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Maree v. Zuniga

Court of Appeals of Texas, Fourteenth District

May 7, 2019

VERNON KENT MAREE AND FRONT ROW PARKING, INC., Appellants
v.
BALDEMAR (VAL) ZUNIGA, Appellee

          On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 1063505

          Panel consists of Chief Justice Frost and Justices Jewell and Spain.

          OPINION

          KEM THOMPSON FROST, CHIEF JUSTICE

         Two plaintiffs appeal the trial court's summary judgment dismissing the petition in which they sought an equitable bill of review against a judgment rendered after they failed to appear at trial. The appellants have not shown that the summary-judgment evidence raises a genuine fact issue as to whether no proper service of process was effected on them or as to whether they diligently pursued all available and adequate legal remedies, such as a new trial. The appellants have not shown that the trial court erred in granting summary judgment based on the no- evidence ground challenging the third equitable-bill-of-review element - lack of fault or negligence on the appellants' part. We affirm.

         I. Factual and Procedural Background

         Appellee/defendant Baldemar (Val) Zuniga sued Vernon Kent Maree and Front Row Parking, Inc. (the "Maree Parties") in Cause Number 1029606 in County Civil Court at Law No. 4 in a dispute arising from the sale of 2013 Super Bowl tickets ("the Zuniga Lawsuit").[1] Zuniga made efforts to serve Maree and Front Row. According to Maree, Troy Pradia is a Texas attorney who, in October 2013, sought to purchase event tickets from one of Maree's businesses. Maree says that in a casual conversation with Pradia, Maree mentioned that someone had tried to serve papers related to the Zuniga Lawsuit on Maree while Maree was out of the office, and Pradia suggested that he would look into the matter. Though Maree appreciated Pradia's suggestion, Maree maintains that he had no expectation that Pradia would do anything beyond giving casual advice. Maree claims that Maree and Pradia discussed nothing further, and Maree never engaged Pradia to represent him or Front Row. Maree says he soon forgot his conversation with Pradia, he had no reason to follow up, and he quickly lost contact with Pradia. Soon after this conversation, Maree moved his businesses to a different location.

         The Maree Parties assert that they never authorized Pradia to appear or file an answer on their behalf in any proceeding, including the Zuniga Lawsuit. Maree says that because he never engaged Pradia as an attorney and had no expectation of engaging Pradia, Maree did not notify Pradia of his changed address.

         Neither of the Maree Parties signed an engagement letter with Pradia or paid him a retainer. Pradia, purporting to act as attorney for the Maree Parties, filed an original answer on their behalf in the Zuniga Lawsuit. Shortly thereafter, the trial court issued a notice setting a bench trial for June 16, 2014 (the "Trial Date"). The Maree Parties claim that Pradia never communicated to them that he had filed an answer on their behalf in the Zuniga Lawsuit or that the trial court had set the case for trial.

         About four months later, the trial court granted Pradia's motion to withdraw as counsel for the Maree Parties, with no new counsel taking Pradia's place. The Maree Parties assert that they never received notice of the motion to withdraw, and that even if they had received notice, the motion did not mention the trial setting or inform them of the Trial Date.

         The Maree Parties allege on information and belief that Zuniga appeared through counsel for trial on the Trial Date, and that Zuniga asked the court to sign a judgment by default for the Maree Parties' failure to appear at trial. Four days later, the trial court issued notice that a "hearing" was set for July 16, 2014 ("the Hearing Date"). In the notice the court did not mention what the court would take up at the hearing. The Maree Parties assert that they never received notice of the Hearing Date. The trial court signed a final judgment on July 28, 2014, awarding Zuniga relief on his claims against the Maree Parties (the "Underlying Judgment"). In the Underlying Judgment the trial court does not recite when the case was heard. The Maree Parties assert that they did not receive notice that the trial court had rendered this judgment and that they only became aware of the judgment when Zuniga began post-judgment collection efforts.

         Bill-of-Review Proceeding

         In June 2015, the Maree Parties filed this equitable-bill-of-review proceeding in the trial court, seeking to set aside the Underlying Judgment. In their live pleading they assert that they were never properly served with process in the Zuniga Lawsuit and that they never received notice of either the Trial Date or of the Hearing Date. The Maree Parties claim that they never had an attorney/client relationship with Pradia and that they did not know that Pradia was purporting to represent them in the Zuniga Lawsuit. They argue that the notice of trial setting served on Pradia did not give them notice of the trial setting.

         The Maree Parties further allege that they did not receive any notice of the Underlying Judgment from the trial court clerk. In the trial court the Maree Parties asserted that they had meritorious defenses to the Zuniga Lawsuit that they were prevented from making by the fraud, accident, or wrongful act of the opposing party or by official mistake, unmixed with any fault or negligence on their part. In addition, the Maree Parties claimed that they did not have to prove the traditional elements necessary to obtain bill-of-review relief because the Maree Parties were never properly served with process and because the Maree Parties never received notice of the trial setting or of the Underlying Judgment.

         Zuniga filed a summary-judgment motion asserting the following grounds:

(1)There is no evidence that either of the Maree Parties has a meritorious defense to the Zuniga Lawsuit;
(2) There is no evidence that either of the Maree Parties were prevented from making a meritorious defense by the fraud, accident, or wrongful act of the opposing party or by official mistake;
(3)There is no evidence of an absence of fault or negligence on the part of either of the Maree Parties; and
(4) The summary-judgment evidence proves as a matter of law that the Maree Parties' fault or negligence was a cause of the Underlying Judgment and thus the Maree Parties cannot establish the third element necessary for bill-of-review relief.

         The Maree Parties filed a response containing Maree's declaration, with two attachments (a copy of Maree's driver license and a handwritten document dated March 16, 2013), and an appendix ...


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