John Bryan Langdon v. Leslie Mathison Gilbert

ACCEPTED
03-15-00305-CV
5651450
THIRD COURT OF APPEALS
AUSTIN, TEXAS
September 24, 2015 6/12/2015 10:06:06 AM
JEFFREY D. KYLE
CLERK
APPELLATE CASE NO. 03-15-00305-CV

RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
JOHN BRYAN LANGDON
6/12/2015 10:06:06 AM
Appellant JEFFREY D. KYLE
Clerk
v.

LESLIE MATHISON GILBERT
Appellee

On Appeal from the
County Court at Law Number Two of Travis County, Texas

APPELLANT BRIEF

__________________________________________________________________

Identity of Parties and Counsel

Leslie Mathison Gilbert John Bryan Langdon
Defendant at the Trial Court Level Plaintiff at the Trial Court Level

Evans Kosut Davidson, PLLC Law Office of Tom Murphy
Attn: John M. Davidson Attn: Tom Murphy
16000 Stuebner Airline Rd., Ste. 200 9600 Great Hills Trail, Ste. 150W
Spring, Texas 77379 Austin, Texas 78759
(281) 251-7900 (512) 477-5680
(281) 251-7909 Fax (512) 493-0691 Fax
Email: jdavidson@ekklaw.com Email: tom@tommurphyslaw.com
Trial Attorney and Trial Attorney and
Presumed Appellee Counsel for Gilbert Appellate Counsel for Langdon

1
TABLE OF CONTENTS
PAGE

Identity of Parties and Counsel ……………………………………………………... 1

Table of Contents ……………………………….………………………………… 2

Index of Authorities ………………………………………………………………. 3

Statement of Case ………………………………………………………………… 6

Issues Presented …………………………………………………………………... 7

Statement of Facts ………………………………………………………………… 8

Summary of Arguments ………………………………………………………….. 11

Argument ………………………………………………………………………… 13

I. Are attorneys’ fees awardable to a prevailing
party for a Bill of Review …………......................... 13

II. Was the trial court’s Granting of an Order for the
Notice of Non-Suit without Prejudice
in the Underlying Suit Appropriate? ……………… 19

III. Did the trial court improperly enter a Final,
Appealable Order/Judgment? ………………...…… 21

Conclusion and Prayer……………………………………………………………. 23

Certificate of Compliance ………………………………………………………... 25

Certificate of Service …………………………………………………………….. 26

Appendix ………………...………………………………………………………. 27

2
INDEX OF AUTHORITIES

PAGE

1A TexJur Actions §49 and §62 ………………………………………………… 17

34 TexJur Equity §2 ……………………………………………………………...17

Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884
(Tex. App. – Dallas 209, no pet.) ……………………………………………….. 14

Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. —Dallas 1992, no writ) …… 18

Black’s Law Dictionary, 10th ed. (2014) ………………………………............... 16

CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d 674, 688
(Tex. App. – Fort Worth 2013, pet. granted, judgm’t vacated w.r.m.) …. 13 and 15

Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627
(Tex. App. – San Antonio 2011, no pet.) ……………………………………….. 14

Franzetti v. Franzetti, 120 S.W.2d 123, 125-26
(Tex. App. – Austin 1938, no writ) ………………………………………………17

G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs.,
930 S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied) ................................ 15

Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174
(Tex. 1992) .…………………………………..…………………………………… 15

Hill v. Thompson & Knight, 756 S.W.2d 824, 826
(Tex. App. – Dallas 1988, no writ) ……………………………………….……… 15

In Re Smith, 2007 Tex. App. LEXIS 1153 *4
(Tex. App. – Houston [1st Dist.] 2007, no pet.) …………………………………... 17

Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d 650, 655
(Tex. 2009) …………………...………………………………………………….. 16

3
Kessler v. Kessler, 693 S.W.2d 522, 525
(Tex. App. - Corpus Christi 1985, writ ref'd n.r.e.) ………………………………..20

Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799
(Tex. 1974) ...…………………….............................................................................. 13

Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299
(Tex. App. —San Antonio 1999, pet. denied) ……………………………..18 and 19

Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d 390, 392
(Tex. App.-Houston [1st Dist.] 2004, no pet.) ……………………………. 20 and 21

MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663
(Tex. 2009) ………………………………………………………………………... 13

Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58
(Tex. 2008) ………………………………………………………………………. 13

Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982) …………………….. 18 and 19

Mitchell v. LaFlamme, 60 S.W.3d 123, 130
(Tex. App. – Houston [14th Dist.] 2000, no pet.) ……………………………….... 14

Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C.,
126 S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ……….. 19

Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03
(Tex. App.--Austin 1981, no writ) ……………………………………………….. 18

Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64
(Tex. App.-Houston [1st Dist.] 1992, no writ) …………………………… 20 and 21

Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104, 108
(Tex. 2010) ..………………………………………………………………………. 14

Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593
(Tex. 1996) ………………………………...……………………………………… 13

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866
(Tex. 2010) ………………………………………………………………...16 and 17

4
TEXAS RULES OF CIVIL PROCEDURE PAGE

TEX. R. CIV. P. §54 …………………………………………………….. 14 and 15

TEX. R. CIV. P. §329b(d) ….…………………………………………………... 19

TEX. R. CIV. P. §329b(f) ………………………………………………………...16

5
STATEMENT OF CASE

1) Nature of the case. This is an appeal of a summary judgment for a Bill of
Review. The Underlying Suit is related to the rental of real property with a
cause of action for failure to return rental security deposit and unjust
enrichment related to a leasehold.

2) Name of the trial judge. Honorable Todd T. Wong

3) Trial court. County Court at Law Number Two of Travis County, Texas

4) Disposition in the trial court. The trial court rendered a summary judgment
against Appellee, Leslie Mathison Gilbert entering an Agreed Order to grant
a Bill of Review. The underlying judgment was in Cause No. C-1-CV-13-
009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a default
judgment rendered on or about March 19, 2014.

After granting the Bill of Review, Appellee non-suited the Underlying Suit
after the trial court’s plenary power expired in the Underlying Suit.

Appellee subsequently filed a Motion for Summary Judgment for an Order
determining whether or not attorneys’ fees can be awarded for a Bill of
Review. The Order granting Appellee’s Motion for Summary Judgment
regarding the issue of attorneys’ fees also included a Mother Hubbard Clause
that made the Order/Judgement final and appealable without a determination
of the merits of the Underlying Suit.

5) Parties in the trial court. John Bryan Langdon was the Plaintiff; Leslie
Mathison Gilbert was the Defendant.

6
ISSUES PRESENTED

1. Are attorneys’ fees awardable to a prevailing party for a Bill of Review?

2. Was the trial court’s granting of an Order for the Notice of Non-Suit without
Prejudice in the Underlying Suit Appropriate?

3. Did the trial court improperly enter a Final, Appealable Order/Judgment?

7
STATEMENT OF FACTS

The Appellee filed suit against the Appellant for damages related to the failure

to provide an accounting and refund of a security deposit in Cause No. C-1-CV-13-

009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a default

judgment rendered on or about March 19, 2014.

