Affirmed and Memorandum Opinion filed December 9, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00966-CV

                   SONNY V. THOTTUMKAL, Appellant
                                       V.

                         GURNAIB SIDHU, Appellee

                   On Appeal from the 295th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-67915

                 MEMORANDUM OPINION

      Appellant Sonny V. Thottumkal challenges the trial court’s summary
judgment granting appellee Gurnaib Sidhu a bill of review setting aside a default
judgment. In a single issue, Thottumkal asserts that fact issues preclude summary
judgment. We affirm.
                                   BACKGROUND

      In June 2010, Sidhu, who resided at 10403 Staghill Drive in Houston,
contracted with Thottumkal to complete construction of a new residence at 10703
Grand Estates Drive in Houston. A dispute arose over the performance of the
contract, and Thottumkal filed a breach-of-contract suit against Sidhu in June
2011. Thottumkal’s suit was filed in the 295th District Court of Harris County,
under cause number 2011-36243 (the underlying suit).          Thottumkal requested
service of citation to Sidhu at Sidhu’s old address on Staghill Drive.

      In April 2012, after unsuccessfully attempting to serve Sidhu at the Staghill
Drive address, Thottumkal sought substitute service on Sidhu at the Grand Estates
Drive location.    The trial court signed an order on Thottumkal’s motion for
substitute service, permitting service on Sidhu “by posting a copy of this Order
along with the citation and Original Petition & Request for Disclosure on the
Defendant’s usual place of residence located at 10703 Grand Estate, Houston,
Harris County, Texas 77065.” The return of service recites that

      a true copy of the subpoena with the date of delivery endorsed on it to
      the witness Gurnaib Sidhu [was delivered] in person on April 28,
      2012, at Gurnaib Sidhu Residence located at 10703 Grand Estate,
      Houston, Harris County, Texas 77065, which is the home residence of
      the witness’ address [sic].

Thereafter, in June 2012, Thottumkal filed a motion for no-anwer default
judgment, identifying the Staghill Drive location in his certificate of last known
address, rather than the Grand Estates Drive address. The motion was set for
submission on July 9. Thottumkal’s certification of service return reflects that the
motion for default judgment and notice of submission was sent by certified mail,
return receipt requested, to the Staghill Drive address on June 13. There is no
return receipt included in the record.

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      On July 7, Sidhu made an appearance and filed a motion to quash for
improper service. In this motion, Sidhu requested, among other things, a take-
nothing judgment.      On July 18, the trial court signed an order granting
Thottumkal’s motion for default judgment. Sidhu did not receive the clerk’s notice
of judgment because it was addressed to the Staghill Drive address and the
forwarding order to the Grand Estates Drive address had expired. The judgment
became final, and, on October 29, 2012, Thottumkal ordered a writ of execution
and requested that the constable post Sidhu’s property for sale. Thottumkal stated
in his letter requesting the execution writ and sale that the last known address for
service to Sidhu was 10703 Grand Estate Drive.

      After being notified by the constable of the writ of execution and proposed
sale of his property in the underlying suit, Sidhu filed the instant verified bill of
review, application for temporary restraining order, and request for temporary and
permanent injunctive relief on November 14, 2012. The bill of review was initially
assigned to the 164th District Court, but was transferred to the 295th District
Court. In his bill of review, Sidhu stated

      On July 7, 2012, Plaintiff Dr. Sidhu (Defendant below) had filed an
      appearance and answer in the underlying case some eleven (11) days
      before the (apparently mistaken) entry of this Court’s July 18, 2012
      Default Judgment by filing his Motion to Quash For Improper Service
      (including a prayer and request that Thottumkal, Defendant herein and
      Plaintiff below, take nothing by his suit and a prayer and request for
      general relief). . . . The entry of a default judgment against a
      defendant that has appeared and answered is void and must be set
      aside.
The trial court held a hearing on February 15, 2013, on Sidhu’s petition. At this
hearing, Sidhu asked the trial judge to take judicial notice of the file of the




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underlying case, which the trial judge did without objection. 1                         The judge
considered Sidhu’s motion to quash filed in the underlying suit and stated, “[T]his
filing would constitute an answer to defeat the default judgment.” After this
hearing, the trial court signed an order requiring Thottumkal “to desist and refrain”
from levying and execution on Sidhu’s homestead, located at 10703 Grand Estates
Drive.

         In April, Sidhu filed a traditional motion for summary judgment on his bill
of review, asserting, as is applicable here, 2 that the default judgment in the
underlying suit was void because it was signed after he appeared and answered,
and, further, he was not provided (a) any prior notice of the default judgment
motion, (b) the requisite 45-day notice of a default judgment trial setting, or (c) the
requisite notice of judgment properly addressed to his last known address. On
September 9, 2013, the trial court signed an order granting Sidhu’s motion for
summary judgment and declaring that the judgment in the underlying suit is “void
ab initio” and vacated and setting the underlying suit for trial. From this order,
Thottumkal appeals.


