Chief Justice                                                                                                            Clerk
James t. Worthen                                                                                                         Cathy S. Lusk

                                          Twelfth Court of Appeals
Justices                                                                                                                 Chief Staff Attorney
Sam Griffith                                                                                                             Margaret Hussey
Brian Hoyle




           Wednesday, January 10, 2007


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

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


           Style: Mitch Alford
                     v.

                     Robert W. Cary, M.D.

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

           Very truly yours,

           CATHY S. LUSK, CLERK



           By: KdjUJIA, ML
                 Katrina McClenny, Chief Deputy Clerk

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




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


                           IN THE COURT OF APPEALS


           TWELFTH COURT OF APPEALS DISTRICT


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


V.                                                       §              JUDICIAL DISTRICT COURT OF

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


                              MEMORANDUM OPINION ON REMAND

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



                                           Procedural History

        Alford filed a lawsuit against Cary. Although it is undisputed that Cary was served with
citation, he did not file an answer or appear. The trial court later entered a default judgment on
liability and a final judgment against Cary awarding Alford $ 1,951,188.00 in damages. Cary then
filed an original petition for a bill of review asking the trial court to vacate the judgment rendered
against him.
        In his affidavit attached to his petition for bill of review, Cary stated,


        I have been served with citation in lawsuits in which I have been sued on other occasions. On each
        of these occasions, I followed the established office procedure at Diagnostic Clinic. That procedure
        involves providing the citation to the business manager of Diagnostic Clinic who, in return, forwards
        the citation to the appropriate insurance carrier.



Later in his affidavit Cary stated, "I do not recall being served with citation or the Plaintiffs Petition
in Cause No. 2000-1977-A styled Mitch Alford v. Dr. Robert Cary in the 188th District Court of
Gregg County, Texas. If I had realized I had been sued, I would have followed [the] procedure
outlined above."

         Cary then filed a motion for summary judgment on his petition for bill of review. Later the
trial court signed an order granting the summaryjudgment motion, setting aside the prior default and
final judgments in favor of Alford, and granting a new trial on the merits. Two years later, on
August 30,2004, the trial court entered a take nothing judgment in favor ofCary and against Alford.
Alford timely filed a notice of appeal of the summaryjudgment setting aside his prior default and
final judgments against Cary.1
         We reversed the trial court's judgment, holding that Cary's bill of review affidavit was
insufficient to negate conscious indifference as the reason for his failure to answer Alford's lawsuit.
Alford v. Cary, No. 12-04-00314-CV, 2005 WL 2665442, at *5 (Tex. App.-Tyler Oct. 19, 2005).
Cary filed a petition for review, which was granted, and the Texas Supreme Court vacated our
judgment and remanded this case to us for reconsideration in light of its recent decision in Fidelity
and Guaranty Insurance v. Drewery Construction Co., 186S.W.3d571 (Tex. 2006) (per curiam).


                                                      Issues

         In three issues, Alford attacks the summaryjudgment. In his first issue, he contends that the
trial court erred in granting summaryjudgment on the bill of review because Cary failed to satisfy
the required elements established by the Texas Supreme Court in Alexander v. Hagedorn, 148 Tex.
565,226 S.W.2d 996 (1950). In his second issue, he contends that the trial court erred because Cary
failed to satisfy the relaxed requirements for setting aside a final judgment established by the Texas

Supreme Court in/Ta/iAs v. Rosser, 378 S.W.2d31 (Tex. 1964). In his third issue, Alford contends
that the trial court erred because granting the bill of review was contrary to Rule 239a of the Texas
Rules of Civil Procedure.

         In the first of three cross issues, Cary contends the bill ofreview was proper because Alford
did not present evidence to support the damages awarded in the final judgment ofFebruary 5, 2001.


         1There is no dispute betweenthe parties that the order granting Cary's bill of reviewand settingaside
Alford's default and final judgments was interlocutory and could not be appealed until the take nothing judgment
was entered in Cary's favor on August 30, 2004.
In his second cross issue, Cary contends he was not afforded due process. In his third cross issue,
Cary contends that if the trial court's ruling on the bill of review is reversed, we should remand the
case for a trial on the merits.