In that cause, Appellant was found liable for bad faith in failing to provide an

accounting and refund of Appellee’s security deposit of $4,000.00, as well as retaining

an overpayment of rents in the amount of $1,500.00. Attorney’s fees, a civil penalty

of $100.00 and trebling of damages of $12,000.00 was entered against Appellant.

In filing the Underlying Suit, Appellee tendered service of process to the Texas

Secretary of State, alleging that the Secretary of State was the agent for Appellant

because Appellant had not designated or maintained a resident agent for service in

Texas, that he engaged in business in Texas, does not maintain a regular place of

business in Texas, and that the lawsuit arose from Appellant’s business in Texas. As

such, Appellee alleged that the Secretary of State was the proper agent for service.

Upon serving the Secretary of State, Appellee was required to provide the

Secretary of State a document that contains a statement of the name and address to

deliver Notice of Citation to Appellant.

Appellee provided the Secretary of State the following address: 275 2nd Ave.,

Long Branch, New Jersey 07740. This address was not the address of Appellant.

8
Appellant’s correct address was 275 2nd Ave. Front, Long Branch, New Jersey

07740.

On April 24, 2014, thirty-six (36) days after the Default Judgment, Appellant

filed a Bill of Review to set aside or vacate the Default Judgment alleging due

process violation for improper service by providing the Secretary of State the wrong

address to serve Appellant.

On July 28, 2014, the trial court denied Appellant’s Motion for Summary

Judgment for a Bill of Review and granted Appellee’s Motion for Summary

Judgment to deny a Bill of Review.

Appellant filed an appeal of the trial court’s original Order granting

Appellee’s Motion for Summary Judgment denying a Bill of Review.

On December 31, 2014, this Court issued a Memorandum Opinion that

reversed the trial court’s judgment and remanded for further consideration.

On January 30, 2015, Appellant filed another Motion for Summary Judgment

to have a Bill of Review granted. On March 27, 2015, Appellee conceded that a Bill

of Review should be granted. On April 2, 2015, the trial court entered an Agreed

Order granting Summary Judgment for a Bill of Review. However, the Agreed

Order denied attorneys’ fees with a later trial date to determine the amount of

attorneys’ fees, if any, were to be awarded. There was not a determination of the

merits of the Underlying Suit.

9
On April 2, 2015, Appellant filed a Notice of Non-Suit without Prejudice. On

April 8, 2015, the trial court signed an Order granting the Non-Suit without Prejudice

for the Underlying Suit.

On April 20, 2015, Appellee filed a Motion for Summary Judgment seeking

a ruling that attorneys’ fees are not awardable for a Bill of Review. On May 12,

2015, the trial court entered an Order granting Appellee’s Motion for Summary

Judgment ruling that recovery of attorneys’ fees in a Bill of Review is not

recoverable for a Bill of Review. In the Order granting Appellee’s Summary

Judgment, the trial court signed the Order with a Mother Hubbard Clause making it

a final, appealable order without a determination of the merits of the causes of action

in the Underlying Suit.

10
SUMMARY OF ARGUMENT

The general rule is that litigants must pay their own attorneys’ fee. However,

when authorized by statute, contract, or equity, then attorneys’ fees may be awarded.

The parties entered into a contract that provided that the prevailing party in

any legal proceeding is to be awarded attorneys’ fees and cost, thereby creating an

exception to the general rule and authorizes an award of attorneys’ fees.

Additionally, on April 8, 2015, the trial court signed an Order granting a

Notice of Non-Suit without Prejudice in the Underlying Suit. The trial court did not

have authority to enter an Order of Dismissal for the Underlying Suit because the

trial court’s plenary power had expired. The only way to make a determination of

the causes of action in the Underlying Suit, is in a Bill of Review, and where the

movant in a Bill of Review prevails, the judgment previously entered is set aside,

and a new judgment, based on the evidence heard on the bill of review, must be

entered. Resultantly, the trial court had no authority to enter an Order of Dismissal

for the Underlying Suit.

Appellant pled for attorneys’ fees and prevailed on the Bill of Review, and,

therefore, should have been awarded attorneys’ fee. In the alternative, the trial court

improperly entered an Order that included a Mother Hubbard Clause that prevented

a determination of the merits of the causes of action in the Underlying Suit, and

therefore, a determination of the prevailing party, which would also determine an

11
award of attorneys’ fees based upon the merits because attorneys’ fees can be

awarded in a Bill of Review to the same extent that attorneys’ fees could be awarded

in the Underlying Suit.

12
ARGUMENT

I. Are Attorneys’ Fees Awardable to a Prevailing Party for a Bill of Review?

1. General Rule to Award Attorneys’ Fees

The general rule is that litigants must pay their own attorneys’ fee. MBM Fin.

Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009). However,

recovery of attorneys’ fees is permitted when authorized by statute, contract between

the litigants, or under equity. Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d

55, 58 (Tex. 2008); Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex. 1974).

Such authorization must be express and cannot be implied. Travelers Indem. Co. v.

Mayfield, 923 S.W.2d 590, 593 (Tex. 1996).

The parties entered into a lease agreement that provided that “[a]ny person

who is a prevailing party in any legal proceeding brought under or related to the

transaction described in this lease is entitled to recover prejudgment interest,

attorney’s fees, cost of service, and all other costs of the legal proceeding from the

non-prevailing party.” Lease Agreement at ¶29 (Appendix # 1). Since the parties

entered into a contractual agreement that authorized an award of attorneys’ fee, then

an exception to the general rule is created. Accordingly, attorneys’ fee can be

awarded to the prevailing party of a legal proceeding provided the legal proceeding

was related to the contract. See, e.g., CenterPlace Props., Ltd. v. Columbia Med.

Ctr., 406 S.W.3d 674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t

13
vacated w.r.m.). Whether attorneys’ fees are available under a contract is a question

of law that is reviewed de novo. Fitzgerald v. Schoeder Ventures II, LLC, 345

S.W.3d 624, 627 (Tex. App. – San Antonio 2011, no pet.)

2. Prerequisites for Recovery of Attorneys’ Fee Met

A party must plead for attorneys’ fee. Alan Reuber Chevrolet, Inc. v. Grady

Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.). A party

should also specify the authority under which the party claims it is entitled to recover

attorneys’ fee, but if the party fails to do so, the party may still recover attorneys’

fee only if (1) the party pleads facts that support a claim for attorneys’ fee or (2) the

opposing party does not object to the failure to identify the authority. Mitchell v.

LaFlamme, 60 S.W.3d 123, 130 (Tex. App. – Houston [14th Dist.] 2000, no pet.)

Appellant pled for attorneys’ fees in his Second Amended Petition for Bill of Review

at ¶30 (Appendix #2) and identified the Lease Agreement as the authority. Moreover,

Appellee made no objection to any failure to identify the authority for attorneys’

fees. Consequently, Appellant satisfactory pled for attorneys’ fee.

Appellant must also satisfy all conditions precedent. Solar Applications Eng’g

v. T.A. Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010). In Appellant’s Second

Amended Petition for Bill of Review at ¶4, he specifically pled “All conditions

precedent to Plaintiff’s right to recover has been performed or has occurred.” This

satisfies the requirement of all conditions precedent. Tex. R. Civ. P. §54. A Rule 54

14
pleading, shifts the burden of pleadings (not of proof) to the Appellee to specifically

deny conditions precedent that have not occurred and a simple denial that some

conditions precedent have not occurred is not satisfactory. Id.; Greathouse v.

Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174 (Tex. 1992); Hill v. Thompson &

Knight, 756 S.W.2d 824, 826 (Tex. App. – Dallas 1988, no writ). At no time did

Appellee specifically deny any conditions precedent. Resultantly, all conditions

precedent have been satisfied for the recovery of attorneys’ fees.

It is further axiomatic that Appellant was represented by an attorney, as

evidenced by the trial court record and appellate record. There is also evidence of

attorneys’ fees being incurred, as evidenced by the Attorneys’ Fee affidavit

submitted as part of Appellant’s second Motion for Summary Judgment as Exhibit

B (Appendix #3). As for proving whether or not the fees were reasonable and

necessary, that question could not be answered because of the trial court’s Order

ruling that attorneys’ fee could not be recovered in a Bill of Review.

The final requirement that must be met is whether or not a Bill of Review is a

legal proceeding related to the contract instituted and meet the requirement of the

contractual provisions. See, e.g., CenterPlace Props., Ltd., 406 S.W.3d at 688; G.

Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930 S.W.2d 124, 130 (Tex.

App. – Tyler 1996, writ denied). The Lease Agreement provides for “[a]ny person

who is a prevailing party in any legal proceeding brought under or related to the

15
transaction described in this lease is entitled to recover prejudgment interest,

attorney’s fees, cost of service, and all other costs of the legal proceeding from the

non-prevailing party.” Lease Agreement at ¶29 (Appendix # 1).

3. Prevailing Party

The Lease Agreement does not define “prevailing party”. If the Lease

Agreement does not define who is a prevailing party, the trial courts will apply the

term’s ordinary meaning. Intercontintental Grp. v. KB Home Lone Star, L.P., 295

S.W.3d 650, 655 (Tex. 2009). A plaintiff is a prevailing party, under an ordinary

meaning, if the trial court awarded plaintiff an enforceable judgment in the form of

monetary damages or equitable relief. Id. at 653. The trial court granted Appellant

equitable relief by signing an Agreed Order granting a Bill of Review. 1 Accordingly,

Appellant was the prevailing party.

4. Legal Proceeding Related to the Contract

Likewise, there can be no question that a Bill of Review, although

occasionally described as an ‘equitable remedy’, nonetheless qualifies as a “legal

proceeding”. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010).

Black’s Law Dictionary, 10th ed. defines the term “legal proceeding” as follows:

Any proceeding authorized by law and instituted in a court or tribunal to
acquire a right or to enforce a remedy.

1
Appellee conceded that a Bill of Review should be granted with the filing of her Response to
Appellant’s second Motion for Summary judgment filed on March 27, 2015. (Appendix #4)
16
Given that the Bill of Review procedure is specifically authorized by TRCP 329b(f),

to acquire the right to belatedly set aside an invalid judgment, there can be little

question that Appellant’s Bill of Review qualifies as a “legal proceeding” under the

Black’s definition. Travelers, ibid.

This is especially so in Texas – despite any superficial labelling of Bill of

Review as an equitable remedy – because our state’s unique legal heritage means

that it does not, and never has, recognized any meaningful division between law and

equity. See 1A TexJur Actions §49 and §62, and 34 TexJur Equity §2, citing

Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. – Austin 1938, no writ):

The distinctions between law and equity have never obtained in Texas…At
most, the distinction in this states is a narrow one. In some aspects it may be
said to be more one of form than of substance.

Given such antecedents, it is of little surprise that a Texas court has explicitly

stated that "[a] bill of review is an independent legal proceeding brought to set aside

a judgment that is no longer appealable" (emphasis added). In Re Smith, 2007 Tex.

App. LEXIS 1153 *4 (Tex. App. – Houston [1st Dist.] 2007, no pet.). Resultantly, a

Bill of Review is a legal proceeding.

Furthermore, this legal proceeding is related to the transaction of renting the

leasehold. Appellee originally sued, in the Underlying Suit, for a cause of action

related to the security deposit. See Appellee’s First Amended Petition (Appendix

#5). Subsequently, Appellant filed his Bill of Review to set aside the default

17
judgment, which too is related to the security deposit, and therefore related to the

transaction of renting the leasehold. As such, the legal proceeding was related to the

transaction, and therefore, Appellant was entitled to a determination of his attorneys’

fees for being the prevailing party in the Bill of Review.

5. Attorneys’ Fees are Awardable in a Bill of Review

There is authority allowing for the recovery of attorneys’ fees in a Bill of

Review. A party who successfully prosecutes a Bill of Review is entitled to recover

attorney's fees if attorneys' fees are authorized in the prosecution or defense of the

Underlying Suit. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. - Dallas 1992,

no writ) citing Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982). Attorney's fees

are recoverable in a Bill of Review proceeding to the same extent as attorneys’ fees

were recoverable at trial of the Underlying Suit. Lowe v. Farm Credit Bank of Texas,

2 S.W.3d 293, 299 (Tex. App. —San Antonio 1999, pet. denied); See also Meece,

631 S.W.2d at 730; Bakali, 830 S.W.2d at 257; Rodriguez v. Holmstrom, 627 S.W.2d

198, 202-03 (Tex. App.--Austin 1981, no writ).

In the Underlying Suit, there is a basis for an award of attorneys’ fees.

Appellee sued for failure to provide an accounting of a security deposit. On February

18, 2014, Appellee filed a Motion for Default Judgment Motion for Default

Judgment and presented as evidence the lease agreement. (Appendix #6). Appellant

has recognized that attorneys’ fees were awardable to the prevailing party based

18
upon the lease agreement. The lease agreement is the authority for an award of

attorneys’ fees for either party in the Underlying Suit.

Since the trial court could have awarded Appellant attorney's fees at the trial

of the Underlying Suit, then Appellant is entitled to attorneys’ fees in this Bill of

Review. Lowe, 2 S.W.3d at 299; Meece, 631 S.W.2d at 730. In our case, Appellant

could have been awarded attorney’s fees under the terms of the lease agreement.

Therefore, attorneys’ fees are awardable to Appellant, if he is the prevailing party in

his Bill of Review because there is authority for an award of attorneys’ fees in the

Underlying Suit based on the lease agreement.

II. Was the Trial Court’s Granting of an Order for the Notice of Non-Suit without
Prejudice in the Underlying Suit Appropriate?

The trial court did not have authority to enter an Order granting a Non-Suit

without Prejudice. On March 19, 2014 (Appendix #7), the trial court granted a

default judgment. Absent a motion that extends the trial court's plenary power, the

trial court has plenary power to modify its final judgment or order within 30 days of

signing it, and the trial court loses jurisdiction to modify its judgment after the 30

days had expired. TEX. R. CIV. P. 329b(d); Moore Landrey, L.L.P. v. Hirsch &

Westheimer, P.C., 126 S.W.3d 536, 538-39 (Tex. App. - Houston [1st Dist.] 2003,

no pet.). Since there was not any filing that would extend the trial court’s plenary

power, then its plenary power expired on April 18, 2014.

