                                                                                 ACCEPTED
                                                                             03-15-00287-CV
                                                                                     6384031
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        8/6/2015 11:48:43 AM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                   NO. 03-15-00287-CV

                                                  FILED IN
                                           3rd COURT OF APPEALS
               IN THE COURT OF APPEALS         AUSTIN, TEXAS
           FOR THE THIRD DISTRICT OF TEXAS 8/6/2015 11:48:43 AM
                    AUSTIN, TEXAS            JEFFREY D. KYLE
                                                   Clerk


                     GARY MIXON,
                       Appellant,

                           v.

 GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK
DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP;
         MICHAEL MORINI, AND NORMAN R. ZUKIS,
                         Appellees.


       ON APPEAL FROM THE 345TH DISTRICT COURT
              OF TRAVIS COUNTY, TEXAS


                 BRIEF OF APPELLANT



                                Jack E. Skaggs – 24051345
                                Scott W. Weatherford – 24079554
                                JACKSON WALKER L.L.P.
                                100 Congress Avenue, Suite 1100
                                Austin, Texas 78701
                                Telephone (512) 236-2000
                                Facsimile (512) 236-2002
                                E-mail: jskaggs@jw.com
                                E-mail: sweatherford@jw.com

                                ATTORNEYS FOR APPELLANT
                                GARY MIXON
                            i
                  IDENTITY OF PARTIES AND COUNSEL
      The following is a complete list of all parties before the trial court and the

names and addresses of all trial counsel and appellate counsel:

1.    Petitioner in the trial court (Appellant in this Court) and counsel:

      Gary Mixon

      Represented by:
      Jack E. Skaggs (Lead Attorney)
      State Bar No. 24051345
      jskaggs@jw.com
      Scott W. Weatherford
      State Bar No. 24079554
      sweatherford@jw.com
      JACKSON WALKER L.L.P.
      100 Congress Ave., Suite 1100
      Austin, Texas 78701
      512-236-2000 (telephone)
      512-236-2002 (facsimile)

2.    Respondents in the trial court (Appellees in this Court) and counsel:

      Greg Nelson, as principal of Madex Capital, L.L.C.
      Nick DeFilippis, as principal of Blue Star Capital Group, L.L.P.
      Michael Morini
      Norman R. Zukis

      Represented by:
      Mark R. McLean (Lead Attorney)           Jeff Meyerson
      State Bar No. 24062882                   State Bar No. 00788051
      mrm@mlpcfirm.com                         JeffM@Meyersonfirm.com
      MCLEAN LAW P.C.                          MEYERSON LAW FIRM
      408 W. 11th St., Suite 500               2224 Walsh Tarlton Lane, Suite 1220
      Austin, Texas 78701                      Austin, Texas 78746
      512-222-5641(telephone)                  512-330-9001 (telephone)
      512-857-1282 (facsimile)                 512-330-9005 (facsimile)



                                          ii
                                         TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... II
TABLE OF CONTENTS .........................................................................................III
TABLE OF AUTHORITIES .................................................................................. IV
BRIEF OF APPELLANT ..........................................................................................1
STATEMENT OF THE CASE ..................................................................................2
RECORD AND APPENDIX REFERENCES ...........................................................3
STATEMENT OF ORAL ARGUMENT ..................................................................4
ISSUES PRESENTED FOR REVIEW .....................................................................5
STATEMENT OF FACTS ........................................................................................6
SUMMARY OF THE ARGUMENT ........................................................................9
STANDARD OF REVIEW .....................................................................................10
ARGUMENTS & AUTHORITIES .........................................................................11

   I.       Mixon presented more than a scintilla of corroborated evidence to
            Create a fact Issue. ..................................................................................... 11

             A. A bill of review based on defective service requires only proof
                that the petitioner was never served with process. ..............................11
             B. Mixon has produced more than a scintilla of evidence that he
                was never served with process. ...........................................................13
   II.      Appellees failed to establish their entitlement to attorneys’ fees. ............. 15

CONCLUSION ........................................................................................................18
PRAYER ..................................................................................................................19
CERTIFICATE OF SERVICE ................................................................................20
CERTIFICATE OF COMPLIANCE .......................................................................20
APPENDIX ..............................................................................................................21




                                                            iii
                                         TABLE OF AUTHORITIES
                                                                                                                          Page(s)
CASES

