Affirmed and Opinion filed May 7, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00210-CV

VERNON KENT MAREE AND FRONT ROW PARKING, INC., Appellants
                                         V.
                    BALDEMAR (VAL) ZUNIGA, Appellee

             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                      Trial Court Cause No. 1063505


                                 OPINION
      Two plaintiffs appeal the trial court’s summary judgment dismissing the
petition in which they sought an equitable bill of review against a judgment
rendered after they failed to appear at trial. The appellants have not shown that the
summary-judgment evidence raises a genuine fact issue as to whether no proper
service of process was effected on them or as to whether they diligently pursued all
available and adequate legal remedies, such as a new trial. The appellants have not
shown that the trial court erred in granting summary judgment based on the no-
evidence ground challenging the third equitable-bill-of-review element — lack of
fault or negligence on the appellants’ part. We affirm.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Appellee/defendant Baldemar (Val) Zuniga sued Vernon Kent Maree and
Front Row Parking, Inc. (the “Maree Parties”) in Cause Number 1029606 in
County Civil Court at Law No. 4 in a dispute arising from the sale of 2013 Super
Bowl tickets (“the Zuniga Lawsuit”).1 Zuniga made efforts to serve Maree and
Front Row. According to Maree, Troy Pradia is a Texas attorney who, in October
2013, sought to purchase event tickets from one of Maree’s businesses. Maree
says that in a casual conversation with Pradia, Maree mentioned that someone had
tried to serve papers related to the Zuniga Lawsuit on Maree while Maree was out
of the office, and Pradia suggested that he would look into the matter. Though
Maree appreciated Pradia’s suggestion, Maree maintains that he had no expectation
that Pradia would do anything beyond giving casual advice. Maree claims that
Maree and Pradia discussed nothing further, and Maree never engaged Pradia to
represent him or Front Row. Maree says he soon forgot his conversation with
Pradia, he had no reason to follow up, and he quickly lost contact with Pradia.
Soon after this conversation, Maree moved his businesses to a different location.

       The Maree Parties assert that they never authorized Pradia to appear or file
an answer on their behalf in any proceeding, including the Zuniga Lawsuit. Maree
says that because he never engaged Pradia as an attorney and had no expectation of
engaging Pradia, Maree did not notify Pradia of his changed address.




1
  The statements in this section are based on the allegations in the Maree Parties’ live pleading in
the court below.

                                                 2
       Neither of the Maree Parties signed an engagement letter with Pradia or paid
him a retainer. Pradia, purporting to act as attorney for the Maree Parties, filed an
original answer on their behalf in the Zuniga Lawsuit. Shortly thereafter, the trial
court issued a notice setting a bench trial for June 16, 2014 (the “Trial Date”). The
Maree Parties claim that Pradia never communicated to them that he had filed an
answer on their behalf in the Zuniga Lawsuit or that the trial court had set the case
for trial.
       About four months later, the trial court granted Pradia’s motion to withdraw
as counsel for the Maree Parties, with no new counsel taking Pradia’s place. The
Maree Parties assert that they never received notice of the motion to withdraw, and
that even if they had received notice, the motion did not mention the trial setting or
inform them of the Trial Date.

       The Maree Parties allege on information and belief that Zuniga appeared
through counsel for trial on the Trial Date, and that Zuniga asked the court to sign
a judgment by default for the Maree Parties’ failure to appear at trial. Four days
later, the trial court issued notice that a “hearing” was set for July 16, 2014 (“the
Hearing Date”). In the notice the court did not mention what the court would take
up at the hearing. The Maree Parties assert that they never received notice of the
Hearing Date. The trial court signed a final judgment on July 28, 2014, awarding
Zuniga relief on his claims against the Maree Parties (the “Underlying Judgment”).
In the Underlying Judgment the trial court does not recite when the case was heard.
The Maree Parties assert that they did not receive notice that the trial court had
rendered this judgment and that they only became aware of the judgment when
Zuniga began post-judgment collection efforts.