19
Once plenary power has expired, the trial court loses jurisdiction to modify its

judgment. Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d 390, 392

(Tex. App. - Houston [1st Dist.] 2004, no pet.).

However, on April 8, 2015 the trial court entered the Order granting the Non-

Suit without Prejudice (Appendix #8). This was not an effective modification of the

March 19, 2014 judgment because it was outside the trial court's plenary power. Id.

at 392. Accordingly, the trial court had no authority to sign an Order granting Non-

Suit without Prejudice.

This is important because Appellee’s Non-Suit without Prejudice in the

Underlying Suit, was an attempt on the part of Appellee to cut off attorneys’ fees by

trying to contend that because of the Non-Suit without Prejudice in the Underlying

Suit occurred, there was no basis for an award of attorneys’ fees in the Underlying

Suit.

However, any subsequent determination of Appellee’s cause of action in the

Underlying Suit can only be determined through the Bill of Review. “[A] final

judgment in a bill of review action should either deny any relief to the petitioner or

grant the bill of review and set aside the former judgment, insofar as it is attacked,

and substitute a new judgment which properly adjudicates the entire controversy.”

Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex. App. - Houston [1st

Dist.] 1992, no writ) (citing Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. -

20
Corpus Christi 1985, writ ref'd n.r.e.).

Appellee’s attempt to Non-Suit the Underlying Suit is ineffective because the

trial court lacked plenary power to modify its Orders/Judgment after plenary power

has expired. Martin, 176 S.W.3d at 392. Resultantly, attorneys’ fees can be awarded

in a Bill of Review because the issues in the Underlying Suit must now be

determined with a new judgment through the Bill of Review.

III. Did the trial court Improperly Enter a Final Order/Judgment?

The trial court should not have entered an Order/Judgment that was final and

appealable because it prevents an adjudication of the issues of Underlying Suit.

As stated above, “[A] final judgment in a bill of review action should either

deny any relief to the petitioner or grant the bill of review and set aside the former

judgment, insofar as it is attacked, and substitute a new judgment which properly

adjudicates the entire controversy." Shahbaz, 827 S.W.2d at 64. By entering a final

and appealable Order/Judgment before an actual determination of the merits of the

causes of action, then Court prevented an adjudication of the entire controversy, in

violation of Appellant’s right to have a determination of the merits of a causes of

action in the Underlying Suit in his Bill of Review action.

This of course would lead to a fact that neither party was not a prevailing party

at the time the trial court entered its final and appealable in the Bill of Review action.

However, this is acceptable because this matter would be remanded back to the trial

21
court to permit the parties to have a determination of the merits of the causes of

action in the Underlying Suit, determine who the prevailing party is, and a

determination of attorneys’ fees, which could be awarded in the Underlying Suit,

and therefore in the Bill of Review action.

22
CONCLUSION AND PRAYER

A party that successfully prosecutes or defends a Bill of Review can be

awarded their attorneys’ fees if there is a basis to award them in the Underlying

Suit.

The parties entered into a lease agreement that provides for the prevailing

party in a legal proceeding be awarded their attorneys’ fees. This creates an

exception to the general rule is that litigants must pay their own attorneys’ fee.

Appellant satisfied the conditions required by the lease agreement to be awarded

attorneys’ fees. Appellant was the prevailing party, as the trial court granted the

Bill of Review, which Appellee also conceded that a Bill of Review should be

granted. The Underlying Suit and the Bill of Review were related to the transaction

of leasing the leasehold, and a Bill of Review is legal proceeding. Moreover, it is

clear that attorneys’ fees are permissible in a Bill of review if they could be awarded

in the Underlying Suit. In this case, attorneys’ fees could have been awarded to

Appellant in the Underlying Suit based on the lease agreement.

The trial court’s granting of the Order for the Notice of Non-Suit without

Prejudice is without effect because the trial court’s plenary power had expired, and

therefore, had no authority to modify the judgment in the Underlying Suit. As such,

a determination of the merits of the causes of action of the Underlying Suit can only

be made through a Bill of Review, which means a determination of the prevailing

23
party and that attorneys’ fees are awardable in a Bill of Review because attorneys’

fees could be awarded in the Underlying Suit.

In the alternative, the trial court improperly entered a final appealable Order

that prevented a determination of the merits of the causes of action in the Underlying

Suit, and a determination of the prevailing party. As such, this matter should be

remanded back to the trial for a determination of the amount of attorneys’ fees to be

awarded; or remanded back for a trial on the merits for a determination of the merits

of the causes of action for the Underlying Suit, including a determination of

attorneys’ fees for the prevailing party.

24
CERTIFICATE OF COMPLIANCE

I, Tom Murphy, certify that this computer-generated document that is subject
to a word limit under Tex. R. App. P. 9.4(i) that the number of words in the
document is 5248. I hereby certify that I am relying on the word count of the
computer program used to prepare the document.

By: _______________________________
Tom Murphy

25
Respectfully submitted,

LAW OFFICE OF TOM MURPHY

By: ________________________________
Tom Murphy
TSB # 24013217
9600 Great Hills Trail, Ste. 150W
Austin, Texas 78759
(512) 477-5680
(512) 493-0691 Fax
Email: tom@tommurphyslaw.com
Attorney for Appellant Langdon

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above was delivered to the
following parties or their attorneys of record pursuant to the TRCP on June 11, 2015.

Evans Kosut Davidson, PLLC Court of Appeals
Attn: John M. Davidson Third District of Texas
16000 Stuebner Airline Rd., Ste. 200 Attn: Jeffrey D. Kyle, Clerk of the Court
Spring, Texas 77379 PO Box 12547
(281) 251-7900 Austin, Texas 78711-2547
(281) 251-7909 Fax
Email: jdavidson@ekklaw.com
Trial Attorney and Presumed
Appellate Counsel for Gilbert
____________________________________
Tom Murphy

26
APPENDIX

Appendix #1. Copy of the Lease Agreement

Appendix #2. Copy of the Second Amended Petition for Bill of Review

Appendix #3. Copy of Exhibit B (Attorneys' Fees) of Motion for Summary
Judgment

Appendix #4. Appellee's Response to Appellant's Motion for Summary
Judgment

Appendix #5. Appellee's First Amended Petition

Appendix #6. Motion for Default Judgment

Appendix #7. Final Judgment in the Underlying Suit

Appendix #8. Order Granting Appellee’s Notice of Non-Suit without Prejudice

Appendix #9. TEX. R. CIV. P. 54

Appendix #10. TEX. R. CIV. P. 329b(d)

Appendix #11. TEX. R. CIV. P. 329b(f)

Appendix #12. 1A TexJur Actions §49 and §62

Appendix #13. 34 TexJur Equity §2

Appendix #14. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287
S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.)

Appendix #15. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. —Dallas
1992, no writ)

Appendix #16. Black’s Law Dictionary, 10th ed. (2014)

27
Appendix #17. CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d
674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t
vacated w.r.m.)

Appendix #18. Fitzgerald v. Schoeder Ventures II, LLC, 345 S.W.3d 624, 627
(Tex. App. – San Antonio 2011, no pet.)