Bakali v. Bakali,
  830 S.W.2d 251 (Tex. App.¬—Dallas 1992, no writ) ...............................................16

Broderick v. Kaye Bassman Int’l Corp.,
   333 S.W.3d 895 (Tex. App.—Dallas 2011, no pet.) ..................................................18

Caldwell v. Barnes,
  975 S.W.2d 535 (Tex. 1998) ................................................................................11, 12, 17

Gulf States Util. Co. v. Low,
  79 S.W.3d 561 (Tex. 2002) ..............................................................................................16

Hamilton v. Wilson,
  249 S.W.3d 425 (Tex. 2008) (per curiam) ....................................................................11

King Ranch, Inc. v. Chapman,
   118 S.W.3d 742 (Tex. 2003) ............................................................................................10
Langdon v. Gilbert,
  No. 0-14-00491-CV, 2014 Tex. App. LEXIS 13880 (Tex. App.—Austin
  Dec. 31, 2014, no pet.) .......................................................................................................13

Mack Trucks, Inc. v. Tamez,
  206 S.W.3d 572 (Tex. 2006) ............................................................................................10

Meece v. Moerbe,
  631 S.W.2d 729 (Tex. 1982) ......................................................................................16, 17

Mowbray v. Avery,
  76 S.W.3d 663 (Tex. App.—Corpus Christi 2003, pet. denied) .............................12

Peralta v. Heights Med. Ctr., Inc.,
   485 U.S. 80 (1988)..............................................................................................................12

Polansky v. Berenji,
   393 S.W.3d 362 (Tex. App.—Austin 2012, no pet.) .................................................18
Reynosa v. Huff,
   21 S.W.3d 510 (Tex. App.—San Antonio 2000, no pet.) .........................................10

                                                                 iv
Smith v. O’Donnell,
  288 S.W.3d 417 (Tex. 2009) ............................................................................................10

Sung Man Min v. Avila,
   991 S.W.2d 495 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ..........................13

Timpte Indus., Inc. v. Gish,
   286 S.W.3d 306 (Tex. 2009) ............................................................................................10

Travelers Indem. Co. of Conn. v. Mayfield,
   923 S.W.2d 590 (Tex. 1996) ............................................................................................11

Unifund CCR Partners v. Villa,
  299 S.W.3d 92 (Tex. 2009) (per curiam) ......................................................................11

Wembley Inv. Co. v. Herrera,
  11 S.W.3d 924 (Tex. 1999) ..............................................................................................11
OTHER AUTHORITIES

TEX. R. CIV. P. 166a(i) .............................................................................................................10




                                                                  v
                              NO. 03-15-00287-CV


                        IN THE COURT OF APPEALS
                    FOR THE THIRD DISTRICT OF TEXAS
                             AUSTIN, TEXAS


                                 GARY MIXON,
                                   Appellant,

                                        v.

     GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK
    DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP;
             MICHAEL MORINI, AND NORMAN R. ZUKIS,
                             Appellees.


              ON APPEAL FROM THE 345TH DISTRICT COURT
                     OF TRAVIS COUNTY, TEXAS


                            BRIEF OF APPELLANT


      Gary Mixon, Appellant herein and Petitioner before the trial court below,

submits this brief in this appeal of the trial court’s order granting a no-evidence

motion for summary judgment in favor of Appellees herein and Respondents

before the trial court below, and would respectfully show as follows:




                                         1
                           STATEMENT OF THE CASE
Nature of the Case:            Appellant Gary Mixon (“Appellant” or “Mixon”)
                               filed a Petition for Bill of Review against Greg
                               Nelson, as principal of Madex Capital, L.L.C.,
                               Nick DeFilippis, as principal of Blue Star Capital
                               Group, L.L.P., Michael Morini, and Norman R.
                               Zukis (“Appellees”) after Appellees obtained a
                               default judgment against Appellant that included
                               an award of $200,000 in economic damages and
                               $400,000 in punitive damages. (CR 36–37).
                               Appellant filed the Petition for Bill of Review
                               because Appellees failed to properly effect service
                               in the underlying lawsuit. (CR 3–44).
Parties:                       Appellant is Gary Mixon.
                               Appellees are Greg Nelson, as principal of Madex
                               Capital, L.L.C., Nick DeFilippis, as principal of
                               Blue Star Capital Group, L.L.P., Michael Morini,
                               and Norman R. Zukis.