                             Bill-of-Review Proceeding

       In June 2015, the Maree Parties filed this equitable-bill-of-review

                                          3
proceeding in the trial court, seeking to set aside the Underlying Judgment. In
their live pleading they assert that they were never properly served with process in
the Zuniga Lawsuit and that they never received notice of either the Trial Date or
of the Hearing Date. The Maree Parties claim that they never had an attorney/client
relationship with Pradia and that they did not know that Pradia was purporting to
represent them in the Zuniga Lawsuit. They argue that the notice of trial setting
served on Pradia did not give them notice of the trial setting.

      The Maree Parties further allege that they did not receive any notice of the
Underlying Judgment from the trial court clerk. In the trial court the Maree Parties
asserted that they had meritorious defenses to the Zuniga Lawsuit that they were
prevented from making by the fraud, accident, or wrongful act of the opposing
party or by official mistake, unmixed with any fault or negligence on their part. In
addition, the Maree Parties claimed that they did not have to prove the traditional
elements necessary to obtain bill-of-review relief because the Maree Parties were
never properly served with process and because the Maree Parties never received
notice of the trial setting or of the Underlying Judgment.

      Zuniga filed a summary-judgment motion asserting the following grounds:

      (1) There is no evidence that either of the Maree Parties has a meritorious
      defense to the Zuniga Lawsuit;
      (2) There is no evidence that either of the Maree Parties were prevented
      from making a meritorious defense by the fraud, accident, or wrongful act of
      the opposing party or by official mistake;
      (3) There is no evidence of an absence of fault or negligence on the part of
      either of the Maree Parties; and
      (4) The summary-judgment evidence proves as a matter of law that the
      Maree Parties’ fault or negligence was a cause of the Underlying Judgment
      and thus the Maree Parties cannot establish the third element necessary for
      bill-of-review relief.


                                          4
       The Maree Parties filed a response containing Maree’s declaration, with two
attachments (a copy of Maree’s driver license and a handwritten document dated
March 16, 2013), and an appendix containing fourteen documents purportedly filed
in the Zuniga Lawsuit.
       The trial court granted Zuniga’s summary-judgment motion without
specifying the grounds and dismissed the Maree Parties’ bill-of-review suit. The
Maree Parties appealed.2

                               II. ISSUES AND ANALYSIS

       In four appellate issues, the Maree Parties assert that the trial court erred in
granting summary judgment because the summary-judgment evidence raised a
genuine fact issue as to whether (1) Pradia lacked authority to appear on behalf of
the Maree Parties in the Zuniga Lawsuit; (2) the Maree Parties were not served
with process in the Zuniga Lawsuit; (3) the Maree Parties did not have notice of
the trial setting in the Zuniga Lawsuit; and (4) the Maree Parties were not served
with notice of the Underlying Judgment.

       In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovants to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Marathon Petroleum Co. LP v. Cherry
Moving Co., Inc., 550 S.W.3d 791, 797 (Tex. App.—Houston [14th Dist.] 2018, no
pet.). In reviewing a no-evidence summary judgment, we ascertain whether the
nonmovants pointed out summary-judgment evidence raising a genuine issue of

2
  This is the second appeal by the Maree Parties in this case. In the first appeal this court
concluded that the trial court erred in rendering judgment following a Baker v. Goldsmith
hearing. See Maree v. Zuniga, 502 S.W.3d 359, 366–67 (Tex. App.—Houston [14th Dist.] 2016,
no pet.).
                                             5
fact as to the essential elements attacked in the no-evidence motion. Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–08 (Tex. 2002). In our de novo
review of a trial court’s summary judgment, we consider all the evidence in the
light most favorable to the nonmovants, crediting evidence favorable to the
nonmovants if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-
minded jurors could differ in their conclusions in light of all of the summary-
judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755
(Tex. 2007). When, as in this case, the order granting summary judgment does not
specify the grounds upon which the trial court relied, we must affirm the summary
judgment if any of the independent summary-judgment grounds is meritorious.
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

