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Jones v. Neill

Court of Appeals of Texas, Fifth District, Dallas

June 18, 2018

CHARLES JONES, Appellant/Cross-Appellee
JAMES P. NEILL, Appellee/Cross-Appellant

          On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. CV-12-2015

          Before Chief Justice Wright, Justice Bridges, and Justice Evans



         In August 2011, a post-answer default judgment was rendered against James P. Neill and in favor of Charles Jones for $2, 029, 518. Neill filed this petition for bill of review in December 2012 seeking to set aside the default judgment, alleging he never received notice of the trial date or default judgment in the underlying case. Although the trial court found Neill negligent in failing to inform his attorney and the court of his current address, it granted the bill of review and set aside the default judgment. The trial court then tried the underlying case before the court sitting without a jury and rendered judgment in Jones's favor and against Neill for $26, 900 plus attorney's fees.

         In three issues, Jones generally complains the trial court abused its discretion in setting aside the original judgment on bill of review because Neill's negligence caused his lack of notice of the trial date/default judgment in the underlying case. In his cross-appeal, Neill presents two issues challenging (1) the trial court's denial of his motion to set aside his deemed admissions in the underlying case, and (2) the legal and factual sufficiency of the evidence to support the trial court's judgment on retrial. Because we conclude the trial court abused its discretion in granting the petition for bill of review after finding Neill was negligent in failing to inform his counsel and the court of his current address, we reverse the trial court's judgment and render judgment denying the bill of review, vacating the trial court's final judgment of October 31, 2016, and reinstating the 2011 default judgment.


         The original lawsuit underlying this bill of review was filed in August 2006 by Neill, an attorney representing himself pro se. In the suit, Neill asserted various causes of action against Jones after a dispute arose regarding an agreement the two had to develop and operate a recreational park and activities on Neill's property. Jones answered the lawsuit and filed a counterclaim against Neill. Neill later retained attorney David M. Stagner to represent him in the case. Stagner filed a notice of appearance on Neill's behalf in March 2007. The parties subsequently entered into a rule 11[1] agreement to reset currently scheduled hearing dates on outstanding motions to a date agreeable to both parties. Apparently, no activity occurred in the case until four years later, in May 2011, when the court notified the parties the case would be dismissed for lack of prosecution.

         The parties' attorneys filed a joint motion to retain the case on the docket stating neither attorney was successful in his attempts to reach his respective client. Before the joint motion was heard, however, the trial court signed an order setting the final pre-trial hearing for July 27, 2011 and scheduling the trial for August 1, 2011. Stagner then moved to withdraw as Neill's attorney asserting his various attempts to locate and communicate with Neill were unsuccessful. The trial court granted Stagner's motion to withdraw shortly before the scheduled trial date.

          On August 1, 2011, Jones and his attorney appeared for trial and Neill did not appear. The trial court signed a judgment awarding Jones $2, 029, 518 plus attorney's fees on his counterclaim. Jones's attorney filed a certificate of last known address with the court listing Neill's last known address as 87 Dogwood, Mead, Oklahoma 73449.

         At the bill of review hearing in January 2013, there was extensive evidence regarding Neill's various addresses during the several years the underlying case was pending. When Neill first filed the case pro se, he listed his address as P.O. Box 2328 Pottsboro, Texas. In 2007, however, he filed a Plaintiff's Notice of Change of Address to 87 Dogwood Lane, Mead, Oklahoma 73449. The Clerk's Register of Actions, however, listed Neill's address as 87 Dogweed Lane, Mead, Oklahoma 73449.[2]

         Neill's wife Judy testified at the hearing. She stated that she moved into the house in Mead, Oklahoma in 1980 and two or three years later, was given notice in the mail by the post office that the address was 87 Dogwood Lane.[3] She continued to use 87 Dogwood Lane as her address even after she was advised the emergency responders' address for the home was on Shady Point. She also testified she was never officially notified that the post office had changed her address from 87 Dogwood Lane to 83 Shady Point and only learned of it after this case arose.

         She further testified that after retiring in 2005, she and Neill bought a boat and sailed around from 2006 through 2011, using the house in Mead as a base to come back to and that her son was authorized to accept mail for her and Neill at 87 Dogwood Lane. She would talk to her son once or twice a week. She indicated that until this lawsuit arose, she had no idea that 83 Shady Point was the post office address for her house.

         Neill testified he never received notice of the trial setting or default judgment. He further claimed he had no reason to doubt the validity of the Dogwood address he had given Stagner and the court in 2007. Neill stated that he currently lived at 721 Bunker's Cove, Panama City, Florida. It was undisputed that Neill was not living at 87 Dogwood Lane at the time of the original trial notice and resulting default judgment. Neill admitted that by the end of 2010, he provided both the Grayson County Appraisal District and the Bryan County Appraisal District with an address of 721 Bunker's Cove, Panama City, Florida.

         There was evidence, however, that Neill's stepson lived at 87 Dogwood during 2011 and 2012. The stepson's affidavit stated he was instructed to collect mail for Neill during this time. His stepson further stated no mail for Neill came to 87 Dogwood Lane from any lawyer, court, or court clerk during 2011 and 2012. Additionally, the stepson stated that in January 2012, the mail carrier advised him that ...

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