Appendix #19. Franzetti v. Franzetti, 120 S.W.2d 123, 125-26 (Tex. App. –
Austin 1938, no writ)

Appendix #20. G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., 930
S.W.2d 124, 130 (Tex. App. – Tyler 1996, writ denied)

Appendix #21. Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 174
(Tex. 1992)

Appendix #22. Hill v. Thompson & Knight, 756 S.W.2d 824, 826 (Tex. App. –
Dallas 1988, no writ)

Appendix #23. In Re Smith, 2007 Tex. App. LEXIS 1153 *4 (Tex. App. –
Houston [1st Dist.] 2007, no pet.)

Appendix #24. Intercontintental Grp. v. KB Home Lone Star, L.P., 295 S.W.3d
650, 655 (Tex. 2009)

Appendix #25. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App. - Corpus
Christi 1985, writ ref'd n.r.e.)

Appendix #26. Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex. 1974)

Appendix #27. Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299 (Tex.
App. —San Antonio 1999, pet. denied)

Appendix #28. Martin v. Tex. Dept. of Family & Protective Servs., 176 S.W.3d
390, 392 (Tex. App.-Houston [1st Dist.] 2004, no pet.)

Appendix #29. MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663
(Tex. 2009)

28
Appendix #30. Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58
(Tex. 2008)

Appendix #31. Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982)

Appendix #32. Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App. –
Houston [14th Dist.] 2000, no pet.)

Appendix #33. Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126
S.W.3d 536, 538-39 (Tex. App.-Houston [1st Dist.] 2003, no
pet.)

Appendix #34. Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex. App. -
Austin 1981, no writ)

Appendix #35. Shahbaz v. Feizy Imp. & Exp. Co., 827 S.W.2d 63, 64 (Tex.
App.-Houston [1st Dist.] 1992, no writ)

Appendix #36. Solar Applications Eng’g v. T.A. Oper. Corp., 327 S.W.3d 104,
108 (Tex. 2010)

Appendix #37. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex.
1996)

Appendix #38. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 866 (Tex. 2010)

29
APPENDIX
#1
4109 Michael Ne ill
Re~denUalLease~ncerning: ~~~~~~~~~~~~~~=u=s~t=i~n~~T=~~~7~8~7~3~0~~~~~~~~~~~~~

B. For the purposes of paying rent and any late charges, the mailbox is not the agent for receipt for Landlord (the
postmark date is not the date Landlord receives the payment). The parties agree that the late charge is based on a
reasonable estimate of uncertain damages to the Landlord that are incapable of precise calculation and result from
late payment of rent. Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies
under Paragraph 27.

7. RETURNED PAYMENT: Tenant will pay Landlord$ 25. 00 for each payment Tenant tenders to
Landlord which is returned or not honored by the institution on which it is drawn for any reason, plus any late charges
.until landlord receives payment. Tenant must make any returned payment good by paying such amount(s) plus any
associated charges in certified funds.

8. APPLICATION OF FUNDS: Regardless of any notation on a payment Landlord may apply funds received from Tenant
first to any non-rent obligations of Tenant. including but not limited to late charges returned payment charges repairs,
brokerage fees periodic utilities, pet charges, and then to rent.

9. PETS:

A. Unless the parties agree otherwise in writing, .I.enanLm~.ru:ll_p_ermi.t.....fMlll temporarily,_am(_p.et_mL1M Property
(including but not limited to any mammal, reptile, bird, fish, rodent, or insect}.

B. If Tenant violates this Paragraph 9 or any agreement to keep a pet on the Property, Landlord may take all or any of
the following action:
(1) declare Tenant to be in default of this lease and exercise Landlord's remedies under Paragraph 27;
(2) charge Tenant, as additional rent, an initial amount of$ and $ - -- - -- --
per day thereafter per pet for each day Tenant violates the pet restrictions;
(3) remove or cause to be removed any unauthorized pet and deliver it to appropriate local authorities by providing
at least 24-hour written notice to Tenant of Landlord's intention to remove the unauthorized pet; and
(4) charge to Tenant the Landlord's cost to:
(a) remove any unauthorized pet;
(b) exterminate the Property for fleas and other insects;
(c) clean and deodorize the Property's carpets and drapes; and
(d) repair any damage to the Property caused by the unauthorized pet.

C. When taking any action under Paragraph 98 Landlord will not be liable for any harm, injury, death, or sickness to
any pet.

10. SECURITY DEPOSIT:

A . Security Deposit: On or before execution of this lease, Tenant will pay a security deposit to Landlord in the amount
of$ 3, 000 . 00 . "Security deposit" has the meaning assigned to that term in §92.102, Property
Code.

B. Interest: No interest or income will be paid to Tenant on the security deposit. Landlord may place the security
deposit in an interest-bearing or income-producing account and any interest or income earned will be paid to
Landlord or Landlord's representative.

C. Bfilun.d.: Tenant must give Landlord at feast thirty (30) days written notice of surrender before Landlord is obligated
to refund or account for the security deposit.

Notices about Security Deposits:
(1) §92.108, Property Code provides that a tenant may not withhold payment of any portion of the last month's
rent on grounds that the security deposit is security for unpaid rent.

(TAR-2001) 6-1-10 Tenants: _ _ . _ _ , _ _ , _ _ & Landlord or Landlord's Representative: ~ __ Page 3 of 14

P1oduced with ZipForm~ by zlploglx 18070 Fifteen Mlle Road. F1asor, Michigan 48026 VNIW zipl ogjx com Lease Listing
REDACTED PER TRAP 9.9
APPENDIX
#2
CAUSE NO. C-1-CV-14-003653 Filed: 4/21/2015 4:58:55 PM
Dana DeBeauvoir
JOHN BRYAN LANGDON § IN THE COUNTY COURT Travis County Clerk
Plaintiff, § C-1-CV-14-003653
§ Sophia Delacroix
v. § AT LAW #2
§
LESLIE MATHISON GILBERT, §
Defendant. § TRAVIS COUNTY, TEXAS

PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION FOR BILL OF REVIEW

COMES NOW, John Bryan Langdon, Plaintiff complaining of Leslie Mathison Gilbert, Defendant, and for cause of

action would show the following:

I. DISCOVERY

1. Discovery in this case is intended to be conducted under Level 1 of Rule 190 of the Texas Rules of Civil
Procedure. Plaintiffs seeks monetary relief aggregating $50,000 or less, excluding costs, prejudgment interest,
and attorney’s fees.

II. PARTIES AND SERVICE

2. Plaintiff is John Bryan Langdon, (“Mr. Langdon” or “Plaintiff”) is an individual currently residing at
1004 West Wayne St., Fort Wayne, Indiana 46802.

3. Defendant is Leslie Mathison Gilbert (“Ms. Gilbert” or “Defendant”) has already appeared and may be
served by delivery to her attorney of record pursuant to the TRCP.

III. JURISDICTION AND VENUE

4. The amount in controversy, exclusive of interest and costs, is within the jurisdictional limits of this
Court. Venue is proper in Travis County, Texas as the real property at issue and the events that gave rise to this
lawsuit are located within Travis County, Texas. All conditions precedent to Plaintiff’s right to recover has been
performed or has occurred.