A. Did the trial court err in granting summary judgment because the
summary-judgment evidence raises a genuine fact issue as to whether each of
the Maree Parties was not properly served with process?
      A bill of review is an independent, equitable proceeding brought by a party
to a prior action seeking to set aside a judgment in that action that is no longer
subject to challenge by a motion for new trial or a direct appeal.        Baker v.
Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). Ordinarily, to be entitled to relief in
an equitable-bill-of-review proceeding, the plaintiff must plead and prove that the
plaintiff has (1) a meritorious claim or defense, (2) which the plaintiff 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
plaintiff’s part. See Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015). In
his summary-judgment motion, Zuniga asserted that there is no evidence as to each
of these elements, including no evidence of an absence of fault or negligence on

                                        6
the part of either of the Maree Parties. On appeal, the Maree Parties do not assert
that the summary-judgment evidence raises a genuine issue as to each of the three
elements. Instead, the Maree Parties rely on Caldwell v. Barnes and its progeny,
which gives an exception to the general rule requiring proof of these three
elements. See Caldwell v. Barnes, 154 S.W.3d 93, 96–97 (Tex. 2004).
       In Caldwell, the Supreme Court of Texas concluded that if an equitable-bill-
of-review plaintiff carries the burden of proving that the plaintiff was not served
with process, the plaintiff need not prove the first two elements and the law will
deem the plaintiff to have established conclusively the third element.3 See id. On
appeal and in the trial court, the Maree Parties have cited this rule and argued that
because the summary-judgment evidence raises a fact issue as to whether they
were served with process in the Zuniga Lawsuit, they need not prove the first two
elements, and the law will deem them to have proved the third element. See id.

       At times in their argument, the Maree Parties assert that “they were not
properly served with process,” rather than “[they] were not served with process.”
It appears that the Maree Parties are asserting that if they carry the burden of
proving that they were not properly served with process in the Zuniga Lawsuit,
then they need not prove the first two elements, and the law will deem them to
have conclusively established the third element. We presume for the sake of
argument that this assertion correctly reflects Texas law. We also presume, without
deciding, that (1) the Maree Parties raised a genuine fact issue as to whether Pradia
had no attorney/client relationship with either of them and no authority to represent
them in the Zuniga Lawsuit and (2) if Pradia lacked authority to represent the

3
  A plaintiff need not effect service of process on a defendant who has appeared in the case or
waived service of process. See Tex. R. Civ. P. 121, 124. Presumably, the rule in Caldwell does
not apply in cases in which the equitable-bill-of-review plaintiff made an appearance or waived
service of process in the prior case. The Caldwell case does not address who has the burden of
proof in this regard, and we need not address this issue to dispose of this appeal.

                                              7
Maree Parties in the Zuniga Lawsuit, the answer Pradia filed did not bind either of
the Maree Parties. In addition, we presume that the Caldwell line of cases applies
to today’s case, even though the Underlying Judgment is not a no-answer default
judgment because Pradia purported to file an answer on behalf of the Maree
Parties, and thus Zuniga did not obtain a no-answer default judgment. Under these
presumptions the trial court erred in granting summary judgment if the Maree
Parties carried the burden of raising a genuine fact issue that each of them was not
properly served with process in the Zuniga Lawsuit.
      1.     Service of Process on Front Row
      The summary-judgment evidence contains a document purporting to be a
citation addressed to Front Row and a certificate from the Texas Secretary of State
certifying that (1) the Texas Secretary of State’s office received a copy of a citation
and Plaintiff’s First Amended Petition in the Zuniga Lawsuit on June 3, 2013; (2)
two days later the Texas Secretary of State’s office forwarded a copy to Front Row
through its registered agent Kent Maree by certified mail, return receipt requested;
and (3) the Texas Secretary of State’s office received the signed return receipt on
July 13, 2013. The Maree Parties submitted these two documents as summary-
judgment evidence in the trial court below, and they rely on the documents in their
appellate briefing. In this part of the opinion, we presume for the sake of argument
that these two documents are authenticated and competent summary-judgment
evidence. In his summary-judgment affidavit, Maree stated, “I have no specific
recollection as to how I became aware of the [Zuniga Lawsuit].” However, Maree
testified he believes “that sometime during July 2013 [he] received a copy of the
papers in the [Zuniga Lawsuit], addressed to Front Row Parking, Inc. from the
Texas Secretary of State.”

