellants' motion for summary judgment and
dismissed appellants' bill of review with prejudice.
Appellants timely appealed the denial of their motion for
summary judgment. Lenahan did not file a notice of
cross-appeal, but complains on appeal of the trial
court's denial of his request for recovery of
attorney's fees in connection with the summary judgment.
Standard of Review and Applicable Law
review the grant of summary judgment de novo. Henkel v.
Norman, 441 S.W.3d 249, 250 (Tex. 2014) (per curiam). To
succeed on a traditional summary judgment motion, the
"movant must establish that there is no genuine issue of
material fact so that the movant is entitled to judgment as a
matter of law." W. Invs., Inc. v. Urena, 162
S.W.3d 547, 550 (Tex. 2005) (citing Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 471 (Tex. 1991)). "When a
movant meets that burden of establishing each element of the
claim or defense on which it seeks summary judgment, the
burden then shifts to the non-movant to disprove or raise an
issue of fact as to at least one of those elements."
Amedisys, Inc. v. Kingwood Home Health Care, LLC,
437 S.W.3d 507, 511 (Tex. 2014). In deciding which party
should prevail in this situation, "[w]e examine the
record in the light most favorable to the non-movant, indulge
every reasonable inference against the motion and likewise
resolve any doubts against it." Henkel, 441
S.W.3d at 250; see also Katy Venture, Ltd. v. Cremona
Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015). When, as
here, the parties file competing motions for summary
judgment, and the trial court grants one and denies the
other, we "determine all questions presented, and if the
trial court erred, render the judgment the trial court should
have rendered." Sw. Bell Tel., L.P. v. Emmett,
459 S.W.3d 578, 583 (Tex. 2015).
of review may be brought by a party seeking to set aside a
prior judgment that is no longer subject to challenge by a
motion for new trial or appeal. PNS Stores, Inc. v.
Rivera, 379 S.W.3d 267, 271 (Tex. 2012); Mungia v.
Via Metro. Transit, 441 S.W.3d 542, 547 (Tex. App.- San
Antonio 2014, pet. denied). Ordinarily, the bill of review
plaintiff must prove: (1) a meritorious defense to the
underlying cause of action, (2) which the plaintiff was
prevented from making by the fraud, accident or wrongful act
of the opposing party or official mistake, (3) unmixed with
any fault or negligence on its own part. Mabon Ltd. v.
Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex.
2012). However, when a bill of review plaintiff proves that
it was not served with notice of the lawsuit, the judgment is
"constitutionally infirm, " and the plaintiff is
relieved of proving these elements. Id. at 813
(quoting Peralta v. Heights Med. Ctr., Inc., 485
U.S. 80, 84, 87 (1988)). The third element is conclusively
established if the bill of review plaintiff can prove that he
was never served with process. Caldwell v. Barnes,
154 S.W.3d 93, 97 (Tex. 2004) (per curiam). "An
individual who is not served with process cannot be at fault
or negligent in allowing a default judgment to be
argue their attorney's acceptance of service did not
comply with Rule 119 and therefore cannot support the default
judgment. Rule 119 of the Texas Rules of Civil Procedure
provides, in relevant part:
The defendant may accept service of process, or waive the
issuance or service thereof by a written memorandum signed by
him, or by his duly authorized agent or attorney, after suit
is brought, sworn to before a proper officer
other than an attorney in the case, and filed among the
papers of the cause, and such waiver or acceptance shall have
the same force and effect as if the citation had been issued
and served as provided by law. The party signing such
memorandum shall ...