Course of proceedings:         Appellees filed their No-Evidence Motion for
                               Summary Judgment on March 10, 2015 (CR 79–
                               118).
Trial Court:                   345th Judicial District Court, Travis County,
                               Texas, Cause No. D-1-GN-14-004368
Trial court disposition:       The trial court (The Honorable Gisela D. Triana
                               presiding) granted Appellees’ No-Evidence
                               Motion for Summary Judgment and dismissed
                               Appellant’s Petition for Bill of Review on April
                               24, 2015. (CR 161–62) (Tab A).




                                        2
                  RECORD AND APPENDIX REFERENCES


CR                 Clerk’s Record

      Citation to documents included in the Appendix will be noted by “(Tab

[Letter])” next to the Clerk’s Record citation.




                                          3
                     STATEMENT OF ORAL ARGUMENT
      Because the issues are clear, Appellant believes oral argument will not

materially aid the Court’s resolution of this appeal.




                                          4
                     ISSUES PRESENTED FOR REVIEW
      Issue No. 1: Appellant offered more than a scintilla of evidence to create a

fact issue regarding whether he received service of process in the Underlying

Lawsuit.

      Issue No. 2: Appellees failed to establish a statutory or contractual basis

demonstrating their entitlement to an award of attorneys’ fees.




                                         5
                           STATEMENT OF FACTS
      Appellees filed a lawsuit against Mixon and five other defendants alleging

fraud, negligent misrepresentation, violation of the Texas State Securities Act,

gross negligence, breach of contract, and breach of fiduciary duty (the “Underlying

Lawsuit”). (CR 12–33). In their Original Petition, Appellees represented that

Mixon resided at 35 Persimmon in Boerne, Texas. (CR 15). However, Mixon

moved from that address prior to the filing of the Underlying Lawsuit. (CR 39).

      After several failed attempts at service, Mixon first became aware of the

Underlying Lawsuit in September 2013 when Appellees served a subpoena on

Mixon’s ex-wife, Linda Komperda. (CR 128). Appellees issued the subpoena to

confirm the correct address for Mixon. (CR 109). At a hearing on November 1,

2013, Ms. Komperda testified that she lived with Mixon at 116 Cave Circle in

Boerne, Texas, and the trial court issued an order for substitute service at that

address. (CR 105). Specifically, the trial court ordered substitute service by

“posting a true and correct copy of the citation and the attached petition on the

front door [at] 116 Cave Circle, Boerne, Texas 78006.” Id.

      According to his affidavit, process server Margarito Vasquez accomplished

service the next day by posting a copy of the citation and original petition “to the

front door of the property of Gary Mixon . . . at the address of 116 Cave Circle.”

(CR 114).    However, Mixon never received the citation or original petition



                                         6
purportedly attached to his front door, so he called the clerk of the Travis County

District Court to inquire whether their records showed that he had been served.

(CR 133, 143). On that call, the clerk told Mixon that he had not been served.

(CR 143–144).

        Later that month, Mixon moved from the house located at 116 Cave Circle

to a different location in Boerne, Texas. (CR 144). At no point in time during the

month of November did Mixon receive service of citation in the Underlying

Lawsuit. (CR 144.).

        The next month, Appellees filed a Motion for Default Judgment against

Mixon. (CR 7). Appellees did not even attempt to serve Mixon with this motion.

(CR 7–8). Moreover, the Certificate of Last Known Address filed by Appellees

identified the incorrect address for Mixon. (CR 8). Accordingly, Mixon did not

receive notice of the Motion for Default Judgment or notice of the hearing. (CR

144).

        The Court entered a default judgment against Mixon on January 17, 2014.

(CR 36–37). The Court awarded Appellees $400,000 in punitive damages and

$200,000 in economic damages. Id. Mixon did not immediately receive notice of

the default judgment because all notices were sent to Mixon’s previous addresses.

(CR 140–141). Instead, Appellees deliberately waited until 30 days after the entry

of the default judgment to attempt to serve Mixon with notice of the default



                                         7
judgment. (CR 121). However, Appellees once again served Mixon at the wrong

address. (CR 121).

      Mixon first learned of the purported service of citation and default judgment

in June 2014, over 7 months after the alleged date of service. (CR 144).