      On appeal, the Maree Parties assert only one argument as to why service of


                                          8
process on Front Row was improper: the citation and the certificate from the
Secretary of State fail to show that the address to which the Secretary of State’s
office sent the citation and petition was Front Row’s most recent address on file
with the Secretary of State. The Maree Parties assert that this failure means that
the service of process on Front Row did not comply with section 5.253 of the
Texas Business Organizations Code, under which “[t[he notice must be . . .
addressed to the most recent address of [Front Row] on file with the secretary of
state.” Tex. Bus. Orgs. Code Ann 5.253(b) (West, Westlaw through 2017 1st
C.S.). The Maree Parties cite no case stating that section 5.253 requires that either
the citation or the certificate from the Secretary of State must show that the address
to which the Secretary of State’s office sent the citation and petition was the
defendant’s most recent address on file with the Secretary of State.

      We review the trial court’s interpretation of applicable statutes de novo. See
Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989).                 In
construing a statute, our objective is to determine and give effect to the
Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527
(Tex. 2000). If possible, we must ascertain that intent from the language the
Legislature used in the statute and not look to extraneous matters for an intent the
statute does not state.     Id.   If the meaning of the statutory language is
unambiguous, we adopt the interpretation supported by the plain meaning of the
provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505
(Tex. 1997). We must not engage in forced or strained construction; instead, we
must yield to the plain sense of the words the Legislature chose. See id. Under the
unambiguous meaning of the statute’s language, the Secretary of State’s office had
to send the citation and petition to Front Row’s most recent address on file with the
Secretary of State, but the statute does not require either the citation or the


                                          9
certificate issued by the Secretary of State to show that the address to which the
documents were sent was Front Row’s most recent address on file with the
Secretary of State. See Tex. Bus. Orgs. Code Ann 5.253. Thus, the Maree Parties’
sole argument as to why service of process on Front Row was not proper lacks
merit based on the statute’s plain text.

      In addition, absent fraud or mistake, the Secretary of State’s certificate
constitutes “conclusive evidence that the Secretary of State, as agent of [Front
Row] received service of process for [Front Row] and forwarded the service as
required by the statute.” Capital Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399,
401 (Tex. 1986); MG Int’l Menswear, Inc. v. Robert Graham Designs, LLC, No.
05-18-00517-CV, 2019 WL 642724, at *2 (Tex. App.—Dallas Feb. 15, 2019, no
pet. h.) (mem. op.). The Maree Parties have not alleged or shown fraud or mistake.

      The Maree Parties have not shown that the summary-judgment evidence
raises a genuine fact issue that no proper service of process was effected on Front
Row in the Zuniga Lawsuit.

      2.     Service of Process on Maree
      On appeal, the Maree Parties try to show that service of process on Maree
was not proper based on a statement about the clerk’s record in the Zuniga Lawsuit
and based on Maree’s affidavit testimony.
      The Maree Parties assert that “the record in the [Zuniga Lawsuit] reflects no
return of service on file with respect to Maree.” The Maree Parties submitted
fourteen documents that purport to be copies of items from the clerk’s record in the
Zuniga Lawsuit. Yet, the Maree Parties did not purport to submit or prove all of
the items from the clerk’s record in the Zuniga Lawsuit, and no witness testified as
to whether the record in the Zuniga Lawsuit contains a return of service as to
Maree.

                                           10
      To authenticate a document, the proponent must “produce evidence
sufficient to support a finding that the item is what the proponent claims it is.”
Tex. R. Evid. 901(a); Wilson v. Fleming, 566 S.W.3d 410, 417 (Tex. App.—
Houston [14th Dist.] 2018, no pet. h.). Some documents are self-authenticating,
such as certified copies of public records or public documents that are sealed and
signed. Tex. R. Evid. 902(2), (4); Wilson, 566 S.W.3d at 417. We presume for the
sake of argument that the certificate from the Texas Secretary of State (the
“Certificate”) is sealed and signed and therefore self-authenticating. See Tex. R.
Evid. 902(2), (4); Wilson, 566 S.W.3d at 417. We now address whether the
documents that purport to be copies of items from the clerk’s record in the Zuniga
Lawsuit other than the Certificate (hereinafter the “Purported Court Documents”)
have been authenticated.

