Gary Mixon v. Greg Nelson, as Principal of Madex Capital, L.L.C. Nick DeFilippis, as Principal of Blue Star Capital Group, L.L.P. Michael Morini And Norman R. Zukis

ACCEPTED
03-15-00287-CV
6791449
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/3/2015 4:26:08 PM
JEFFREY D. KYLE
CLERK
CAUSE No. 03-15-00287-CV
__________________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS9/3/2015 4:26:08 PM
At Austin JEFFREY D. KYLE
__________________________________________________________________
Clerk

GARY MIXON,

Appellant,

v.

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

Appellees.
__________________________________________________________________

On Appeal from the 345th Judicial District Court of Travis County, Texas
The Honorable Gisela D. Triana, Presiding
__________________________________________________________________

APPELLEES’ RESPONSE BRIEF
__________________________________________________________________

Mark R. McLean, TSB No. 24062882
MCLEANLAW PC
408 W 11th St., Ste. 500
Austin, TX 78701
p: 512.222.5641│f: 512.857.1282
e: mrm@mlpcfirm.com
Attorney for Appellees

No Oral Argument Reqeusted
 IDENTITY OF PARTIES & COUNSEL

Petitioner/Appellant Gary Mixon properly identified the parties and their
counsel.

TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL i

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

STATEMENT OF THE CASE 1

RECORD & APPENDIX REFERENCES 1

STATEMENT OF ORAL ARGUMENT 1

ISSUES PRESENTED FOR REVIEW 2

STATEMENT OF FACTS 3

A. Underlying case background: Mixon essentially stole Appelleees’ $200,000
Investment. 3

B. Pertinent timeline of events. 4

C. Mixon’s deposition testimony admits he has no competent evidence 7
supporting his bill of review.

D. Mixon’s recited Statement of Facts misrepresents the record. 9

SUMMARY OF THE ARGUMENT 10

STANDARD OF REVIEW 11

LEGAL AUTHORITY & ARGUMENT 13

  i

A. Judge Triana properly granted summary judgment because Mixon admits he has 13
no corroborating proof that he was not served.

B. Judge Triana properly awarded attorney’s fees because attorney’s fees were 18
recoverable in the underlying lawsuit.

CONCLUSION & PRAYER 19

CERTIFICATE OF COMPLIANCE 22

CERTIFICATE OF SERVICE 22

TABLE OF AUTHORITIES

Texas Statutes & Rules

TEX. R. CIV. P. 166a(i) 11

TEX. CIV. PRAC. & REM. CODE § 38.002 20

TEX. REV. STAT. ART. 581-33(D)(7) 20

Texas Supreme Court Cases

Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) 13, 18

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) 12

King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) 12,17

LMB, Ltd. v. Moreno, 201 S.W.3d 686 (Tex. 2006) 11

Meece v. Moerbe, 631 S.W.2d 729 (Tex. 1982) 18-20

Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) 13

State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d 298 (Tex. 2003) 15

  ii

 Texas Courts of Appeal Cases

Bakali v. Bakali, 830 S.W.2d 251 (Tex.App.—Dallas 1992, no writ) 20

Cortland Line Co., Inc. v. Israel, 874 S.W.2d 178, 184 (Tex.App.—Houston 19
[14th Dist.] 1992, writ denied)

Dias v. Dias, Cause No. 12-12-00685, 2014 Tex.App. LEXIS 12676 12,18-19
(Tex.App.—Corpus Christi Nov. 25, 2014, rhr’g den.)

Doolin’s Harley-Davidson, Inc. v. Young, Cause No. 06-05-00101-CV, 2006 19
Tex.App. LEXIS 116 (Tex.App.—Texarkana Jan. 6, 2006, no pet.)

Dorrough v. Cantwell, Cause No. 02-05-208-CV, 2006 Tex.App. LEXIS 20
6356 (Tex.App.—Fort Worth July 20, 2006, pet. denied)

Grynberg v. M-I, L.L.C., 398 S.W.3d 864 (Tex.App.—Corpus Christi 12
2012, pet. denied)

In re K.J.B., Cause No. 09-14-00324-CV, 2015 Tex.App. LEXIS 6477 14
(Tex.App.—Beaumont June 25, 2015, no pet. hist.)

Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428 (Tex.App.—Houston [14th 12, 15
Dist. 1999, no pet.)

Langdon v. Gilbert, Cause No. 03-14-00491-CV, 2014 Tex.App. LEXIS 15-16
13880 (Tex.App.—Austin Dec. 31, 2014, no pet.)

Lowe v. Farm Credit Bank2 S.W.3d 293 (Tex.App.—San Antonio 1999, 19-20
pet. denied)

Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 696 (Tex.App.—Corpus 19
Christi 2000, pet. denied)

Perez v. Old W. Capital Co., 411 S.W.3d 66 (Tex.App.—El Paso 2013, no 14-15
pet.)

Pettigrew v. Recoveredge, L.P., Cause No. 05-97-00239-CV, 1997 Tex.App. 14
LEXIS 4326 (Tex.App.—Dallas Aug. 15, 1997, no writ)

  iii

Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106 (Tex.App.—Dallas 11,12,17
2009, pet. denied)

Rayon v. Engergy Specialties, Inc., 121 S.W.3d 7 (Tex.App.—Fort Worth 12, 15
2002, no pet.)

