Joseph v. Jack

624 S.W.3d 1

Ronald JOSEPH, Appellant

v.Britini Jeavon JACK, Appellee

NO. 01-19-00280-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 25, 2021

Lenzi Sheible, SULLO & SULLO LLP, 2020 Southwest Freeway, Ste. 300, Houston, Texas 77098, for Appellant.

Kim Ogg, District Attorney, Harris County, Texas, Bridget Holloway, Harris County District Attorney's Office, 500 Jefferson, Ste. 600, Houston, Texas 77002, for Appellee.

Panel consists of Justices Hightower, Countiss, and Farris.

April L. Farris, Justice

Appellant, Ronald Joseph, appeals the trial court's order denying his bill of review and traditional motion for summary judgment. In a prior, separate proceeding, appellee Britini Jeavon Jack obtained a default protective order against Joseph after he failed to appear for two hearings. Joseph filed a bill of review requesting that the trial court vacate the default protective order, reopen those proceedings, and grant a new trial. He also filed a traditional motion for summary judgment in the bill-of-review proceeding. After a hearing and a request for supplemental briefing, the trial court entered judgment denying both Joseph's bill of review and summary judgment motion.

On appeal, Joseph contends that: (1) the trial court erred in denying his bill of review because the sheriff's deputy who served him with process in the prior protective order proceeding did not sign the return of service or did not sign it in his official capacity, which rendered the protective order void; and (2) the trial court violated his due process right to be heard on his bill of review by denying him an evidentiary hearing and trial. We affirm.

Background

In February 2018, Jack, represented by the Harris County District Attorney's Office, filed an application for a protective order and temporary protective order against Joseph in Harris County District Court alleging family violence. See TEX. FAM. CODE ANN. §§ 81.001 ("A court shall render a protective order ... if the court finds that family violence has occurred and is likely to occur in the future."), 83.001(a) (authorizing temporary ex parte protective order if court finds "that there is a clear and present danger of family violence ... without further notice to the individual alleged to have committed family violence and without a hearing"). The trial court issued a temporary ex parte protective order and ordered Joseph to appear on March 7, 2018, and show cause that a protective order should not issue against him.

The return of service, pictured below, was attached to the citation and is at issue in this case.¹ The notary signed and dated the return.

Attached to the return is an invoice from Calcasieu Parish Sheriff's Office, a service of process information sheet, and an envelope addressed to the Harris County District Attorney's Office. The invoice, which is on Calcasieu Parish Sheriff's Office letterhead, includes fees for the notary and citation with the notations, "Personal to Ronald Joseph on 02/26/2018 by 75 DuBrock" and "Britini Jeavon Jack vs Ronald Joseph[.]" The invoice payee is Tony Mancuso, Calcasieu Parish Sheriff's Office, with an address in Lake Charles, Louisiana. The information sheet includes Joseph's identifying information, address, and employment information. The envelope addressed to the Harris County District Attorney's Office bears the return address for the Calcasieu Parish Sheriff's Office.

On March 7, 2018, the trial court continued the hearing scheduled for that day until March 21 and extended the temporary protective order for twenty days because the return of service had not been on file with the court for ten days.² See TEX. R. CIV. P. 107(h) (prohibiting default judgment when proof of service had not been on file with clerk of court for ten days before entry of judgment). Joseph did not appear at the hearing on March 21, and the trial court signed a default protective order. The order stated that Joseph was "duly and properly cited" and "duly and properly served with the application and notice of the hearing" but "did not appear and wholly made default." The order found that "family violence has occurred and that family violence is likely to occur again in the future, and that Respondent, RONALD JOSEPH, has committed family violence." The order prohibited Joseph from taking certain actions regarding Jack and her minor children, and it assessed him costs and attorney's fees to be paid to Harris County.