      The Purported Court Documents are unofficial and uncertified, and the
Maree Parties submitted no affidavit, testimony, or other evidence to authenticate
any of these documents. The Purported Court Documents are not sealed and
signed in accordance with Texas Rule of Evidence 902. See Tex. R. Evid. 902.
The Purported Court Documents bear watermarks stating each document is an
“Unofficial Copy.” The Maree Parties did not offer any evidence to support a
finding that any of the Purported Court Documents is “what the proponent claims it
is.” Tex. R. Evid. 901. The complete failure to authenticate the Purported Court
Documents renders the proffered evidence incompetent.

      In In re Estate of Guerrero, this court, sitting en banc, determined that under
precedent from the Supreme Court of Texas and from this court, a document
submitted as evidence in a summary-judgment or a motion-to-compel-arbitration
context has a substantive defect and is incompetent if there was a complete failure
to authenticate the document. See 465 S.W.3d 693, 705, 706–08 (Tex. App.—

                                         11
Houston [14th Dist.] 2015, pet. denied) (en banc). Thus, the complete absence of
authentication of the Purported Court Documents amounts to a substantive defect
that is not waived by the failure to object and obtain a ruling in the trial court. See
id. at 706–08. Under this court’s precedent in In re Estate of Guerrero, these
substantive defects make the Purported Court Documents incompetent to raise a
genuine fact issue to prevent a summary judgment. See id. at 705, 706–08 (holding
that a complete failure to authenticate a document is a defect of substance that
makes the document “no competent evidence”); HighMount Explor. & Prod., LLC
v. Harrison Interests, Ltd., 503 S.W.3d 557, 567–68 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (holding that a complete failure to authenticate certain
documents rendered the documents incompetent to raise a fact issue preventing
summary judgment). Therefore, the Purported Court Documents submitted by the
Maree Parties in response to Zuniga’s summary-judgment motion cannot raise a
genuine fact issue. See In re Estate of Guerrero, 465 S.W.3d at 706–07; Wilson,
566 S.W.3d at 416–17; HighMount Explor. & Prod., 503 S.W.3d at 567–68.

      In support of their assertion that that the record in the Zuniga Lawsuit
reflects no return of service on file as to Maree, the only part of the record that the
Maree Parties cite is a footnote in their summary-judgment response in which they
asked the trial court to take judicial notice of the papers filed in the Zuniga
Lawsuit. The Maree Parties did not provide the trial court with copies of all of the
documents from the clerk’s record in the Zuniga Lawsuit, and we do not have
those documents before us today.

      We presume that a trial court took judicial notice of the items in the clerk’s
record in the same case, even if no party requested judicial notice and even if the
record does not reflect that the trial court took judicial notice. See Wilson, 566
S.W.3d at 417. But, the law limits this rule to items in the clerk’s record in the

                                          12
same case. See id. The items in the clerk’s record in the Zuniga Lawsuit are from
a different case, so we do not presume that the trial court took judicial notice of
these items. See Wilson, 566 S.W.3d at 417; Morris v. O’Neal, 464 S.W.3d 801,
808–09 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Though the Maree
Parties requested that the trial court take judicial notice, they do not assert that the
trial court granted this request, and the record does not reflect that the trial court
took judicial notice. See Wilson, 566 S.W.3d at 417; Morris, 464 S.W.3d at 808–
09; Nat’l Cnty. Mut. Fire Ins. Co. v. Hood, 693 S.W.2d 638, 638, 639 (Tex.
App.—Houston [14th Dist.] 1985, no writ) (noting that nothing in the record
indicated that the trial court had taken judicial notice of court records, some of
which were from a different case before the same trial court). The Zuniga Parties
did not get a ruling from the trial court, nor do they assert on appeal that the trial
court erred by failing to take judicial notice. See Lopez v. City Towing Assocs.,
754 S.W.2d 254, 263 (Tex. App.—San Antonio 1988, writ denied).