                                         8
                      SUMMARY OF THE ARGUMENT
      The trial court erred in granting Appellees’ No-Evidence Motion for

Summary Judgment and awarding Appellees their attorneys’ fees incurred in

defending the Petition for Bill of Review.

      First, Appellees’ No-Evidence Motion for Summary Judgment fails because

Mixon presented more than a scintilla of corroborated evidence to support the fact

that Appellees failed to effect proper service in the Underlying Lawsuit.

      Second, Appellees failed to identify any statutory or contractual authority to

establish their entitlement to attorneys’ fees incurred in defending a Petition for

Bill of Review based on lack of proper service.




                                         9
                           STANDARD OF REVIEW
      A party may move for summary judgment on the ground that no evidence

exists of one or more essential elements of a claim on which the adverse party

bears the burden of proof at trial. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v.

Gish, 286 S.W.3d 306, 310 (Tex. 2009). Once the motion is filed, the burden

shifts to the nonmovant to produce evidence raising a genuine issue of material fact

on the elements specified in the motion. TEX. R. CIV. P. 166a(i); Mack Trucks, Inc.

v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the respondent brings forth more

than a scintilla of probative evidence to raise a genuine issue of material fact,

summary judgment is improper. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003). More than a scintilla of evidence exists when the evidence “rises

to a level that would enable reasonable and fair-minded people to differ in their

conclusions.” Id.; Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.—San Antonio

2000, no pet.).

      The Court must “review the evidence in the light most favorable to the

respondent against whom the summary judgment was rendered . . . .            If the

respondent brings forth more than a scintilla of probative evidence to raise a

genuine issue of material fact, a no-evidence summary judgment cannot properly

be granted.” Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (citations

omitted). “That is, a no-evidence summary judgment should be reversed if the



                                        10
evidence is sufficient for reasonable and fair-minded jurors to differ in their

conclusions.” See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per

curiam).

      With respect to an award of attorneys’ fees, this Court must review for abuse

of discretion. See Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593

(Tex. 1996) (orig. proceeding). A trial court abuses its discretion if its decision is

arbitrary, unreasonable, and without reference to guiding principles, or if it rules

without supporting evidence. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97

(Tex. 2009) (per curiam). A court will review the record to determine whether the

trial court followed guiding rules and principles. Id.

                       ARGUMENTS & AUTHORITIES

I.    MIXON PRESENTED MORE THAN A SCINTILLA OF CORROBORATED
      EVIDENCE TO CREATE A FACT ISSUE.

      A.     A bill of review based on defective service requires only proof that
             the petitioner was never served with process.
      A bill of review is an independent equitable action brought by a party to a

previous suit who seeks to set aside a judgment that is no longer subject to a

motion for new trial or appealable. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924,

926–27 (Tex. 1999); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).

Traditionally, to state a claim for a bill of review, a petitioner must allege: (1) a

meritorious defense to the cause of action supporting the judgment; (2) that the

petitioner was prevented from making by the fraud, accident, or wrongful act of the

                                         11
opposing party; and (3) that is unmixed with any fault or negligence by the

petitioner. Mowbray v. Avery, 76 S.W.3d 663, 682 (Tex. App.—Corpus Christi

2003, pet. denied).

      However, when a petitioner seeks a bill of review based solely on a claim of

lack of proper service, the petitioner need not show the first two of these

requirements. This exception arises as a matter of constitutional law, because

notice of the lawsuit and the judgment is an essential ingredient of due process. A

judgment is vulnerable to attack if a party obtained it in the absence of

constitutionally mandated notice, even if the defendant lacks a meritorious defense.

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988); Caldwell, 975 S.W.2d

at 537.

          When a petitioner seeks a bill of review based on a claim of lack of proper

service, he or she may conclusively establish the absence of fault or negligence by

proving that he or she was never served with process. Caldwell, 975 S.W.2d at

537. An individual who is not served cannot be at fault or negligent in allowing a

court to render a default judgment. See id. Even if the individual becomes aware

of the proceedings before the court renders judgment, he or she has no duty to

participate in them without proper service of process and is, therefore, not at fault

for failing to answer. Id.




