Chief Justice                                                                                                        Clerk
James T. Worth en                                                                                                    Cathy S.Lusk

                                     Twelfth Court of Appeals
Justices                                                                                                             Chief Staff Attorney
Sam Griffith                                                                                                         Margaret Hussey
Diane DeVasto




           Wednesday, August 31, 2005


           Mr. Steven B. Thorpe                                            Mr. David W. Clawater
           Thorpe, Hatcher &                                               Cruse Scotthenderson& Allen LLP
           Washington, LLP                                                 2777 Allen Parkway
           2929 Carlisle Street                                            7th Floor
           Suite 250                                                       Houston, TX 77019
           Dallas, TX 75204

           RE:       Case Number:                       12-04-00314-CV
                     Trial Court Case Number:           2002-272-A

           Style: Mitch Alford
                     v.

                     Robert W. Cary, M.D.

           Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
           numbered cause. Also enclosed is a copy of the court's judgment.

           Very truly yours,

           CATHY S. LUSK, CLERK


           By: KttbUMu Mfl.
                 Katrina McClenny, Chief Deputy Clerk

           CC:            Hon. David Scott Brabham
                          Hon. John Ovard
                          Ms. Barbara Duncan




                 1517West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
 Serving Anderson, Cherokee, Gregg, Henderson, Hopkins, Houston, Kaufman, Nacogdoches, Panola, Rains, Rusk, Sabine, San Augustine, Shelby,
                                                Smith Upshur, Van Zandt and Wood Counties
                                                       www.i2thcoa.courts.state.t3c.us
                                     NO. 12-04-00314-CV


                          IN THE COURT OF APPEALS


             TWELFTH COURT OF APPEALS DISTRICT


                                         TYLER, TEXAS
MITCH ALFORD,                                            §    APPEAL FROM THE 188TH
APPELLANT


V.                                                       §    JUDICIAL DISTRICT COURT OF



ROBERT W. CARY, M.D.,                                    §    GREGG COUNTY, TEXAS
APPELLEE
                                       MEMORANDUM OPINION

       Mitch Alford appeals the granting of a bill of review in favor of Robert W. Cary, M.D. In
three issues, Alford contends the trial court erred in granting the bill of review while Cary contends
in three cross-issues that it did not. We reverse and remand.


                                            Procedural History

       Alford filed a lawsuit against Cary on August 18, 2000. Six days later, a Gregg County
deputy sheriff personally served Cary with citation in Alford's lawsuit. Attached to the citation was
a copy of Alford's original petition. The citation stated, in part, as follows:

       To:       Dr. Robert Cary
                 805 Medical Circle Drive
                 Longview, Texas 75605

       Defendant in the hereinafter styled and numbered cause: 2000-1792-A

                 You are hereby commanded to appear before the 188th District Court of Gregg County,
       Texas, to be heldat the courthouse of saidCounty in the Cityof Longview, Gregg County, Texas by
       filing a written answer to thePetition of Plaintiff at or before 10:00 o'clock A.M. of theMonday next
       after the expiration of 20 days after the date of service hereof, a copy of which accompanies this
       Citation,. . .
The citation further included the following notice:


                                           NOTICE TO DEFENDANT


       You have been sued. You may employ an attorney. If you or your attorney do not file a written
       answer with the clerk who issues this Citation by 10:00 A.M. on the Monday next following the
       expiration of twenty days after you were served this Citation and Petition, a default Judgment may be
       taken against you.


       Cary did not answer or appear. On January 8,2001, the trial court signed a default judgment
on liability only against Cary. On February 5,2001, the trial court signed an order of final judgment
against Cary awarding Alford $1,951,188.00 in damages. On January 31, 2002, Cary filed an
original petition for a bill of review asking the trial court to vacate the default and final judgments
rendered against him. He attached the following affidavit to his petition for bill of review:

                                  AFFIDAVIT OF ROBERT W. CARY, M.D.
       STATE OF TEXAS              §
                                   §
       COUNTY OF GREGG             §        KNOWN ALL MEN BY THESE PRESENTS:

                Before me, the undersigned notary, on this day, personally appeared Robert W. Cary, M.D.,
       a person whose identity is known to me. After I administered an oath to him, upon his oath, he stated
       as follows:


        1.      My name is Robert W. Cary. I am over the age of eighteen years and am fully qualified to
                make this affidavit and have personal knowledge of the facts recited herein.