       The Maree Parties’ request for judicial notice does not serve to authenticate
the Purported Court Documents, nor does the request provide any summary-
judgment evidence as to the contents of the clerk’s record in the Zuniga Lawsuit.
Thus, the Maree Parties did not submit summary-judgment evidence showing that
no return of service was filed in the Zuniga Lawsuit with respect to Maree.

       The Maree Parties also rely on Maree’s affidavit testimony that other than
receiving papers from the Zuniga Lawsuit addressed to Front Row in July 2013,
“and prior to September 2014, no one ever handed to me personally, and I never
received by mail, a copy of any papers in the [Zuniga Lawsuit].” Maree asserts
that this evidence raises a fact issue that he was not served with process under
either Texas Rule of Civil Procedure 106(a) or Rule 106(b). See Tex. R. Civ. P.
106.   Under Rule 106(b), “[u]pon motion supported by affidavit stating the

                                          13
location of the defendant’s usual place of business or usual place of abode or other
place where the defendant can probably be found and stating specifically the facts
showing that service has been attempted under either (a)(1) or (a)(2) at the location
named in such affidavit but has not been successful, the court may authorize
service (1) by leaving a true copy of the citation, with a copy of the petition
attached, with anyone over sixteen years of age at the location specified in such
affidavit, or (2) in any other manner that the affidavit or other evidence before the
court shows will be reasonably effective to give the defendant notice of the suit.”
Tex. R. Civ. P. 106(b).

      If the trial court authorized service of process on Maree under Rule 106(b),
valid service of process properly could be effected on Maree without any one ever
handing Maree the citation and petition and without Maree ever receiving the
citation and petition by mail. See Mixson v. Nelson, No. 03-15-00287-CV, 2016
WL 4429936, at *3 (Tex. App.—Austin Aug. 19, 2016, no pet.) (mem. op.). Thus,
Maree’s affidavit testimony does not show that Maree was not properly served
with process in the Zuniga Lawsuit.

      The Maree Parties have not shown that the summary-judgment evidence
raises a genuine fact issue that no proper service of process was effected on Maree
in the Zuniga Lawsuit. Thus, we overrule the second issue.

B. Did the trial court err in granting summary judgment because the
summary-judgment evidence raises a genuine fact issue as to the third
equitable-bill-of-review element?
      The Maree Parties also assert that they “did not receive notice of the trial or
[the Underlying Judgment].” Therefore, the Maree Parties claim that (1) they need
not prove the first two equitable-bill-of-review elements and (2) the law deems the
Maree Parties to have conclusively established the third element. The Maree


                                         14
Parties confuse the law applicable to a bill-of-review plaintiff in the no-service-of-
process context and the law applicable in the no-notice-of-trial context. See Mabon
Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812–13 (Tex. 2012); Grant v.
Calligan, No. 14-15-01084-CV, 2017 WL 455731, at *2–4 (Tex. App.—Houston
[14th Dist.] Feb. 2, 2017, no pet.) (mem. op.). If an equitable-bill-of-review
plaintiff carries the burden of proving that no process was served on the plaintiff,4
the plaintiff need not prove the first two equitable-bill-of-review elements, and the
law will deem the plaintiff to have conclusively established the third element. See
Mabon Ltd., 369 S.W.3d at 812–13; Grant, 2017 WL 455731, at *2–4.

