X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:This case arises from a bill-of-review proceeding that challenged a default judgment for lack of service. After holding a pretrial hearing and taking evidence on the question of whether a bill-of-review plaintiff had been served with process in the underlying lawsuit, the trial court issued a finding of fact that the plaintiff had been served and rendered judgment against him. The court of appeals affirmed. HOLDING:Reversed and remanded. An individual who is not served with process cannot be at fault or negligent in allowing a default judgment to be rendered. Proof of non-service, then, will conclusively establish the third and only element that bill-of-review plaintiffs are required to prove when they are asserting lack of service of process as their only defense. When a plaintiff seeks a bill of review based solely on a claim of non-service, the bill-of-review procedure outlined in Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979), must be slightly modified. When a plaintiff claims lack of service, the trial court should: 1. dispense with any pretrial inquiry into a meritorious defense; 2. hold a trial, at which the bill-of-review plaintiff assumes the burden of proving that the plaintiff was not served with process, thereby conclusively establishing a lack of fault or negligence in allowing a default judgment to be rendered; and 3. conditioned upon an affirmative finding that the plaintiff was not served, allow the parties to revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case. The wrongful denial of a jury trial is harmful when the case contains a question of material fact. The question of whether the defendant was served with process is a question of material fact, and therefore the denial of a jury trial was harmful error. The defendant must be given a jury trial because he preserved his right to have a jury decide whether he was served with process. At trial, he must establish by a preponderance of the evidence that he was never served. OPINION:Per curiam.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.