       2.       I have been served with citation in lawsuits in which I have been sued on other occasions.
                On each of those occasions, I followed the established office procedure at Diagnostic Clinic.
                That procedure involves providing the citation to the business manager of Diagnostic Clinic
                who, in return, forwards the citation to the appropriate insurance carrier. In each of the prior
                occasions, I followed this procedure and my insurance carrier provided me a defense, hiring
                a lawyer for me. On no occasion have I deliberately disregarded a citation or lawsuit, nor
                have I ever been consciously indifferent as to whether an answer was filed and my interests
                were protected. Whenever I have understood that I was being sued, I have always taken the
                necessary steps and measures to defend myself.

       3.       I do not recall being served with citation or the Plaintiffs Petition in Cause No. 2000-1977-A
                styled MitchAlfordv. Dr. Robert Cary in the 188th District Court of Gregg County, Texas.
                If I had realized I had been sued, I would have followed procedure outlined above. I had
                medical malpractice insurance in place and my carrier would have provided me a defense and
                hired a lawyer to represent me as they had in the past. I had no reason to intentionally not
                defend myself or be indifferent regarding filing an answer. I have every reason to believe
                that I wouldbe successfulif I wereable to defend myselfin this matterand I am certainlynot
                indifferent about it, nor would I have been in August of 2000, had I realized at that time that
                I had been sued. I have never deliberatelydisregarded or been indifferentabout defending
                myself when a lawsuit has been brought against me. I believe Mr. Alford's lawsuit is
                  frivolous and unfounded, so I had everything to gain and nothing to lose by filing an answer
                  and defending myself. My failure to file an answer was a result of a mistake, not an
                  intentional act or conscious indifference.


         FURTHER AFFIANT SAYETH NOT.


                                                                                  (SI
                                                                          ROBERT W. CARY, M.D.
                                                                         (Jurat omitted)

         On June 3,2002, Cary filed a motion for summary judgment on his petition for bill of review.
On August 23, 2002, the trial court signed an order granting Cary's summary judgment motion,
setting aside the prior default and final judgments in favor of Alford, and granting a new trial on the
merits. Two years later, on August 30,2004, the trial court entered a take-nothing judgment in favor
of Cary and against Alford. Alford timely filed a notice of appeal of the summary judgment granting
Cary's bill of review and setting aside Alford's default and final judgments against Cary.1
                                                       ISSUES

         In three issues, Alford attacks the summary judgment. In his first issue, he contends that the
trial court erred in granting summary judgment on the bill of review because Cary failed to satisfy
the required elements established by the Texas Supreme Court in Alexander v. Hagedorn, 148 Tex.
565, 226 S.W.2d 996 (1950). In his second issue, he contends that the trial court erred because Cary
failed to satisfy the relaxed requirements for setting aside a final judgment established by the Texas
Supreme Court in Hanks v. Rosser, 378 S.W.2d 31 (Tex. 1964). In his third issue, Alford contends
that the trial court erred because granting the bill of review was contrary to Rule 239a of the Texas
Rules of Civil Procedure.

         In the first of three cross-issues, Cary contends the bill of review was proper because Alford
did not present evidence to support the damages awarded in the final judgment of February5,2001.
In his second cross-issue, Cary contends he was not afforded due process. In his third cross-issue,
Cary contends that if the trial court's ruling on the bill of review is reversed, we should remand the
case for a trial on the merits.




           There is no dispute between the parties that the order granting Cary's bill of review and setting aside
Alford'sdefault and final judgments was interlocutory andcouldnot be appealed until the take-nothing judgment
was entered in Cary's favor on August 30, 2004.
                                       Standard of Review

        The trial court granted Cary's bill of review on a traditional motion for summary judgment.
In reviewing a trial court's granting of summary judgment, we apply the following standards: 1) the
movant for summary judgment has the burden of showing that there is no genuine issue of material
fact and that he is entitled to judgment as a matter of law; 2) in deciding whether a disputed material
fact issue exists, we accept as true the evidence favorable to the nonmovant; and 3) we indulge every
reasonable inference in favor of the nonmovant and resolve any doubts in his favor. See Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). For a party to prevail on a motion for
summary judgment, he must conclusively establish the absence of any genuine question of material
fact and his entitlement to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Once the movant
has established a right to summaryjudgment, the nonmovant has the burden to respond to the motion
for summary judgment and present to the trial court any issues that would preclude summary
judgment. See e.g., City of Houston v. Clear Creek Basin Authority , 589 S.W.2d 671, 678-79
(Tex.1979). All theories in support of or in opposition to a motion for summaryjudgment must be
presented in writing to the trial court. See TEX. R. Civ. P. 166a(c). We will reverse the summary
judgment and remand the cause for a trial on the merits if the summary judgment was improperly
granted. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828-29 (Tex. 1970).