       If an equitable-bill-of-review plaintiff carries the burden of proving that the
plaintiff did not receive proper notice of the trial setting, the result is the same for
the first two equitable-bill-of-review elements, but different as to the third element.
See Mabon Ltd., 369 S.W.3d at 812–13; Caldwell, 154 S.W.3d at 97 & n.2; Grant,
2017 WL 455731, at *2–4. The plaintiff need not prove the first two equitable-bill-
of-review elements, but the law does not deem the plaintiff to have conclusively
established the third element. See Mabon Ltd., 369 S.W.3d at 812–13; Caldwell,
154 S.W.3d at 97 & n.2; Grant, 2017 WL 455731, at *2–4. Instead, the plaintiff
must show that the lack of proper notice of the trial setting was not because of
plaintiff’s negligence and that the plaintiff diligently pursued all available and
adequate legal remedies, such as reinstatement or a new trial. See Mabon Ltd., 369
S.W.3d at 812–13; Caldwell, 154 S.W.3d at 97 & n.2; Grant, 2017 WL 455731, at
*2–4. Though diligence does not require a plaintiff to pursue a restricted appeal or
to monitor the status of the case, the Supreme Court of Texas has stated that “it is
hard to imagine any case in which failure to pursue [an available motion for new
trial or motion to reinstate] would not be negligence.” Gold v. Gold, 145 S.W.3d
4
  In this opinion, we have presumed that this no-service-of-process scenario includes when the
plaintiff was not properly served with process.

                                             15
212, 214 (Tex. 2004); see Mabon Ltd., 369 S.W.3d at 813 (stating that equitable-
bill-of-review plaintiff who did not have notice of the trial setting still had to show
that the plaintiff diligently pursued all available legal remedies to challenge the
judgment and that the lack of proper notice of the trial setting was not because of
the plaintiff’s negligence, but did not have to show that the plaintiff diligently
monitored the case status).

      If a plaintiff does not get knowledge or notice of a final judgment until more
than ninety days after the rendition of judgment, then it is too late for the plaintiff
to file a motion for new trial, and the plaintiff did not get notice within an adequate
time to pursue that legal remedy. See Tex. R. Civ. P. 306a (allowing party that
follows procedures in Rule 306a to timely file a motion for new trial within up to
120 days after the date of the final judgment if the party first obtained knowledge
or notice of the judgment more than 20 days after the judgment but within 90 days
after the judgment); Tex. R. Civ. P. 329b (party ordinarily must file motion for
new trial within 30 days of the final judgment); Mabon Ltd., 369 S.W.3d at 813;
Grant, 2017 WL 455731, at *2–4; Nguyen v. Intertex, Inc., 93 S.W.3d 288, 296–97
(Tex. App.—Houston [14th Dist.] 2002, no pet.), abrogated on other grounds by
Glassman v. Goodfriend, 347 S.W.3d 772 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied) (en banc).

      We presume, without deciding, that the Maree Parties did not receive proper
notice of the trial setting. Because the Maree Parties have not shown that the
summary-judgment evidence raises a genuine fact issue that no proper service of
process was effected on them, even under this presumption, the Maree Parties were
required to raise a genuine issue of fact that the lack of proper notice of the trial
setting was not because of their negligence and that they diligently pursued all
available and adequate legal remedies, such as a new trial. See Mabon Ltd., 369

                                          16
S.W.3d at 812–13; Caldwell, 154 S.W.3d at 97 & n.2; Grant, 2017 WL 455731, at
*2–4. Yet, on appeal, the only arguments they advance to challenge the trial
court’s no-evidence ground as to the third element are (1) no proper service of
process was effected on them and (2) they did not receive notice of the trial setting.
The Maree Parties ask this court to reverse the trial court’s judgment and remand
for “trial on the merits solely on the issues of whether [the Maree Parties] were
given notice of the trial setting or [the Underlying Judgment].” The Maree Parties
do not argue that the summary-judgment evidence raises a genuine fact issue that
the lack of proper notice of the trial setting was not due to their negligence and that
they diligently pursued all available and adequate legal remedies, such as a new
trial. Because the Maree Parties have not shown that the summary-judgment
evidence raises a genuine fact issue that no proper service of process was effected
on them, this failure alone means that the Maree Parties have not shown that the
trial court erred in granting a no-evidence summary judgment as to the third
element.