Rodriguez v. Holmstrom, 627 S.W.2d 198 (Tex.App.—Austin 1981, no 20
writ)

Sanders v. Sanders, Cause No. 01-11-00010-CV, 2011 Tex.App. LEXIS 14
8532 (Tex.App.—Houston [1st Dist.] Oct. 27, 2011, no pet.)

State ex rel. Mattox v. Buentello, 800 S.W.2d 320 (Tex.App.—Corpus 18-19
Christi 1990, no writ)

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

Williams v. Graffin, Cause No. 11-05-00128-CV, 2006 Tex.App. LEXIS 14
9699 (Tex.App.—Eastland Nov. 9, 2006, no pet.)

  iv

 STATEMENT OF THE CASE

Appellees, and the record, disagree with the “nature of the case” presented

by Petitioner Gary Mixon.1 Appellees sued Mixon in the underlying lawsuit based

on Mixon’s (clear) fraud, Securities Act violations, breach of contract, and breach

of fiduciary duty. Appellees did not “fail[] to properly effect service in the

underlying lawsuit” as Mixon represents. Rather, Appellees properly obtained an

Order of substitute service and properly served Mixon according to that order.

Judge Triana granted no-evidence summary judgment in the bill of review

proceeding because Mixon testified that he had no evidence or facts rebutting the

Affidavit of Service filed by Appellees’ process server in the underlying lawsuit.

Appellees agree with the remainder of Mixon’s asserted Statement of the

Case.

RECORD & APPENDIX REFERENCES

Appellees also rely on the Clerk’s Record. Citation to the documents will be

footnoted and pin-cited to “CR ##.”

STATEMENT OF ORAL ARGUMENT

Appellees agree that oral argument will not materially aid the Court’s

resolution of this appeal because Mixon testified he had no evidence to rebut the

validly filed Affidavit of Service.

1 “Mixon.”

-1-
 ISSUES PRESENTED FOR REVIEW

Issue No. 1—Legal Sufficiency of Summary Judgment: Texas law

requires a bill of review Plaintiff to present corroborating evidence—beyond his

own self-serving denial of service—to rebut the presumption that the Plaintiff was

served. Mixon’s sworn testimony admits he has no such corroborating evidence

rebutting the Affidavit of Service. Accordingly, did Judge Triana properly grant

no-evidence summary judgment on the bill of review? Yes.

Issue No. 2—Attorneys Fees: Texas law allows for the recovery of

attorney’s fees for successfully defending a bill of review proceeding when

attorney’s fees are available in the underlying lawsuit. In this case, the investors’

claims in the underlying lawsuit—including Securities Act violations and breach of

contract—allowed for the recovery of attorney’s fees. Accordingly, did Judge

Triana properly grant attorney’s fees in the bill of review proceeding? Yes.

-2-
 STATEMENT OF FACTS

A. Underlying Case Background: Mixon stole Appellees’ $200,000.00 investment.

Appellees invested $200,000.00 in Mixon’s “Nuwaris, Inc.” 2 purported

business venture based on Mixon’s gross misrepresentations of fact. 3 Nuwaris

(ostensibly) offered a Software-as-a-Service4 licensing platform for the sports, music,

and entertainment industries. 5 Mixon and his cohorts induced Appellees’

investments by representing that they had already secured contracts with

professional athletes 6 and musicians. 7 These representations were demonstrably

false.

Further, the relevant subscription agreements Appellees and Mixon signed

required that all monies funded (by Appellees) be held in escrow until six “units”

($50,000 each) were funded. If the requisite six units were not funded, then the

monies were to be returned to the investors “without interest or penalty.” 8

Appellees’ four units were the only units ever funded. Nonetheless, the monies

were not refunded and Mixon used Appellees’ monies intended for the project for

his own personal benefit.

“Nuwaris.”
2

For a discussion of the facts making the basis of the underlying lawsuit, see CR 12-25.
3
4 “SaaS.”
5 See CR 17.
6 E.g., Mixon represented that former University of Washington and Oakland Raider

legend Lincoln Kennedy had already invested in the project—and was gathering 25 other former
NFL players to participate. CR 28.
7 For example, Kelly Rowland of Destiny’s Child fame. CR 28.
8 CR 30.

-3-
 B. Pertinent Timeline of Events

On June 24, 2013, Appellees filed the underlying lawsuit. Appellees made a

number of service attempts on Mr. Mixon, to no avail.9

On September 25, 2013, Appellees filed a motion for substitute service on

Mixon. The motion relied on utilities set up by Mixon’s wife, Linda Komperda, at

the same address as the attempted service of process—116 Cave Circle, Boerne,

TX 78006. Judge Triana deferred ruling on the motion until Appellees presented

evidence that Mixon resided at the address along with Ms. Komperda.10

Accordingly, on October 19, 2013, Plaintiffs served Ms. Komperda—at the

116 Cave Circle address—with a subpoena for deposition. Ms. Komperda filed a

motion to quash the subpoena. Komperda’s motion listed the 116 Cave Circle

address.