         1
          See Tex. R. Evid. 201(d) (providing that a court “shall take judicial notice” when
requested by a party and supplied with the necessary information). Sidhu’s request that the trial
court take judicial notice of its own file in the underlying suit falls within the type of facts
amenable to judicial notice because Sidhu requested that the trial court take notice of the timing
and nature of the pleadings. See Tex. R. Evid. 201(b) (“A judicially noticed fact must be one not
subject to reasonable dispute in that it is . . . capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.”); see also In re C.S., 208
S.W.3d 77, 81 (Tex. App.—Fort Worth 2006, pet. denied) (explaining that a court may take
judicial notice of a file to show that the documents in the file are a part of the court’s files, that
they were filed with the court on a certain date, and that they were before the court at the time of
a hearing); Trimble v. Tex. Dep’t of Protective & Regulatory Serv., 981 S.W.2d 211, 215 (Tex.
App.—Houston [14th Dist.] 1998, no pet.) (“[A] trial court may take judicial notice of its own
records in matters that are generally known, easily proven, and not reasonably disputed.”).
         2
         Sidihu again requested that the trial court take judicial notice of the files in the
underlying suit in his summary judgment motion. See sources cited supra note 1.

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                  STANDARD OF REVIEW AND APPLICABLE LAW

      In a single issue, Thottumkal contends that fact issues precluded summary
judgment in favor of Sidhu. We review the trial court’s granting of a summary
judgment de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642,
644 (Tex. 2009) (per curiam). To be entitled to summary judgment under Rule
166a(c), a movant must establish that there is no genuine issue of material fact so
that the movant is entitled to judgment as a matter of law. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true
all evidence favorable to the nonmovant and resolve any doubt in the nonmovant’s
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable fact finders could, and
disregarding evidence contrary to the nonmovant unless reasonable fact finders
could not. Mann Frankfort, 289 S.W.3d at 848.

      Here, the trial court granted Sidhu’s bill of review. A bill of review is an
equitable proceeding brought by a party seeking to set aside a prior judgment that
is no longer subject to challenge by a motion for new trial or appeal. Caldwell v.
Barnes, 975 S.W.2d 535, 537 (Tex. 1998). To set aside a judgment by bill of
review, the plaintiff must ordinarily plead and prove: (1) a meritorious defense to
the cause of action alleged to support the judgment, (2) that he was prevented from
making by the fraud, accident, or wrongful act of his opponent, (3) unmixed with
any fault or negligence of his own. Id.

      However, a default judgment may not be rendered after the defendant has
filed an answer. Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam);
Jackson v. Textron Fin’l Corp., No. 14-07-01011-CV, 2009 WL 997484, at *4
(Tex. App.—Houston [14th Dist.] April 14, 2009, no pet.) (mem. op.) (“Jackson’s

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live answer defeats a motion for no-answer default judgment regardless of whether
the answer was verified.”). “Entry of a post-answer default judgment against a
defendant who did not receive notice of the trial setting or dispositive hearing
constitutes a denial of due process under the Fourteenth Amendment of the United
States Constitution.” Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813
(Tex. 2012) (per curiam). Once a bill-of-review plaintiff proves that (1) he had no
notice of the trial setting or the default judgment within an adequate time to pursue
alternative legal remedies, and (2) the lack of notice was not due to his own fault or
negligence, the first two traditional bill-of-review requirements—a meritorious
defense that he was prevented from making by the fraud, accident, or wrongful act
of his opponent—are rendered unnecessary, and the final traditional requirement—
lack of negligence—is conclusively established. Id.

                                           ANALYSIS

       Thottumkal asserts that Sidhu failed to establish his entitlement to a bill of
review as a matter of law. Thottumkal does not dispute that Sidhu’s motion to
quash qualified as an answer.3 Nonetheless, Thottumkal asserts that Sidhu did not
show that he was diligent in monitoring the underlying suit, and thus Sidhu was
required to show he was not negligent to obtain a bill of review. See Abou-Trabi v.
Best Indus. Uniform Supply, Inc., No. 14-02-01000-CV, 2003 WL 22252876, at *4

       3
          We agree that this motion to quash constituted an answer: “The Supreme Court of
Texas and this court have taken an expansive view of what may be construed an answer in a
suit.” Granade v. Granade, No. 14-10-00340-CV, 2011 WL 2899627, at *2 (Tex. App.—
Houston [14th Dist.] July 21, 2011, no pet.) (mem. op.) (citing Sells v. Drott, 259 S.W.3d 156,
159 (Tex. 2009) and Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992)). Sidhu’s motion to
quash had the appropriate header identifying the cause number, plaintiff, defendant, and trial
court; it also requested relief, identified Sidhu’s proper mailing address, was signed by Sidhu’s
attorney, and contained Sidhu’s attorney’s contact information. Cf. id. (concluding pro se
respondent’s fax requesting an extension of time, which contained her signature, phone number,
cause number, trial court, and identified her status as a party-respondent in the case, constituted
an answer sufficient to defeat a no-answer default judgment).

