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Sung Man Min and Ann Min v. Avila5/6/1999
Appellants, Sung Man Min and Ann Min, appeal a summary judgment granted on limitations after the trial court set aside a default judgment by granting a bill of review. We affirm.
Background
A. The Underlying Case
The Mins sued Avila in May 1994 in Cause No. 633,114, Sung Man Min and Ann Min, Individually and as Next Friends of Mee Min, a Minor. They sought personal-injury damages arising out of a January 1992 automobile collision and moved for default judgment when Avila did not answer. Their motion addressed service on Avila by tracking the recitals in the return of service filed by Harris County Deputy Constable M. G. Hightower, who stated he had served John Manuel Avila at 7:32 a.m. on May 20, 1994, at 444 Harvard # 18, Houston. The Mins' attorney listed 444 Harvard # 18 as Avila's last known address and stated he was not then in the military service, in accordance with 50 U.S.C. App. § 520(1) (1994). The trial court rendered a $108,000 default judgment against Avila on July 28, 1994. The judgment recites Avila was "duly and legally cited to appear," yet "failed to appear and answer and wholly made default."
B. Bill of Review - Default Set Aside
Almost one year later, Avila filed his verified bill of review in this cause to set the $108,000 default judgment aside. Avila denied ever being served with process in Cause No. 633,114, and stated he had no notice of the judgment until May 1995, when a private investigator contacted him and said he had been retained to collect on the judgment. The investigator located Avila at 116 Kendall, Houston, Texas 77003, a different address than alleged in seeking the default judgment. The Kendall address was Avila's home, which he purchased with his wife on September 8, 1992. Avila and his wife each executed affidavits in support of the petition for bill of review and supported those affidavits with copies of the purchasing and real estate lien documents. Avila's petition also described and provided a copy of a June 13, 1995 letter from a deputy constable authorizing levy on Avila's non-exempt property, which prompted him to take immediate action to set the judgment aside by engaging counsel.
The record on appeal contains a full reporter's record of the bench trial of the bill of review, at which Avila and Constable Hightower were the only witnesses. The trial court set the default judgment aside and signed findings of fact and Conclusions of law to support the ruling. These reflect the following:
• Officer Hightower did not serve Avila with the citation in Cause No. 633,114 at 7:32 a.m. on May 20, 1994, at 444 Harvard # 18, Houston, Texas 77007, but instead served an unknown person at that address.
• Avila was not served on May 20, 1994 because he had moved, almost two years before, from the apartment unit at 444 Harvard # 18, Houston, Texas 77007, to a home he purchased at 116 Kendall, Houston, Texas 77003.
• A family with the surname "Licona" lived at 444 Harvard # 18 on May 20, 1994.
• Avila had never returned to 444 Harvard # 18 after he moved to 116 Kendall.
• Avila was not properly served with process and had no notice of the default judgment signed on July 28, 1994 until May 1995, when he acted with due diligence to set the judgment aside. • Avila's failure to answer was unintentional.
• The default judgment against Avila was void and unenforceable because he was never served.
C. Bill of Review - Trial of Underlying Case
The default judgment having been vacated, the bill of review proceeded by reopening the underlying case, with Avila's having made a general appearanc
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