HECTOR SANCHEZ, INDIVIDUALLY, AND CUAUHTEMOC CONSTRUCTION, Appellants
R.S. CONCRETE, L.L.C., D/B/A R&S CONCRETE, L.L.C., Appellee
Appeal from County Court at Law No. 2 Harris County, Texas
Trial Court Case No. 1087751
consists of Chief Justice Radack and Justices Higley and
Radack Chief Justice
Hector Sanchez, individually, and Cuauhtemoc
Construction(collectively, "Sanchez"), appeal
the trial court's judgment denying his petition for a
bill of review to set aside a default judgment rendered
against him and in favor of appellee, R.S. Concrete, L.L.C.,
doing business as R&S Concrete, L.L.C.
("R&S"). In five issues, Sanchez contends that
the trial court erred in denying his petition for a bill of
review because he was not served with process in the
underlying lawsuit, the bill-of-review limitations period was
tolled by extrinsic fraud, and he was not afforded notice of
the hearing on the motion for default, a hearing on his bill
of review, or due process.
suit arises from a construction project that concluded in
December 2007. In its original petition, R&S alleged that
it supplied concrete and other materials for the project
pursuant its contract with Sanchez, doing business as
Cuauhtemoc, a sole proprietorship, and a personal guaranty by
Sanchez. After R&S fulfilled its obligations under the
contract, however, Sanchez refused, despite demand, to pay
the balance of $18, 224.97 outstanding on the account.
January 2009, R&S sued Sanchez for breach of contract,
sworn account, quantum meruit, and violations of the Prompt
Payment Act and Texas Construction Trust Fund
After R&S was not successful in effectuating service of
process on Sanchez, R&S moved for substituted
motion for substituted service, R&S asserted that its
attempts to effectuate service of process on Sanchez were not
successful and that reasonably effective notice could be
given to him by service at his usual place of residence,
located at 7112 Amarillo Street, Houston, Texas, by leaving a
copy with anyone over the age of 16 living at the residence
or by posting it at the front gate or front door of the
residence. To support its motion, R&S attached the
affidavit of a private process server, Carl Schultheis, Jr.,
who testified that he had attempted, at various times on
January 10, 13, 15, 17, 19, and 21, 2009, to personally serve
Sanchez at his usual place of residence: 7112 Amarillo
Street, Houston. The process server gave specific facts about
his visits to Sanchez's house and his contact with
Sanchez's wife and daughter. The daughter confirmed that
Sanchez lived at that address. The process server noted that,
although, on three occasions, he saw numerous trucks in the
driveway, the daughter said that Sanchez was at work and that
she did not know when he would return.
February 6, 2009, the trial court granted R&S's
motion for substituted service, ordering that service be made
on Sanchez by leaving a copy with anyone over the age of 16
living at the residence or "by posting at the front gate
or front door of the residence." The trial court also
ordered that process be mailed, by regular and certified
mail, to Sanchez at the same address.
February 27, 2009, the process server filed a verified return
of service and affidavit, stating that, at 11:00 a.m. on
February 21, 2009, he served Sanchez "by POSTING per
Order by securely affixing to the main entry way" at
7112 Amarillo Street, Houston, Texas. Also on February 21,
2009, the process server sent to Sanchez, by regular and
certified mail, return receipt requested, a copy of the
citation and original petition. To his return, he appended
the certified mail receipts.
March 24, 2009, after Sanchez did not appear or answer,
R&S moved for entry of a default judgment against him.
R&S appended copies of the credit application that
Sanchez executed on behalf of Cuauhtemoc; Sanchez's
personal guaranty; its unpaid invoice; and the affidavit of
Dolores Hernandez, an account manager for R&S. R&S
also appended certificates of last known address and an
affidavit of counsel in support of attorney's fees.
March 31, 2009, the trial court, after finding that Sanchez
was duly cited, the return had been on file for more than ten
days, and Sanchez had not answered or appeared, granted
R&S a default judgment on its claims. The trial court
awarded to R&S, and against Sanchez, actual damages in
the amount of $18, 224.97, attorney's fees of $2, 245.25,
interest, and costs. Also on March 31, 2009, the Harris
County clerk sent notice of the default judgment to Sanchez
at 7112 Amarillo Street, Houston, Texas.