In December 2018, Joseph filed a petition for bill of review challenging the default protective order. The sole ground raised in his petition was that DuBrock, the serving officer, did not sign the return of service, thereby making the protective order void due to improper service of citation. Joseph's petition detailed the facts and legal authority that he relied on to challenge the default protective order. Joseph attached to his petition the records from the prior proceeding that we discussed above: (1) the temporary protective order and show cause order; (2) the citation and return of service, which included the Calcasieu Parish Sheriff's Office invoice for service and notary fees, information sheet, and return envelope; (3) the March 7 order extending the temporary protective order; and (4) the default protective order. Jack, still represented by the Harris County District Attorney's Office, filed an answer with a general denial and a request for costs and attorney's fees.

In January 2019, Joseph filed a traditional motion for summary judgment on the ground that DuBrock did not sign the return of service, rendering the default protective order void. Joseph attached the same documents to his motion that he had attached to his petition.

The trial court held a brief hearing. Initially, the court stated that it had reviewed Joseph's petition and motion and was inclined to grant the bill of review. However, the State argued that a law enforcement officer "sign[ed] his name Mike DuBrock of Lake Charles, Calcasieu Parish, Louisiana" "above the line where it says ‘Deputy,’ " which complied with the requirement in Texas Rule of Civil Procedure 107 that an officer "must sign the return." See TEX. R. CIV. P. 107(e). Joseph countered that the officer only "wrote his name."

After reading excerpts of Rule 107 into the record, the trial court stated that it believed the dispute was whether the officer's handwritten, printed name on the return constituted a signature, and it disagreed with Joseph that the officer did not sign the return: "To me it looks like he signed it." The trial court stated that it was "going to reverse [itself]" from its initial inclination to grant Joseph's bill of review because DuBrock's signature appeared to be valid and, therefore, the return complied with Rule 107. Before the trial court ruled, however, Joseph argued that he had established that DuBrock's signature was invalid, but he requested a hearing to provide evidence. The trial court disagreed with Joseph, but the court ordered him to file a supplemental brief addressing the issue so that the court could "look at the case law ... and see exactly what [Joseph's] argument is as to why this doesn't qualify as a signature." The trial court told Joseph, "And if your brief convinces me that you need a hearing on this matter, then I will set it for a hearing."

Joseph filed a supplemental brief generally arguing that "[t]he return of service ... is not signed as that term is understood under Texas law," that DuBrock did not identify his principle, that DuBrock did not intend his printed name to be a signature because he also printed "CPSO (15 miles)" next to his name, and that the notary did not fill in DuBrock's name in the notary certification. Joseph did not attach evidence to his supplemental brief, and he did not make a further request for an evidentiary hearing.

On March 28, 2019, the trial court entered an order denying Joseph's bill of review and motion for summary judgment. This timely appeal followed.

Bill of Review

In his first issue, which includes two subparts, Joseph argues that the trial court erred in denying his bill of review because he was not properly served with process in the protective order proceeding. Joseph argues that service was improper because DuBrock did not sign the return of service or he did not sign the return in his official capacity.

A. Standard of Review

We review a trial court's ruling on a bill of review for abuse of discretion, indulging every presumption in favor of the court's ruling. Moore v. Brown , 408 S.W.3d 423, 432 (Tex. App.—Austin 2013, pet. denied) ; Xiaodong Li v. DDX Grp. Inv., LLC , 404 S.W.3d 58, 62 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The trial court abuses its discretion only if it acted in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. Xiaodong Li , 404 S.W.3d at 62.

B. Governing Law

A bill of review is "a direct attack on a judgment that is no longer appealable or subject to a motion for new trial." Valdez v. Hollenbeck , 465 S.W.3d 217, 226 (Tex. 2015) (quoting Frost Nat'l Bank v. Fernandez , 315 S.W.3d 494, 504 (Tex. 2010) ); see TEX. R. CIV. P. 329b(f) ("On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law...."). To obtain an equitable bill of review, the petitioner must generally plead and prove: (1) a meritorious claim or defense to the judgment; (2) which the petitioner was prevented from making by official mistake or by the opposing party's fraud, accident, or wrongful act; (3) unmixed with any fault or negligence on the petitioner's own part. Valdez , 465 S.W.3d at 226 (citations omitted).

When, however, a petitioner's sole claim is that service of process was improper, he is relieved of showing the first two elements and need only prove the third element: that judgment was rendered unmixed with the...