IV. FACTUAL BACKGROUND

5. The Defendant filed suit in this Court against the Plaintiff for damages related to a Residential Lease
Agreement in Cause No. C-1-CV-13-009444, styled, “Leslie Mathison Gilbert v. John Bryan Langdon” with a
default judgment rendered on or about March 19, 2014. A copy of the Default Judgment is attached hereto as Exhibit
A.

6. In such suit, Plaintiff Mr. Langdon was found liable for bad faith in failing to provide an accounting and
refund of Ms. Gilbert’s security deposit, as well as retaining an overpayment of rents in the amount of $1,500.00.
Attorney’s fees, civil penalty and trebling of damages were also entered against Mr. Langdon.

7. In filing the suit, Ms. Gilbert tendered service of process to the Texas Secretary of State, alleging that the
Secretary of State was the agent for Mr. Langdon because Mr. Langdon has not designated or maintained a resident
agent for service of in Texas, that he engaged in business in Texas, does not maintain a regular place of business in
Texas, and that the lawsuit arises from Mr. Langdon’s business in Texas. As such, Ms. Gilbert alleges that the
Secretary of State was the proper agent for service pursuant to Tex. Civ. Prac. & Rem. Code §17.044.
8. Upon serving the Secretary of State, Ms. Gilbert, she was required to provide the Secretary of State a
document that contains a statement of the name and address to deliver Notice of Citation to Mr. Langdon, pursuant to
Tex. Civ. Prac. & Rem. Code §17.045. The return of service includes the address provided by Defendant Ms. Gilbert to
the Secretary of State. See Exhibit B.

9. Ms. Gilbert provided the Secretary of State the following address: 275 2nd Ave., Long Branch, New Jersey
07740.

10. This address was not the address of Mr. Langdon. Mr. Langdon’s correct address is 275 2nd Ave. Front,
Long Branch, New Jersey 07740.

11. Accordingly, Ms. Gilbert did not provide effective notice of citation upon Mr. Langdon.

V. BILL OF REVIEW STANDARD

12. Mr. Langdon re-allege and incorporates herein by reference, as though set forth in their entirety, the
factual statements contained in the preceding paragraphs into this Section V.

13. A default judgment may be attacked by a Bill of Review after it is too late to file either an appeal or Motion
for New Trial. Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (Tex. 2012).

14. Mr. Langdon must file a sworn pleading that states the grounds for the Bill of Review. Baker v. Goldsmith,
582 S.W.2d 404, 408 (Tex. 1979). To be entitled to a hearing, the petition must make a prima facia showing of
sufficient cause, which is not defined by TRCP 329(b).

15. Mr. Langdon claims that his due-process rights have been violated by ineffective or improper service.

16. Ordinarily for a Bill of Review, a party must prove 1) a meritorious defense; 2) justification for failure to
assert the defense; and 3) no fault or negligence on the part of Mr. Langdon for the rendering of the default judgment.
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). However, when to establish sufficient cause when there is a due-
process violation claimed, Mr. Langdon is not required to prove the first two elements set out above. Mabon Ltd., 369
S.W.3d at 812; Caldwell, 154 S.W.3d 96-97.

17. Judgment rendered without proper service is a violation of due process. Peralta v. Heights Med. Ctr., Inc.,
485 U.S. 80, 86-87 (1988). Further, the third element, no fault or negligence, is conclusively established if Mr.
Langdon proves he was not served with process. Mabon Ltd., 369 S.W.3d at 812; Ross v. National Ctr. For the Empl.
Of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006). A party that did not get served with process or who did not
receive notice cannot be at fault or negligent in allowing a default judgment to be rendered. Caldwell at 154 S.W.3d at
97; Cash v. Beaumont Dealers Auto Auction, Inc., 275 S.W.3d 915, 918-19 (Tex. App. – Beaumont 2009, no pet.).

VI. ARGUMENT

18. Mr. Langdon re-allege and incorporates herein by reference, as though set forth in their entirety, the
factual statements contained in the preceding paragraphs into this Section VI.

19. As previously stated, the Secretary of State was served with the citation for the underlying cause, to wit Ms.
Gilbert provided an incorrect address for Mr. Langdon, or the Secretary of State delivered citation to an incorrect
address. The Secretary of State delivered citation to 275 2nd Ave., Long Branch, New Jersey 07740. A copy of the
Secretary of State’s Return of Service is attached hereto as Exhibit B and incorporated herein by reference as if fully set
forth at length.
20. The Return of Service evidences that Citation was delivered to 275 2nd Ave., Long Branch, New Jersey
07740. However, Mr. Langdon’s actual address is 275 2nd Ave. Front, Long Branch, New Jersey 07740.

21. In Royal Surplus Lines v. Samaria Baptist Church, 840 S.W.2d 382, 383 (Tex. 1992), the Secretary of
State delivered citation to Defendant addressed to “1201 Bassie”, rather than “1201 Bessie”. Even though such
error was “a typographical error in the forwarding address typed by the Secretary is grounds to set aside a
default judgment based on substituted service.” In doing so, Royal Surplus cites to Uvalde Country Club v.
Martin Linen Supply Co., 690 SW2d 884, 884 (Tex. 1985), which overturned a default judgment on the hyper-
technical ‘invalid service’ grounds that the citation naming defendant’s agent omitted the “Jr.” at the end of his
name.

22. In Commission of Contracts of General Executive Committee of Petroleum Workers Union of
Republic of Mexico v. Arriba, Ltd., 882 SW2d 576, 585 (Tex. App. – Houston [1st Dist.] 1994, no pet.), is a bill
of review case where a default judgment was overturned where SOS service had been to “37 Bahia de Espiruta
Santo Esquira (at the corner of) Bahia de Ballenas”, rather than on the correct “37 Bahia de Todos Santos (at
the corner of) Bahia de Ballenas”, some three blocks away.

23. In Salzgitter v. Alexander Steel Sales, 2011 US Dist. LEXIS 52098 (S.D. Tex. May 16, 2011), long
arm service via Texas SOS found defective where address was off by one digit, holding that such does not
strictly comply with the Texas long arm statute. Also notes in dicta at n.13 that if a plaintiff could serve an out-
of-state defendant merely by supplying the Texas SOS an incorrect address, “the nonresident’s due process
rights [appear] to be in significant danger.”

24. In Marquez v. Greig, 2012 Tex. App. LEXIS 6551 *6-7 (Tex. App. – Houston [1st Dist.] August 9,
2012, no pet.), a default judgment was overturned via restricted appeal where the correct address was “2155
North Fairview”, but SOS had forwarded citation to “2155 Northfairview” and it had been returned marked
“unclaimed”. Marquez cites both Royal Surplus and Uvalde Country Club to the effect that where there is
evidence that the defendant’s actual address differed, IF ONLY SLIGHTLY, from the address to which the
Secretary of State forwarded service of process, the court held that the record does not affirmatively show strict
compliance with the rules governing service of process.