                                          Bill of Review

        Alford's first two issues relate to the proper standard for determining whether Cary was
entitled to summary judgment on his petition for bill of review. We will address those issues
together.

Applicable Law
       Although the bill of review is an equitable proceeding, before a litigant can successfully
invoke it to set aside a final judgment, he must allege and prove 1) 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 oppositeparty, 3) unmixed with any fault or negligence of his own.
Alexander, 148 Tex. at 568-69, 226 S.W.2d at 998. Alford contends that these are the elements
which Carymust establishbefore he wasentitledto a summary judgment granting the bill of review.
However, Alford concedes that the Texas Supreme Court later relaxed these standards. See Hanks,
378 S.W.2d at 34-35. In Hanks, our supreme court held that
        assuming that the failure to file an answer is not intentional or the result of conscious indifference,.. .if
        a litigant is misled or prevented from filing a motion for new trial by misinformation of an officer of
        the court acting within his official duties, and this misinformation is given to the party or his counsel
        within the ten-day period for filing the motion for new trial so as to bring about the failure to file a
        motion for new trial in time, the trial court, upon finding that the party has a meritorious defense and
        that no injury will result to the opposite party, may grant the bill of review.


Id. at 35. Cary contends that the failure of the district clerk to serve him with the default and final
judgments was misinformation. See Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240,
245 (Tex. 1994). Therefore, Cary argues, theHanks standard should be applied here because of the
district clerk's failure to give him notice of the default and final judgments. We agree.
        The Amarillo Court of Appeals, in an exhaustive analysisof the supreme court cases regarding
the bill of review, determined that the Hanks v. Rosser opinion effectively put the bill of review
plaintiff (such as Cary) in the same position he would have been in had he received correct
information from the court clerk and filed a timely motion for new trial.                      McDaniel v. Hale, 893
S.W.2d 652, 660 (Tex. App.-Amarillo 1994, writ denied). Therefore, in examining whether there
was any fault or negligence on the part of the bill of review plaintiff, fault or negligence should be
measured by the standard for negligence of the non-answering defendant in a motion for new trial
situation rather than the standard of negligence for a complainant in a typical bill of review
proceeding. Id.
        The rule is well established in Texas that a default judgment should be set aside and a new
trial ordered in any case in which 1) the failure of the defendant to answer beforejudgment was not
intentional or the result of conscious indifference on his part, but was due to a mistake or an
accident; 2) provided the motion for a new trial sets up a meritorious defense and 3) is filed at a time
when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.
Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939). To be
entitled to summary judgment, Cary was required to establish each of these elements as a matter of
law.

Conscious Indifference

       In determining whether a party acted intentionally or with conscious indifference, we look
to the party's knowledge and acts. Continental Cas. Co. v. Davilla, 139 S.W.3d 374, 382 (Tex.
App.-Fort Worth 2004, pet. denied). The defaulting party satisfies its burden if the factual assertions
in the defaulting party's supporting affidavits are not controverted and if the affidavits set forth facts
that, if true, negate intent or conscious indifference. Dir., State Employees Workers' Comp. Div.
v. Evans, 889 S.W.2d 266,269 (Tex. 1994). However, conclusory allegations are insufficient//o#
Atherton Indus, v. Heine, 835 S.W.2d 80, 82 (Tex. 1992). Where the petitioner's allegations are
legally insufficient, relief by bill of review is inappropriate. Brooks v. Associates Financial Servs.
Corp., 892 S.W.2d 91, 93 (Tex. App.-Houston [14th Dist.] 1994, no pet.). Conscious indifference
can be defined as "the failure to take some action which would have been indicated to a person of
reasonable sensibilities under the same or similar circumstances."         Freeman v. Pevehouse, 79