                                       Standard of Review

        The trial court granted Cary's bill of review on a traditional motion for summaryjudgment.
In reviewing a trial court's granting of summaryjudgment, we apply the following standards: 1) the
movant for summaryjudgment has the burden of showing that there is no genuine issue of material
fact and that he is entitled to judgment as a matter of law; 2) in deciding whether a disputed material
fact issue exists, we accept as true the evidence favorable to the nonmovant; and 3) we indulge every
reasonable inference in favor of the nonmovant and resolve any doubts in his favor. See Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). For a party to prevail on a motion for
summaryjudgment, he must conclusively establish the absence of any genuine question of material
fact and his entitlement to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Once the movant
has established a right to summaryjudgment, the nonmovant has the burden to respond to the motion
for summary judgment and present to the trial court any issues that would preclude summary
judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 6 71, 678-79
(Tex. 1979). All theories in support of or in opposition to a motion for summaryjudgment must be
presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). We will reverse the summary
judgment and remand the cause for a trial on the merits if the summaryjudgment was improperly
granted. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828-29 (Tex. 1970).


                                          Bill of Review

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

Applicable Law

       Although the bill of review is an equitable proceeding, before a litigant can successfully
invoke it to set aside a final judgment, he must allege and prove 1) a meritorious defense to the cause
of action alleged to support the judgment, 2) which he was prevented from making by the fraud,
accident, or wrongful act of the opposite party, 3) unmixed with any fault or negligence of his own.
Alexander, 148 Tex. at 568-69, 226 S.W.2d at 998. Alford contends that these are the elements

which Cary must establish before he is entitled to a summaryjudgment granting the bill of review.
However, Alford concedes that the Texas Supreme Court later relaxed these standards. See Hanks,
378 S.W.2d at 34-35. In Hanks, our supreme court held that


        assuming that the failure to file an answer is not intentional or the result of conscious indifference,...
        if a litigant is misled or prevented from filing a motion for new trial by misinformation of an officer of
        the court acting within his official duties, and this misinformation is given to the party or his counsel
        within the ten-day period for filing the motion for new trial so as to bring about the failure to file a
        motion for new trial in time, the trial court, upon finding that the party has a meritorious defense and
        that no injury will result to the opposite party, may grant the bill of review.



Id. at 35. Cary contends that the failure of the district clerk to serve him with the default and final
judgments was misinformation. See Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245
(Tex. 1994). Therefore, Cary argues, the Hanks standard should be applied here because of the
district clerk's failure to give him notice of the default and final judgments. We agree.
        The Amarillo Court ofAppeals, in an exhaustive analysis ofthe supreme court cases regarding
the bill of review, determined that the Hanks v. Rosser opinion effectively put the bill of review
plaintiff (such as Cary) in the same position he would have been in had he received correct
information from the court clerk and filed a timely motion for new trial. McDaniel v. Hale, 893
S.W.2d 652,660 (Tex. App.-Amarillo 1994, writ denied). Therefore, in examining whether there was
any fault or negligence on the part of the bill of review plaintiff, fault or negligence should be
measured by the standard for negligence of the nonanswering defendant in a motion for new trial
situation rather than the standard of negligence for a complainant in a typical bill of review
proceeding. Id.

        The rule is well established in Texas that a default judgment should be set aside and a new
trial ordered in any case in which 1) the failure of the defendant to answer before judgment was not
intentional or the result of conscious indifference on his part, but was due to a mistake or an
accident; 2) provided the motion for a new trial sets up a meritorious defense and 3) is filed at a time
when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.
Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939). To be
entitled to summaryjudgment, Cary was required to establish each ofthese elements as a matter of
law. At the trial court level and in his briefbefore us, Alford has not contested the second and third
elements of the Craddock test. Therefore, we will address the first element of Craddock shown

above.

Intentional or Conscious Indifference

         In determining whether a party acted intentionally or with conscious indifference, we look
to the party's knowledge and acts. Continental Cas. Co. v. Davilla, 139 SW.3d 374, 382 (Tex.
App.-Fort Worth 2004, pet. denied). The defaulting party satisfies its burden if the factual
assertions in the defaulting party's supporting affidavits are not controverted and the affidavits set
forth facts that, if true, negate intent or conscious indifference. Dir., State Employees Workers9
Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). Conscious indifference can be defined
as "the failure to take some action which would have been indicated to a person of reasonable
sensibilities under the same or similar circumstances." Freeman v. Pevehouse, 79 SW.3d 637,

647-48 (Tex. App.-Waco 2002, no pet.) (citations omitted).

