No Back-Up = No Bill of Review

Originally published by Carrington Coleman.

Mitchell v. City of Dallas
Dallas Court of Appeals, No. 05-18-01208-CV (November 20, 2019)
Chief Justice Burns and Justices Molberg and Reichek (Opinion, linked here)
Ken Carroll

A defendant can attack a default judgment through a bill of review after it’s too late to appeal or move for a new trial. Ordinarily, to secure bill-of-review relief, a party must prove (i) he has a meritorious defense (ii) that he was prevented from making because of fraud, accident, or a wrongful act by the opposing party (iii) through no fault or negligence of his own. If the defendant wasn’t served with process, however, that by itself entitles him to relief. But there’s a catch: An officer’s return of service is prima facie proof of service “that cannot be rebutted by the uncorroborated proof of the moving party.”

Here, a private “certified process server” filed a return of service stating he personally served Mitchell at a specified time and place. Mitchell didn’t answer and was defaulted. At trial of the bill of review, Mitchell testified he had not been served. But no other competent evidence corroborated that testimony. Mitchell offered affidavits from two other witnesses that might have cast doubt on service as reported, but those affidavits were properly excluded as hearsay. Consequently, the trial court denied the bill of review. The Dallas Court of Appeals affirmed, because “the testimony of a bill of review plaintiff alone, without corroborating evidence, is insufficient to overcome the presumption [from the return of service] that the [bill-of-review] plaintiff was served.”

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