25. In Harper McLeod Solicitors v. Keaty & Keaty, 260 F.3d 389, 398-99 (5th Cir. 2001), upheld the
voiding of a default judgment because, among other things, plaintiff provided the Texas SOS an address that
contained an erroneous suite number. Harper also cites to both Royal Surplus and Arriba, infra, in holding that
Texas courts have consistently required strict compliance with the terms of the long arm statute” … and that “a
typographical error in the forwarding address …is grounds to set aside a default judgment.” Also states that
defendant having ACTUAL NOTICE without proper service is irrelevant, because without such proper service,
a court cannot gain jurisdiction over such an out-of-state defendant, whether he has notice or not.

26. Lastly, in Shackelford v. Carter Copters, 2011 Tex. App. LEXIS 7150 *12 (Tex. App. – Fort Worth
Aug 31, 2011, no pet.), a party challenging default judgment under bill of review survives summary judgment,
which was a case that involved SOS service on out-of-state resident at “333 Howard Street” rather than “333B
Howard Street”. Citing Royal Surplus, the Shackelford court muses that such an address may not be incorrect,
but it is incomplete, and allows defendant’s case to go forward, despite the fact that the citation came back
‘refused’ (and not merely undelivered).

27. In our case, the SOS delivered citation to 275 2nd Ave., Long Branch, New Jersey 07740. However, Mr.
Langdon’s actual address is 275 2nd Ave. Front, Long Branch, New Jersey 07740. The address is incorrect or at
the least incomplete. As such strict compliance with delivery of citation has not been met. Therefore, Mr.
Langdon’s due process rights have been violation, and he need not prove the first two elements required by a Bill
of Review, and the third element is conclusively proved by establishing that he was not served with process.
28. Mr. Langdon has no adequate legal remedy now available to avoid the effect of the erroneous Default
Judgment. Mr. Langdon did not have nor acquired actual knowledge of the Default Judgment until he was contacted by
opposing counsel in the underlying lawsuit until after the Court’s plenary power terminated. Accordingly, the court
should void the underlying judgment, and permit a new trial, after discovery has been conducted, to go forth.

VII. ATTORNEY’S FEES

29. Plaintiff seeks all reasonable and necessary attorneys’ fees in this case, which include, but are not
limited to the following:

(a) Investigation, and other Pre-Trial Matters;
(b) Preparation and trial of this lawsuit;
(c) Post-trial, pre-appeal legal services;
(d) An appeal to the court of appeals;
(e) Making or responding to an application for petition of review to the Supreme Court of Texas;
(f) An appeal to the Supreme Court of Texas in the event application for petition for review is granted;
and
(g) Post judgment discovery and collection in the event execution on the judgment is necessary.

30. A reasonable fee for the attorney’s services rendered and to be rendered is at least $7,500.00.
Attorney’s fees are authorized under Tex. Civ. Prac. & Rem. Code §38.000 et seq. and the Lease Agreement at
¶29 attached as Exhibit C.

VIII.

WHEREFORE, Plaintiff requests that Defendant be cited to appear and answer; that a new trial be granted;
and that on final trial hereof, the Court order that the Default Judgment be set aside and vacated; that the Court enter
judgment that the Defendant Ms. Gilbert take nothing; that Plaintiff recover from the Defendant, his damages and costs
herein expended; attorney’s fees, and have such other and further relief, at law or in equity, as to which he may be justly
entitled.

Respectfully submitted,

LAW OFFICE OF TOM MURPHY

By: _______________________________________
Tom Murphy
TSB # 24013217
9600 Great Hills Trail, Ste. 150W
Austin, Texas 78759
(512) 477-5680
(512) 493-0691 Fax
Email: tom@tommurphyslaw.com
Attorney for Langdon
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above was delivered to the following parties or their
attorneys of record pursuant to the TRCP on April 21, 2015.

Troup & Bruce, LLP Evans Kosut Davidson, PLLC
Attn: Blair Bruce Attn: John M. Davidson
211 Florence 16000 Stuebner Airline Rd., Suite 200
Tomball, Texas 77375 Spring, Texas 77379
(281) 516-1100 (281) 251-7900
(281) 516-1180 Fax (281) 251-7909 Fax
blair@troupbruce.com jdavidson@ekklaw.com

________________________________________
Tom Murphy
APPENDIX
#3
EXHIBIT B
APPENDIX
#4
NO. C-1-CV-14-003653

JOHN BRYAN LANGDON ' IN THE COUNTY COURT
Plaintiff, '
'
VS. ' AT LAW #2 OF
'
LESLIE MATHISON GILBERT, '
Defendant ' TRAVIS COUNTY, TEXAS

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR
TRADITIONAL SUMMARY JUDGMENT FOR BILL OF REVIEW
AND NO EVIDENCE MOTION SOR SUMMARY JUDGMENT

LESLIE MATHISON GILBERT, Defendant herein, files her response to Plaintiff’s

Motion for Traditional Summary Judgment for Bill of Review and No Evidence Motion for

Summary Judgment.

SUMMARY:

To bring the appellate matters and bill of review case to a close and conserve resources,

Defendant concedes that the Court should grant Plaintiff Langdon’s bill of review and set aside

the underlying judgment, but objects to any award of attorney’s fees or other relief to Plaintiff

Langdon since there is no legal support for it. Alternatively, there is a question of material fact

regarding whether the attorney’s fees sought are reasonable or necessary or properly proven;

thus, summary judgment is improper.

RESPONSE:

1. Defendant Gilbert concedes that the Court should grant Plaintiff Langdon’s
bill of review and set aside the underlying judgment.

Solely to conserve resources, Defendant Gilbert concedes that the Court should grant

Plaintiff’s bill of review (based on the omission of the word “Front” on the citation in the

underlying lawsuit) solely to set aside the underlying March 19, 2014 default judgment and

return the parties to the pre-default judgment status in the underlying lawsuit. This will conclude

the bill of review lawsuit. Thereafter, the Court should re-set the underlying lawsuit for trial at a

1
later date. See Tex. R. Civ. P. 174(b) and 245; Caldwell v. Barnes 154 S.W. 2d 93, 97 (Tex.

2004); Baker v. Goldsmith, 582 S.W. 2d 404, 408 (Tex. 1979).

2. Defendant Gilbert objects to any award of attorney’s fees to Plaintiff
Langdon since there is no legal support for it; thus the Court should deny
summary judgment.

Plaintiff Langdon cites no authority in his motion or live pleading which would permit a

Court to award attorney’s fees to an equitable bill of review plaintiff.

The Court does not have discretion to award a bill of review plaintiff attorney’s fees

under the Uniform Declaratory Judgment Act. Mungia v VIA Metro Transit, 441 S.W. 3d 542

(Tex. App.—San Antonio 2014, no pet.).

The general rule in Texas is that each litigant must pay its own attorney’s fees. MBM

Fin. Corp. v. Woodland Oper. Co., 292 S.W.3d 660, 663 (Tex. 2009). Recovery of attorney’s

fees from the adverse party is allowed only when the recovery is permitted by statute, by

contract, between the litigants, or under equity. Akin, Gump, Strauss, Hauer & Feld, LLP v.

National Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009).