S.W.3d 637, 647-48 (Tex. App.-Waco 2002, no pet.) (citations omitted). Conscious indifference
requires more than negligence; some excuse, but not necessarily a good excuse, is enough to show
a lack of intentional conduct or conscious indifference. Perry v. Stanley, 83 S.W.3d 819, 827 (Tex.
App.-Texarkana 2002, no pet.).
Application of Law to Facts
        As summary judgment evidence that he was not consciously indifferent, Cary provided his
affidavit addressing his failure to answer Cary's lawsuit. We first note that Cary does not deny being
served with citation. The record before us shows that a Gregg County sheriff's deputy personally
served Cary with citation at 9:30 a. m. on August 24, 2000 at 805 Medical Circle Drive, Longview,
Texas, which is Cary's office address. The deputy sheriff's return of citation is prima facie evidence
that Cary was served. Primate Constr., Inc. v. Silver, 884 S.W.2d 151,152 (Tex. 1994).           Further,
Cary acknowledges that he has been served with citation in other lawsuits and describes the

procedure he followed then. He also states what he would have done if he had realized he had been
served with citation in a lawsuit. However, Cary does not describe any action he took after he was
served with citation nor does he describe his mental state at the time he was served or thereafter. He

merely states, "I do not recall being served."
       "Recall" can mean "to remember." The American Heritage College Dictionary 1139

(3d ed. 2002). "To remember" can be defined as "to retain in the memory" or "to recall to the mind
with effort." Id. at 1152. Cary does not show making any effort or expending any energy to retain
knowledge of the lawsuit when served with this citation. Our state's court system is designed to
handle conflicts between citizens of Texas. When a citizen is hailed into court, as Cary was, that is
a serious matter and not to be responded to with forgetfulness or indifference. Nonetheless, Cary
has furnished no summary judgment evidence that establishes any other response. Because he failed
to negate conscious indifference as the reason for his failure to answer Alford's lawsuit, Cary also
failed to establish that he was entitled to summary judgment as a matter of law. Therefore, we hold
that the trial court improperly granted Cary's summary judgment motion. Alford's issues one and
two are sustained. Because we have sustained Alford's first two issues, we need not address his third

issue.

                                        Cary's Cross-Issues

         In Cary's third cross-issue, he contends that we should remand this case to the trial court if
we sustain Alford's issues and reverse the summary judgment. We agree. When a trial court grants
a summary judgment, the losing party appeals, and an appellate court finds reversible error in the
judgment, the appellate court's normal action is to reverse the trial court's judgment and remand the
cause to the trial court. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). An exception may
occur when both parties move for summary judgment and one such motion was granted while the
other denied. Id. In the case before us, Alford did not move for a summary judgment in the bill of
review proceeding. When an appellate court determines that the grounds for a summary judgment
are insufficient as a matter of law, judgment cannot be rendered for the appealing party but can only
be remanded to the trial court for further proceedings. Cary's third cross-issue is sustained.
         In his first cross-issue, Cary contends that, at a minimum, the trial court correctly granted a
new trial because the evidence did not support the damage award to Alford. In his second cross-
issue, Cary argues that he was denied due process because he received no notice of the hearing on
damages. Because he was entitled to notice of the hearing, his argument continues, the judgment
is "plainly infirm" and should be set aside. Cary's cross-issues are in effect challenges to the default
and final judgments against Cary. However, the issue in the instant case is whether the trial court
properly granted summary judgment on Cary's petition for bill of review. Issues relating to the
merits of the underlying judgments are not properly before us. Therefore, we decline to address
Cary's remaining cross-issues.


                                                   7
                                          Disposition

       Having sustained Alford's first two issues and Cary's third cross-issue, the summary
judgment granting Cary's bill of review is reversed and the cause remanded to the trial court for
further proceedings consistent with this opinion.


                                                                 JAMES T. WORTHEN
                                                                      Chief Justice




Opinion delivered August 31, 2005.
Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.




                                           (PUBLISH)
                       •



                              COURT OF APPEALS
          TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                       JUDGMENT


                                        AUGUST 31,2005



                                    NO. 12-04-00314-CV

                                       MITCH ALFORD,
                                             Appellant
                                                V.

                                   ROBERT W. CARY, M.D.,
                                             Appellee
                           Appeal from the 188th Judicial District Court
                         of Gregg County, Texas. (Tr.Ct.No. 2002-272-A)
                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being inspected, it is the opinion of the Court that the SUMMARY JUDGMENT OFTHE
Trial Court Granting Robert W. Cary, M.D.'s Bill of Review should be Reversed and

the cause REMANDED for further proceedings consistent with this opinion.
                       It is therefore ORDERED, ADJUDGED and DECREED that the Summary

Judgment of the Trial Court Granting Robert W. Cary, M.D.'s Bill of Review is

REVERSED and the cause REMANDED for further proceedings in accordance with the opinion of this
Court; and that all costs of this appeal be, and the same are, adjudged against the Appellee, ROBERT
W. CARY, M.D., for which let execution issue; and that this decision be certified to the court below

for observance.

                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.




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