October 17, 2016, a writ of execution issued. On January 3,
2017, Sanchez's real property, located at 947 Gazin
Street, Houston, Texas, was sold at a constable's sale.
January 10, 2017, Sanchez filed a petition for a bill of
review. He asserted that, although the four-year limitations
period governing petitions for bill of review had expired, he
was prevented by R&S's "extrinsic fraud"
from filing his petition earlier. Specifically, R&S had
"failed to serve [him] in person, " despite that it
had communicated with him in the past and could have
"easily located" him. He asserted that his
"address is 7112 Amarillo Street, Houston, Texas,
77020." Although, "[o]n February 21, 2009, service
by certified mail was attempted" on him, "pursuant
to an order by the trial court authorizing such service,
" he had "no recollection" of having been
also asserted that he was prevented from filing his petition
earlier by R&S's "extrinsic fraud, " in
that R&S had made "false promises of
compromise." In December 2007, he purchased concrete and
materials from R&S to fulfill his contract with a third
party, "Ritmo Latino, " pursuant to which Sanchez
had agreed to provide concrete services, in the amount of
$265, 000.00, on a construction project. He asserted that,
for a "few months, " he paid R&S. However,
after Ritmo stopped paying him, he was unable to pay R&S.
Sanchez asserted that, on July 31, 2008, he met with R&S,
and its counsel, and showed them his unpaid invoices. He
asserted that they "agreed" that he was "not
at fault for the unpaid materials" and that Ritmo
"was liable, " and R&S "told him that [it]
would not sue" him. Sanchez stated that he
"understood" that R&S "would not pursue
litigation against him" and "understood that the
matter had been settled." He asserted that the parties
had memorialized their agreement and that he had appended a
copy of their agreement to his petition.
further argued that he was deprived of due process because
R&S had failed to provide timely notice of the hearing on
its motion for default.
petition, Sanchez attached a copy of the default judgment;
R&S's motion for substituted service; the process
server's affidavit, detailing his attempts to personally
serve Sanchez at 7112 Amarillo Street, Houston; the trial
court's order authorizing substituted service; a December
10, 2007 "Letter of Agreement" between Ritmo and
Sanchez, on behalf of Cuauhtemoc, agreeing to provide
concrete services to Ritmo for the construction project; a
July 31, 2008 letter by Sanchez to R&S, acknowledging
receipt of its demand for payment and asserting that it had
"issued check# on [sic] for payment of those
deliveries"; and a "Deed of Trust, " filed on
January 23, 2008, securing a loan to Sanchez, at "7112
Amarillo, Houston, TX."
answered, generally denying the allegations and asserting,
inter alia, that Sanchez's suit for bill of review was
barred by limitations. R&S also filed objections to
Sanchez's petition for a bill of review, asserting that
it had served him with process in the underlying lawsuit in
accordance with the trial court's order authorizing
substituted service and that Sanchez had failed to plead and
prove that he was prevented from making an appearance due to
fraud by R&S.
trial court denied Sanchez's petition for bill of review.
reviewing the denial of a bill of review, every presumption
is indulged in favor of the trial court's ruling, which
will not be disturbed unless it is affirmatively shown that
there was an abuse of discretion. Xiaodong Li v. DDX Grp.
Inv., LLC, 404 S.W.3d 58, 62 (Tex. App.-Houston [1st
Dist.] 2013, no pet.). A bill of review is a separate,
independent suit brought by a party to a former action who is
seeking to set aside a final judgment that is no longer
subject to a motion for new trial or appealable. Caldwell
v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004); Wolfe v.
Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex.
App.-Houston [1st Dist.] 2001, pet. denied); see
Tex. R. Civ. P. 329b(f). It is an equitable remedy available
only when a party has "demonstrated due diligence and
can show, through no ...