                                          12
      B.     Mixon has produced more than a scintilla of evidence that he was
             never served with process.
      At the summary judgment stage, a petitioner’s own testimony is “some

evidence of defective service of process.” See Sung Man Min v. Avila, 991 S.W.2d

495, 502 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that evidence

derived solely from the petitioner was “not only sufficient to defeat [Respondent’s]

prima facie case, as established by the [citation] recitals, and thus place the issue of

the service before the jury, but also sufficient to support the jury’s finding of no

service.”); see also Langdon v. Gilbert, No. 0-14-00491-CV, 2014 Tex. App.

LEXIS 13880, at *7 (Tex. App.—Austin Dec. 31, 2014, no pet.) (holding that the

petitioner’s own affidavit was “some evidence of defective service of process”). In

Langdon, the petitioner filed a bill of review to set aside a default judgment on the

basis of defective service of process. 2014 Tex. App. LEXIS 13880, at *3. In

cross motions for summary judgment, the petitioner submitted his own affidavit in

which he averred that he did not receive service of process. Id. at *7. The trial

court granted the respondent’s motion for summary judgment, but the Austin Court

of Appeals reversed because the petitioner’s “bare assertion” that he was not

served “is inadequate to carry his burden of proof, but it is some evidence of

defective service of process.” Id. (internal citations omitted).

      Here, Mixon’s affidavit and deposition testimony, despite being “bare

assertions” that he was never served, constitute “some evidence” that defeats


                                          13
summary judgment. Specifically, Mixon produced evidence that he never received

the citation purportedly attached to his front door. For example, Mixon testified in

his deposition that he “was never served.” (CR 131). Mixon would not have

called the Travis County Clerk on November 6, 2013 asking if he had been served

if he had actually been served on November 2 as alleged. (CR 131–35, 143).

During his deposition, Mixon maintained that the best evidence of defective

service is the fact that he never received the citation:

             Q.     Are you stating affirmatively that Mr. Vasquez did
                    not post the Citation of Petition on your door
                    November 2nd?

             A.     I am saying that I have not received securely the
                    citation.

             Q.     But you are not testifying he did not post the copy
                    of the citation and petition on your door November
                    2, 2013?

             A.     I did not receive the citation.

(CR 131–35, 144). Accordingly, Mixon’s own testimony constitutes more than a

scintilla of evidence that, although insufficient to carry his burden at trial, is

certainly enough to place the issue before a jury.

      Additionally, Mixon’s testimony is further supported by additional

circumstantial evidence that Mixon never received any items allegedly left by the

process server, Mr. Vasquez. For example, Mr. Vasquez’s affidavit of non-service

indicates that he left a “call back card” on August 28, 2013. (CR 139). However,

                                           14
Mixon testified that he never received the call back card. (CR 129–30). This

constitutes more evidence to contradict Mr. Vasquez’s affidavit of service given

the fact that Mixon never received the citation. (CR 132) (“I do not question [Mr.

Vasquez’s] statement other than the fact that I did not receive the citation and the

petition.”).

       Ms. Komperda’s declaration also corroborates Mixon’s testimony that he

never received the citation and Petition in the Underlying Lawsuit. Ms. Komperda,

who lived with Mixon at the time of the alleged service, stated that she never

received or saw a copy of the Petition and citation purportedly attached to the front

door. (CR 145).

       Taken together, Mixon’s testimony, Ms. Komperda’s declaration, and the

contradiction of the process server’s affidavits constitute more than a scintilla of

evidence that service was defective in the Underlying Lawsuit. Considering this

evidence in the light most favorable to Mixon, it is certainly possible that the

process server failed to execute service consistent with the order of substitute

service. Accordingly, the trial court erred by granting Appellees’ no evidence

motion for summary judgment.

II.    APPELLEES FAILED TO ESTABLISH THEIR ENTITLEMENT TO ATTORNEYS’
       FEES.

       In their No-Evidence Motion for Summary Judgment, Appellees summarily

declared that they “are also entitled to an award of attorney’s fees and costs.” (CR

                                         15
86). At the hearing on the motion, the trial court allowed Mixon to submit a Bench

Brief in opposition to Appellees demand for attorneys’ fees. (CR 157–160). After

consideration of the brief, the trial court granted Appellees claim for attorneys’

fees. (CR 161–62) (Tab A).

      The law is clear that a prevailing party may recover attorneys’ fees from the

opposing party only if the recovery of fees is provided for by statute or contract.

