Court of Appeals of Texas,

Corpus Christi–Edinburg.

Charles SEARS

v.

HIGHLANDS INSURANCE COMPANY.

No. 13–97–135–CV.

|

June 25, 1998.

Attorneys & Firms

Bradford M. Condit, for Charles Sears.

John S. Warren, for Highland Insurance Company.

Before Justices DORSEY, HINOJOSA and RODRIGUEZ.

OPINION

Opinion by Justice HINOJOSA.

*1 Appellant, Charles Sears, appeals from a default judgment rendered in favor of appellee, Highlands Insurance Company (“Highlands”). Eight months after a default judgment was rendered against him, Sears filed a bill of review seeking to set aside the default judgment. The trial court denied his request for relief and overruled his motion for new trial. By three points of error, Sears contends the trial court erred by holding that service of process was proper, by requiring him to plead and prove a meritorious defense, and by holding that he did not prove a meritorious defense. We affirm.

In February 1996, Highlands obtained a no-answer default judgment against Sears in a suit on a sworn account. Sears received notice of the default judgment “sometime after April 1996.” In September, he filed his original bill of review, attacking the default judgment on the ground that the trial court had no jurisdiction because of defective service of process.

Sears acknowledged service of the citation. He complains, however, that the process server was not authorized to serve him and that return on the citation is defective because the server’s name is written as “Nora Oropez” rather than “Nora Lynn Oropez.” Because the citation was defective, he contends, the trial court erred by requiring him to plead and prove a meritorious defense and by finding that he failed to prove a meritorious defense.

Normally, a petitioner in a bill of review must plead and prove: (1) that he has a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident, or wrongful act of the opposite party, and (3) unmixed with any fault or negligence on his part. Baker v. Goldsmith, 582 S.W.2d 404, 406–07 (Tex.1979). When a petitioner proves that he was not served with process, he does not need to prove fraud, accident or wrongful act of the opposite party, Texas Indus. Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975), nor does he need to prove a meritorious defense. See Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 86–87, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988). However, the requirement that the petitioner be without fault or negligence in allowing the default judgment to be taken against him has not been relaxed. See Axelrod R & D, Inc. v. Ivy, 839 S.W.2d 126, 128 (Tex.App.-Austin 1992, writ denied) (improper service conceded and court performed negligence analysis for bill of review). Also, a petitioner can concede the issue of service. See Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex.1990).

In his testimony at the bill of review hearing, Sears judicially admitted he was served with citation in the underlying suit on January 12, 1996, and that he understood he was being sued. He explained his failure to answer by saying, “[It was] the first time I have ever been served with a lawsuit, so I really didn’t know how to respond.”

We hold Sears’ excuse is insufficient as a matter of law. Ignorance or mistake of the law is no excuse. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 237 (1961). By admitting that he was “personally served with citation,” Sears conceded the issue of defective service. Compare Wilson, 800 S.W.2d at 837 (appellee acknowledged only receipt of papers, not service).

*2 Once he admitted service, Sears had to prove the requirements of an ordinary bill of review, including a meritorious defense and absence of fault or negligence on his own part. The record reflects that Sears offered no evidence of a defense at the bill of review hearing. Instead, he concentrated on his contention that service of process was defective. Sears acknowledged he did not take any action in the underlying suit until he was served with a motion for contempt some eight months after the trial court signed the default judgment against him. He then hired an attorney to represent him in court.

The trial court subsequently considered and denied Sears’ motion for a new trial on his bill of review. The underlying case is a suit on a sworn account, but neither Highlands’ petition nor Sears’ answer is in the record before us. The only evidence of a defense is found in Sears’ testimony at the hearing on his motion for new trial. Sears testified that he had contracted with Highlands for workers’ compensation insurance coverage for one employee of one company for one year. After that one year, Highlands extended the policy’s coverage to a second company and eight additional employees without Sears’ consent. Sears refused to pay the premiums. No insurance policy or other documents were offered into evidence. Although he admitted Highlands had not prevented him from raising a defense and offering his evidence before the default judgment was taken against him, Sears offered no explanation for his failure to present it sooner.

The trial court had the advantage of being able to review the files in this case and the underlying case and the documents therein. A petitioner for bill of review is required to show his defense is meritorious. The trial court found Sears failed to meet his burden. From the record before us, we cannot say it erred in doing so.

In addition to failing to take action in response to acknowledged service, freedom from negligence encompasses whether the defendant exercised due diligence in availing himself of all legal remedies against the former judgment. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989); Magan v. Hughes Television Network, Inc., 727 S.W.2d 104, 105 (Tex.App.-San Antonio 1987, no writ). Highlands raises the question of whether Sears was entitled to pursue a bill of review as an appropriate form of relief. Numerous cases recite the requirement that a party must exercise diligence in pursuing all legal remedies against the former judgment before initiating a bill of review action. See, e.g., Tice, 767 S.W.2d at 702; Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex.App.-Houston [1st Dist.] 1992, writ denied); Axelrod, 839 S.W.2d at 128; Carroll v. Carroll, 580 S.W.2d 410, 412 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ); Griffith v. Conard, 536 S.W.2d 658, 661 (Tex.Civ.App.-Corpus Christi 1976, no writ). A lack of diligence may be a determinative factor in denying a bill of review, when a party has neglected to utilize other means for attacking a judgment, such as a motion for a new trial or writ of error, despite his ability to utilize them. French v. Brown, 424 S.W.2d 893, 895 (Tex.1967) (appellant failed to seek new trial); Lawrence v. Lawrence, 911 S.W.2d 443, 448 (Tex.App.-Texarkana 1995, writ denied) (appellant failed to pursue any remedies other than bill of review); Hesser, 842 S.W.2d at 765 (petitioner failed to file writ of error, though it was available).

*3 The record before us does not show the exact date that Sears learned of the default judgment, although he did acknowledge that it was “sometime after April” 1996, when he received post-judgment interrogatories. Furthermore, Highlands pointed out in its appellate brief, without subsequent controversion by Sears, that the trial court’s file reflects service of at least three sets of motions and documents prior to expiration of the six-month period. It appears that, in addition to negligently failing to answer the citation, Sears also failed to diligently pursue his other available remedies before filing a petition for a bill of review.

We conclude the trial court correctly denied Sears’ request for bill of review relief because he (1) judicially admitted he was served with citation, (2) failed to take any responsive action until eight months after he was served with citation, (3) allowed the default judgment to be entered through his inaction, and (4) failed to plead and prove a meritorious defense at the bill of review hearing. Accordingly, we hold the trial court did not err in refusing to grant Sears’ request for bill of review relief. Appellant’s first, second, and third points of error are overruled.

We affirm the judgment of the trial court.