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(Tex. App.—Houston [14th Dist.] Oct. 2, 2003, no pet.) (mem. op.) (stating that
petitioner in bill-of-review proceeding must establish he was free from fault or
negligence in letting default judgment be taken, even if, presumably, petitioner did
not receive notice of the default judgment trial setting), disapproved of by Mabon
Ltd., 369 S.W.3d at 814 (“We hold that once a bill-of-review plaintiff proves it had
no notice of the trial setting or the default judgment, it need not establish that it
diligently monitored the status of its case.”). But, as explained above, a default
judgment may not be rendered after the defendant has filed an answer. Davis, 764
S.W.2d at 560; Jackson, 2009 WL 997484, at *4. Here, the default judgment was
signed after Sidhu answered in this suit, which was improper. See Tex. R. Civ. P.
239; Davis, 764 S.W.2d at 560. Thus, the trial court did not err in granting Sidhu’s
summary judgment on his bill of review.

      Moreover, when a bill-of-review plaintiff proves that, through no fault of his
own, he had no adequate notice of the default judgment setting, he need not show a
meritorious defense that he was prevented from making and his lack of negligence
is conclusively established. Mabon Ltd., 369 S.W.3d at 813–14; cf. Duggan v.
Carsey, No. 01-10-00297-CV, 2011 WL 2183771, at *3–4 (Tex. App.—Houston
[1st Dist.] June 2, 2011, no pet.) (mem. op.) (in a restricted appeal, holding that
error on the face of the record was shown where appellant, who filed an answer,
did not receive 45 days’ notice of default judgment trial setting). Here, then, if
Sidhu’s filing of an answer does not by itself entitle him to summary judgment on
his bill of review, then he must have conclusively established that, due to no fault
of his own, he had no adequate notice of the trial setting on the default judgment
hearing.

      The following facts are undisputed:



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      • Sidhu was served with citation by substitute service at his current Grand
        Estates Drive address on April 28, 2012; 4
      • in June, Thottumkal sent by certified mail, return receipt requested, the
        motion for default judgment and notice of the default judgment setting to
        Sidhu’s old Staghill Drive address;
      • Sidhu filed his answer—his motion to quash—on July 7, 2012, which
        indicated both his correct address as the Grand Estates Drive address and
        provided his attorney’s address;
      • the default judgment was signed on July 18, 2012;
      • on August 20, 2012, the notification of the entry of default judgment,
        which was mailed to Sidhu at the Staghill Drive address—the address
        Thottumkal certified to the trial court as Sidhu’s last known address—
        was returned to the trial court as undeliverable because the forwarding
        order had expired;
      • on October 29, 2012, Thottumkal sought to have Sidhu’s property posted
        for sale and stated that his “records indicate the last known address for
        service of notice to Defendant Gurnaib Sidhu is 10703 Grand Estate
        Drive, Houston, Texas 77065”; and
      • Sidhu filed his bill of review action on November 14, 2012.

      Our rules of procedure require no less than 45 days’ notice in contested
cases for a trial setting. Tex. R. Civ. P. 245; see also Duggan, 2011 WL 2183771,
at *3. The record makes clear that Sidhu did not receive the appropriate notice of
the default judgment hearing: the default judgment was signed only eleven days
after Sidhu filed his answer. Nothing in our record indicates that Sidhu was at
fault for the failure of adequate notice; instead, it appears that Thottumkal either
purposefully or inadvertently attempted service of the default judgment motion on
Sidhu’s prior, rather than current, address. Further, the requisite notice of the
default judgment was not delivered to Sidhu; this notice was returned to the trial
court because the forwarding order had expired. There is nothing in the record to

      4
         Our disposition of this case makes it unnecessary to consider the adequacy of the
substitute service and return.

                                            8
suggest that Sidhu was negligent in his failure to receive notice of the default
judgment. Cf. Mabon Ltd., 396 S.W.3d at 813.

      Accordingly, because Sidhu proved that (1) he had no notice of the trial
setting or the default judgment within an adequate time to pursue alternative legal
remedies, and (2) the lack of notice was not because of his own fault or negligence,
he did not need to show proof of a meritorious defense to the underlying suit. See
id. at 813–14. Further, his own lack of negligence is conclusively established. See
id.; cf. Duggan, 2011 WL 2183771, at *3–4. Thus, the trial court did not err in
granting summary judgment in favor of Sidhu.

                                      CONCLUSION

      For the foregoing reasons, we overrule Thottumkal’s issue and affirm the
trial court’s judgment.



                                /s/           Sharon McCally
                                              Justice

Panel consists of Justices McCally, Brown, and Wise.




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