Gulf States Util. Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002). There is no statute

that provides for the recovery of attorneys’ fees for the prevailing party in a bill of

review proceeding.     As such, courts have held that a party who successfully

defends a bill of review is entitled to recover attorneys’ fees only if such fees are

authorized for the underlying case. See Bakali v. Bakali, 830 S.W.2d 251, 257

(Tex. App.—Dallas 1992, no writ).

      In Meece v. Moerbe, the Texas Supreme Court analyzed the policy behind

this rule. 631 S.W.2d 729 (Tex. 1982). In Meece, the trial court awarded the

respondent attorneys’ fees for successfully defending the petitioner’s bill of

review. Id. at 730. The court of appeals reversed, holding that the respondent was

not entitled to fees because defense of a bill of review was not the same as

establishing an affirmative cause of action under a statute that allows recovery of

attorneys’ fees. Id. The Texas Supreme Court disagreed, noting the following:

             [T]he purpose of the [statute allowing recovery of
             attorneys’ fees] is to authorize attorneys’ fees for the

                                          16
              successful prosecution of a . . . claim to final judgment.
              While the bill of review is an equitable action, separate
              from the original suit, [the respondent] had the burden of
              proving his original cause of action.

Id. (emphasis added). Accordingly, the Texas Supreme Court held that because the

respondent successfully prevented the petitioner from establishing a meritorious

defense (a necessary element of his bill of review claim), the respondent had in

essence proved his underlying cause of action and was entitled to an award of

attorneys’ fees.

        The Texas Supreme Court’s opinion in Meece leads to the logical conclusion

that when a bill of review petitioner does not have to prove a meritorious defense,

and the respondent therefore does not have the burden to prove the original cause

of action, the defending party is not entitled to attorneys’ fees.         Here, it is

undisputed that Mixon did not have to prove a meritorious defense as an element

of his bill of review. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998)

(noting that a bill of review based on failure of service dispenses with the

requirement to prove a meritorious defense). As such, Appellees never carried the

burden to prove the underlying cause of action that would entitle them to attorneys’

fees.

        Instead, Appellees rely on a single case from the Dallas Court of Appeals to

support their claim for attorneys’ fees. Yet that case, just like Meece, involved a

bill of review where the respondent negated the petitioner’s meritorious defense.


                                         17
See Broderick v. Kaye Bassman Int’l Corp., 333 S.W.3d 895, 898 (Tex. App.—

Dallas 2011, no pet.). Despite having the burden to do so, Appellees have not

identified any legal authorities that allow for the recovery of attorneys’ fees by the

defending party in a bill of review where the petitioner does not have to prove—

and the responding does not have to negate—a meritorious defense to the

underlying cause of action. Accordingly the trial court abused its discretion in

granting Appellees’ request for attorneys’ fees. See Polansky v. Berenji, 393

S.W.3d 362, 368 (Tex. App.—Austin 2012, no pet.) (holding that the trial court

abused its discretion in awarding attorneys’ fees “without a statutory or contractual

basis to do so.”).

                                  CONCLUSION
      Mixon alleges that he was denied service of process—a fundamental right

guaranteed by the Constitution. The trial court, by refusing to acknowledge the

fact issues raised by Mixon, effectively deprived Mixon of that right. Moreover,

the trial court erred by awarding attorneys’ fees to Appellees not for proving their

underlying cause of action, but instead for simply filing a no-evidence motion for

summary judgment. Accordingly, the trial court’s orders should be reversed and

this case should be remanded for further proceedings.




                                         18
                                    PRAYER
       Appellant Gary Mixon respectfully requests that this Court reverse the trial

court’s order granting Appellee’ No-Evidence Motion for Summary Judgment and

request for attorneys’ fees and remand this cause to the trial court. Appellant also

respectfully requests such further relief, general or special, to which he may be

justly entitled.


          DATED and FILED this 6th day of August, 2015.


                                      Respectfully submitted,

                                      JACKSON WALKER L.L.P.