         The Craddock standard is one of intentional or conscious indifference - that the defendant

knew it was sued but did not care. Fidelity, 183 SW.3d at 575-76. An excuse need not be a good
one to suffice. Id. at 576 (citing Craddock, 133 S.W.2d at 125). Our supreme court has often set
aside default judgments when papers were misplaced, though no one knew precisely how. Fidelity,
186 S.W.3d at 575. A default judgment can be set aside when the party served sets the citation
down and simply loses it. See Hanks, 378 SW.2d at 32, 36.
Application of Law to Facts

         As summary judgment evidence that he was not consciously indifferent and did not
intentionally fail to file an answer, Cary provided his affidavit addressing his failure to answer
Alford's lawsuit. In it he implied that if he had realized he was being served with citation of a
lawsuit, he would have taken the necessary steps to defend himself in court. His affidavit explains
that he had been sued before and that the office procedure had previously resulted in his being
defended in court. This is enough of an excuse to negate intentional or conscious indifference. See
Fidelity, 186 S.W.3d at 575-76. Alford's issues one and two are overruled.
                                           Finality of Judgment

        In his third issue, Alford contends that the trial court erred by granting the bill of review
because it was contrary to Rule 239a,2 which states in relevant part:


        Immediately upon the signing of the judgment, the clerk shall mail written notice thereof to the party
        against whom the judgment wasrendered at the address shown in the certificate and note the fact of
        such mailing on the docket.... Failure to comply with the provisions of this Rule shall not affect the
        finality ofjudgment.



Cary responds that in Petro-Chemical Transport, Inc. v. Carroll, 514S.W.2d240(Tex. 1974), the
Texas Supreme Court determined that a bill ofreview is appropriate in a fact situation similar to that
in the case before us. There the losing party sought a bill of review attacking a judgment when
notice of the judgment was not mailed by the clerk as required by Rule 306d.3 The supreme court
stated as follows:



       Rule 306d simply provides that the clerk's failure to comply with its provisions shall not affect the
       finality of the judgment. By the express terms of Rule 329b, however, a final judgment may be set
       aside "by bill of review for sufficient cause, filed within the time allowed by law." The finality of
       judgments is an important consideration, but in our opinion a court of equity should not be utterly
       without power to grant relief where the right to attack an unjust judgment has been lost through the
       failure of the clerk to perform the mandatory duty imposed by Rule 306d.


Id. at 245. The supreme court then held that a bill ofreview may be predicated on the clerk's failure
to send the required notice. Id. Here, both parties agree that the clerk of the court failed to send
these notices to Cary after Alford had obtained both the default and final judgments. We hold that
a bill of review is the proper procedure to attack a final judgment when the clerk has failed to send
the required notices. Alford's third issue is overruled.


                                                  Conclusion


       Having overruled Alford's three issues, there is no need for us to address Cary's three cross
issues. See Tex. R. App. P. 47.1. Accordingly, the judgment of the trial court is affirmed.


       2Except as otherwise indicated, the rules cited in this opinion are theTexas Rules of Civil Procedure.

       3Thiswas the predecessor to rule 306a(3).
                                                                JAMES T. WORTHEN
                                                                    Chief Justice




Opinion delivered January 10, 2007.
Panel consisted of Worthen, C.J., Griffith, J. and Hoyle, J.




                                                    (PUBLISH)
                                COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT


                                          JANUARY 10, 2007



                                       NO. 12-04-00314-CV


                                          MITCH ALFORD,
                                                 Appellant
                                                     V.

                                     ROBERT W. CARY, M.D.,
                                                 Appellee

                            Appeal from the 188th Judicial District Court
                          of Gregg County, Texas. (Tr.Ct.No. 2002-272-A)

                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,

and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below Be in All Things Affirmed and that all costs of this appeal are hereby

adjudged against the appellant, Mitch Alford, and that this decision be certified to the court below

for observance.


                       James T. Worthen, Chief Justice.
                       Panel consisted ofWorthen, C.J., Griffith, J., and Hoyle, J.