3. Alternatively, there is a question of material fact regarding whether the
attorney’s fees sought are reasonable or necessary, and the Court should
deny summary judgment.

Assuming the Court determines that Plaintiff Langdon can recover attorney’s fees for

prosecuting a bill of review lawsuit, the Court should deny the motion for summary judgment as

to attorney’s fees since the affidavit of counsel for Defendant, marked and attached as Exhibit A,

regarding reasonable and necessary attorney’s fees, creates a material issue of fact. Additionally,

Plaintiff’s affidavit fails to state Plaintiff’s counsel’s hourly rate or provide any level of detailed

billing as required by the Texas Supreme Court in El Apple I, Ltd. v. Olivas, 370 S.W.3d 757,

763-765 (Tex. 2012). Further, Plaintiff Langdon’s summary judgment evidence fails to provide

any evidence that his claim for attorney’s fees was timely presented to Defendant Gilbert. Tex.

Civ. Prac. & Rem. Code 38.002.
2
THEREFORE, Defendant requests that the underlying judgment be set aside and

Plaintiff’s request for attorney’s fees be denied, and for such other and further relief to which

Defendant may be justly entitled.

Respectfully submitted,

EVANS KOSUT DAVIDSON, PLLC

/s/ John M. Davidson
By: ______________________________________
John M. Davidson
State Bar No. 05434980
16000 Stuebner Airline Rd., Suite 200
Spring, Texas 77379
281-251-7900 – Telephone
281-251-7909 – Fax
jdavidson@ekklaw.com

CERTIFICATE OF SERVICE

I certify that a true copy of the above document has this 27th day of March, 2015, been
served to counsel of record as follows:

Via eFiling and/or eMail: tom@tommurphyslaw.com
Tom Murphy
Law Office of Tom Murphy
9600 Great Hills Trail, Ste. 150W
Austin, TX 78759

/s/ John M. Davidson
By: ______________________________________
John M. Davidson

3
NO. C-1-CV-14-003653

JOHN BRYAN LANGDON § IN THE COUNTY COURT
Plaintiff, §
§
VS, § AT LAW #2 OF
§
LESLIE MATHISON GILBERT, §
Defendant § TRAVIS COUNTY, TEXAS
AFFIDAVIT OF JOHN M. DAVIDSON
STATE OF TEXAS §
COUNTY OF HARRIS §

Before me, the undersigned authority, personally appeared John M. Davidson who, upon
his oath, deposed and said:

1. “My name is John M. Davidson. I am over 21 years of age and fully competent to
execute this afﬁdavit. I am an attorney with the law ﬁrm of Evans Kosut Davidson, PLLC in
Spring, Texas, and the attorney for LESLIE MATHISON GILBERT, Defendant in the above-
captioned action. I have personal knowledge of the facts in this afﬁdavit, and those facts are true
and correct.

2. I am an attorney in State of Texas and have been a
good standing licensed -in the
practicing attorney in Houston, Texas and nearby counties for 25 years. I am generally familiar
with the attorney’s fees charged by litigation counsel in Travis County, Texas.

3. I am
of the opinion that $18,500.00 in attomey’s fees, and related appellate fee
requests, would n_ot be a reasonable fee for the services summarily described in Plaintiffs
attomey’s afﬁdavit marked as Plaintiffs Exhibit B. Further, Plaintiffs afﬁdavit fails to state
Plaintiffs counsel’s hourly rate or provide any level of detailed billing as required by the Texas
Supreme Court in El Apple 1, Ltd. V. Olivas, 370 S.W.3d 757, 763-765 (Tex. 2012).

4. It is my
opinion that these fees are n_ot reasonable or necessary attorney's fees
based upon the factors set forth in Rule 1.4 of the Texas Disciplinary Rules of Professional
Conduct, and the case law interpreting this Rule:

a. The time and labor required, the novelty and difﬁculty of the issue
involved, the skill required to provide the legal services properly, and the
experience, reputation, and expertise of the lawyer or lawyers performing
the services;

b. The likelihood that the acceptance of the particular employment will
preclude other employment by the attorney;
c. The fee customarily charged .in the community for similar legal services.

d. The amount involved and the result obtained;

e. The time limitations imposed by the clients or by the circumstances;

f. The nature and length of professional relationship with the clients;

g. The experience, reputation, and the ability of the attorney performing the
services;

h. Whether or not the fee is fixed or contingent on the results obtained — that
is the uncertainty of collection before legal services have been rendered;
and

i. Based on common knowledge of the attorney involved and this Court.

5. In my opinion, the reasonable and necessary attorney’s fees, if any, for this
Plaintiff in a simple default judgment based upon incorrect service type of case, would be
signiﬁcantly lower than the amount being requested by Plaintiff in this bill of review proceeding.
Further, it would be inequitable to award the fees requested by Plaintiff since Plaintiffs counsel
could have timely ﬁled a motion for new trial and avoided the need for any bill of review
proceeding.

Further Afﬁant sayeth not.”

By:
John M. Davidson

SUBSCRIBED AND SWORN TO before me on the 27"‘ day of March, 2015.

By: /ll/\/LUL
Notf/jlirublic, State of Texas
APPENDIX
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APPENDIX
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ACCEPTED
03-15-00305-CV
5651777
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/12/2015 10:17:57 AM
JEFFREY D. KYLE
CLERK
APPELLATE CASE NO. 03-15-00305-CV

JOHN BRYAN LANGDON
Appellant

LESLIE MATHISON GILBERT
Appellee

On Appeal from the
County Court at Law Number Two of Travis County, Texas

APPELLANT’S APPENDIX

__________________________________________________________________

Identity of Parties and Counsel

Leslie Mathison Gilbert John Bryan Langdon
Defendant at the Trial Court Level Plaintiff at the Trial Court Level

LAW OFFICE OF TOM MURPHY

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above was delivered to the
following parties or their attorneys of record pursuant to the TRCP on June 11, 2015.

Appendix #1. Copy of the Lease Agreement

Appendix #2. Copy of the Second Amended Petition for Bill of Review

Appendix #3. Copy of Exhibit B (Attorneys' Fees) of Motion for Summary
Judgment

Appendix #4. Appellee's Response to Appellant's Motion for Summary
Judgment

Appendix #5. Appellee's First Amended Petition

Appendix #6. Motion for Default Judgment

Appendix #7. Final Judgment in the Underlying Suit

Appendix #8. Order Granting Appellee’s Notice of Non-Suit without Prejudice

Appendix #9. TEX. R. CIV. P. 54

Appendix #10. TEX. R. CIV. P. 329b(d)

Appendix #11. TEX. R. CIV. P. 329b(f)

Appendix #12. 1A TexJur Actions §49 and §62

Appendix #13. 34 TexJur Equity §2

Appendix #14. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287
S.W.3d 877, 884 (Tex. App. – Dallas 209, no pet.)

Appendix #15. Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App. - Dallas
1992, no writ)

Appendix #16. Black’s Law Dictionary, 10th ed. (2014)
Appendix #17. CenterPlace Props., Ltd. v. Columbia Med. Ctr., 406 S.W.3d
674, 688 (Tex. App. – Fort Worth 2013, pet. granted, judgm’t
vacated w.r.m.)