      In any event, even if the Maree Parties had argued that the summary-
judgment evidence raises a genuine fact issue that the lack of proper notice of the
trial setting was not due to their negligence and that they diligently pursued all
available and adequate legal remedies, we still would affirm the trial court’s
judgment because the summary-judgment evidence does not raise a genuine fact
issue as to whether the Maree Parties diligently pursued all available and adequate
legal remedies, such as a new trial. As discussed above, the Purported Court
Documents are not competent summary-judgment evidence.               The only other
proffered proof that arguably might address the negligence element is Maree’s
affidavit. Maree testified that other than receiving papers from the Zuniga Lawsuit
addressed to Front Row in July 2013, “and prior to September 2014, no one ever


                                          17
handed to me personally, and I never received by mail, a copy of any papers in the
[Zuniga Lawsuit].” In this statement, Maree does not say that he received papers
in the Zuniga Lawsuit in September 2014, or later, and he does not say that he first
obtained knowledge or notice of the Underlying Judgment in September 2014.
Even if Maree had so testified, getting notice or knowledge of the Underlying
Judgment for the first time in September 2014 would have allowed the Maree
Parties an adequate time to pursue a motion for new trial. See Tex. R. Civ. P.
306a, 329b; Mabon Ltd., 369 S.W.3d at 813; Nguyen, 93 S.W.3d at 296–97.

      Maree also testified in the affidavit that “[b]efore being contacted at the
Fountain View address to respond to Zuniga’s post-judgment collection efforts, I
never received notice of any hearings or notice that judgment had been entered in
the [Zuniga Lawsuit].” No summary-judgment evidence addresses when Maree
was contacted to respond to Zuniga’s post-judgment collection efforts, and this
event could have occurred at a time that would have allowed the Maree Parties an
adequate opportunity to pursue a motion for new trial. See Tex. R. Civ. P. 306a,
329b; Mabon Ltd., 369 S.W.3d at 813; Nguyen, 93 S.W.3d at 296–97. No
summary-judgment evidence shows when either of the Maree Parties first obtained
knowledge or notice of the Underlying Judgment.            No summary-judgment
evidence addresses whether the Maree Parties filed a motion for new trial or a
direct appeal in the Zuniga Lawsuit, nor does any evidence show that the Maree
Parties could not have done so because the time for doing so expired before they
first learned of the Underlying Judgment.

      The summary-judgment evidence does not raise a genuine fact issue that the
Maree Parties diligently pursued all available and adequate legal remedies, such as
a new trial. See Tex. R. Civ. P. 306a, 329b; Mabon Ltd., 369 S.W.3d at 813;
Grant, 2017 WL 455731, at *2–5; Nguyen, 93 S.W.3d at 296–97.

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                                    III. CONCLUSION

       On appeal, the Maree Parties do not assert that the summary-judgment
evidence raises a genuine fact issue as to each of the equitable-bill-of-review
elements. Instead, they rely on Caldwell v. Barnes and its progeny, and attempt to
fit into the exception to the general rule requiring proof of these three elements.
But, the Maree Parties have not shown that the summary-judgment evidence raises
a genuine fact issue as to whether either of them fall within this exception.
       The Maree Parties also rely on the exception that applies when an equitable-
bill-of-review plaintiff carries the burden of proving that the plaintiff did not
receive proper notice of the trial setting. Even under this exception, the trial court
did not err in granting summary judgment unless the summary-judgment evidence
raised a genuine fact issue that the Maree Parties diligently pursued all available
and adequate legal remedies, such as a new trial. Yet, the Maree Parties have not
argued that the summary-judgment raises such a fact issue, and the record reflects
that the summary-judgment evidence does not do so. In sum, the Maree Parties
have not shown that the trial court erred in granting summary-judgment based on
the no-evidence ground that there is no evidence of an absence of fault or
negligence on the part of either of the Maree Parties.5 Therefore, we affirm the
trial court’s judgment.



                                          /s/    Kem Thompson Frost
                                                 Chief Justice

Panel consists of Chief Justice Frost and Justices Jewell and Spain.


5
  We need not and do not address the other summary-judgment grounds or the first, third, and
fourth issues.

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