                                      By: /s/ Jack E. Skaggs
                                          Jack E. Skaggs - 24051345
                                          Scott W. Weatherford – 24079554
                                          JACKSON WALKER L.L.P.
                                          100 Congress Avenue, Suite 1100
                                          Austin, Texas 78701
                                          Telephone (512) 236-2000
                                          Facsimile (512) 236-2002
                                          E-mail: jskaggs@jw.com
                                          E-mail: sweatherford@jw.com

                                      ATTORNEYS FOR APPELLANT GARY
                                      MIXON




                                        19
                         CERTIFICATE OF SERVICE
      I hereby certify that, on the 6th day of August 2015, a true and correct copy
of the foregoing was served on all counsel of record listed below in accordance
with Rule 9.5(c) of the Texas Rules of Appellate Procedure via electronic filing
and electronic mail:

      Mark R. McLean (Lead Attorney)         Jeff Meyerson
      State Bar No. 24062882                 State Bar No. 00788051
      mrm@mlpcfirm.com                       JeffM@Meyersonfirm.com
      MCLEAN LAW P.C.                        MEYERSON LAW FIRM
      408 W. 11th St., Suite 500             2224 Walsh Tarlton Lane, Suite 1220
      Austin, Texas 78701                    Austin, Texas 78746
      512-222-5641(telephone)                512-330-9001 (telephone)
      512-857-1282 (facsimile)               512-330-9005 (facsimile)



                                      /s/ Jack E. Skaggs
                                      Jack E. Skaggs

                      CERTIFICATE OF COMPLIANCE
       This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
because, exclusive of the matters excepted from the word count limitations of the
Rule, this brief contains 2,826 words.


                                      /s/ Jack E. Skaggs
                                      Jack E. Skaggs




                                        20
                        NO. 03-15-00287-CV


                   IN THE COURT OF APPEALS
               FOR THE THIRD DISTRICT OF TEXAS
                        AUSTIN, TEXAS


                           GARY MIXON,
                             Appellant,

                                 v.

    GREG NELSON, AS PRINCIPAL OF MADEX CAPITAL LLC; NICK
   DEFILIPPIS, AS PRINCIPAL OF BLUE STAR CAPITAL GROUP LLP;
            MICHAEL MORINI, AND NORMAN R. ZUKIS,
                            Appellees.


          ON APPEAL FROM THE 345TH DISTRICT COURT
                 OF TRAVIS COUNTY, TEXAS


                            APPENDIX



Tab A    Order Granting No-Evidence Motion for Summary Judgment




                                 21
Tab A
                                  CAUSE No. D-1-GN-14-004368

GARY MIXON,                                          §                IN THE DISTRICT COURT OF
                                                     §
            Petitioner/Judgment Debtor,              §
                                                     §
     V.                                              §
                                                     §
GREG NELSON, as principal ofMADEX                    §                      TRAVIS COUNTY, TEXAS
CAPITAL, LLC; NICK DEFILIPPIS, as                    §
principal of BLUE STAR CAPITAL                       §
GROUP, LLC; MICHAEL MORINI; and                      §
NORMAN R. ZUKIS,                                     §
                                                     §
               Respondents/Judgment Creditors.       §                      345th JUDICIAL DISTRICT

    ORDER GRANTING NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

          On     April   9,   2015,    the   Court       considered   and    took   under   advisement

Respondents/Judgment Creditors' No-Evidence Motion for Summary Judgment in the above-

styled case. After considering the motion, the response, the reply, the admissible summary

judgment evidence, and the applicable law, the Court GRANTS the motion in its entirety,

including the claim for attorney's fees in the amount of $6,120.00 and costs of $300.49.

          Petitioner/Judgment Debtor Gary Mixon's Bill of Review proceeding under Cause No.

D-1-GN-14-004368 is DISMISSED WITH PREJUDICE to the refiling of the same.

JUDGME~T        is hereby entered that Petitioner/Judgment Debtor Gary Mixon shall take nothing

by way of his bill of review and that Respondents/Judgment Creditors are awarded attorney's

fees and costs outlined above.

          This is a final and appealable JUDG\t1ENT.




                                              [Continued.]




Order Granting No Evidence lv!otion for Summary Judgment                                        Page I of2
                                               THE HONORABLE GISELA D. TRIANA
                                               JUDGE, 200th JUDICIAL DISTRICT COURT
                                               OF TRAVIS COUNTY, TEXAS



Approved to Form:




~       ,
THE MEYERSON LAW FIRM, P.C.
Mark McLean
Attorney for Respondents/Judgment Creditors



1, . tJ ~-          ~~                               w( PA-M<«<•ev-   (},
f;¥cicib WALKERIIP.                                      ~
Scott Weatherford
Attorney for Petitioner/Judgment De tor




Order Granting No Evidence Motion for Summary Judgment                           Page 2 of2