On November 1, 2013, Judge Byrne heard Ms. Komperda’s motion to

quash and Plaintiff’s renewed motion for substitute service. At the hearing, Ms.

Komperda testified that Mixon lived with her at the 116 Cave Circle address: “[s]o

he has not been served, my husband. He does live with me. … We live where we

live.”11

9See CR 61-63.
10See CR 52-52, 3:22-4:10 (“Judge Triana’s staff attorney told us or told me that they
wanted more evidence as to the fact that Mr. Mixon resided at the new 116 Cave Circle address
with Ms. Komperda.”).
11 CR 54.

-4-
 Based on Ms. Komperda’s admission that Mixon resided at the 116 Cave

Circle address with her, Judge Byrne granted Plaintiff’s Motion for Substitute

Service:

MR. MCLEAN: Thank you, your Honor. If you look at Exhibit 2 to
our motion for substitute service, it shows that we have made a
number of service attempts on Mr. Mixon at the 116 Cave Circle
address. That issue is now pretty much moot. She just admitted on the
record that he lives with her at that address.

So based on that admission, I respectfully request the court grant
Plaintiffs’ motion for substitute service.

THE COURT: The court will grant the motion for substitute
service[.]12

Judge Byrne then entered an Order allowing substitute service by leaving a

true and correct copy of the citation and petition on the front door of the 116 Cave

Circle address.13

The following day, on November 2, 2013, Process Server Margarito

Vasquez effectuated substituted service in exactly the manner authorized by Judge

Byrne. Mr. Vasquez’ Affidavit of Service states:

I, MARGARITO VASQUEZ SCH2597 EXP 6-30-18, being duly
sworn, depose and say that on the 2nd day of November, 2013, I:

POSTED PER 106 ORDER signed by the [J]udge by securely
attaching a true and correct copy of the CITATION AND
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR
DISCLOSURE with the date and hour of service endorsed thereon

12 CR 55.
13 CR 57.

-5-
 by me, to the front door of the property of GARY MIXON
RESIDENCE at the address of: 116 Cave Circle, BOERNE, TX
78006[.]14

Despite perfected service pursuant to the Court’s Order, Mixon refused to

answer Judgment Creditors’ lawsuit. Accordingly, on January 17, 2014, Judgment

Creditors obtained a Default Judgment against him.

Mixon continued to ignore the legal process. He could have, but did not, file

a motion to reinstate or motion for new trial within 30 days of the Judgment.

Mixon could have, but did not, file a direct or limited appeal within six months of

the Judgment. Instead, although he had actual notice of the claims against him,

Mixon failed to respond to anything until Plaintiff filed a motion to compel post-

judgment discovery requests. Mixon filed a Motion to Set Aside the Judgment.15

On September 18, 2014, Judge Meachum denied Mixon’s motion to set aside and

granted Appellees’ motion to compel discovery.16 Mixon then filed his petition for

bill of review, making the basis of this appeal.

C. Mixon’s deposition testimony admits he has no competent evidence supporting his
bill of review.

Mixon presented for deposition (solely with regard to his claims in the bill of

review) on November 25, 2014. In deposition, Mixon admitted that he was aware

14 CR 59.
15 CR 64.
16 CR 76.

-6-
of the underlying lawsuit against him as early as October 19, 2013.17 Mixon admits

that service attempts were made on him at the 116 Cave Circle address prior to

October 19, 2013.18

Most importantly, Mixon admitted he does not refute the Affidavit of Service

filed by Mr. Vasquez. He testified:

Q. I’ll show you what we’ll mark as Exhibit 12. If you turn to the
second page of Exhibit 12 and I’ll tell you that this is the Affidavit of
Service that Mr. Vazquez filed with the court?

A. Okay.

Q. And he states, ‘I, Margarito Vasquez, SCH2597 EXP 6/30/16,
being duly sworn, depose and say that on the 2nd day of November
2013 at 11:53 a.m., I posted per 106 Order signed by the judge by
securely attaching a true and correct copy of the Citation and
Plaintiff’s Original Petition and Request for Disclosure with the date
and hour of service endorsed thereon by me to the front door of the
property of Gary Mixon residence at the address of 116 Cave Circle,
Boerne, Texas 78006.’ Do you see that?

A. I do.

Q. Again, you have no reason to doubt the truthfulness of Mr.
Vasquez, do you?

A. I do not question his statement. 19
17 Deposition of Gary Mixon, 16:19-21 (“Q. So you were aware on October 19, 2013 that
you and your former company had been sued, correct? A. Yes, sir.”). “Mixon Depo.” CR 92-93.
18 Mixon Depo., 20:9-13 (“Q. So you know that process servers were attempting to serve

you at the 116 Cave Circle address when you saw Exhibit 9, correct? A. When the deposition
information come for Linda is when I learned that process servers were attempting.”). CR 93.
19 Mixon Depo., 23:17-24:10. CR 94. See also Mixon Depo., 26:14-19, CR 95 (“Q. That’s

not my question. I’m going to have to object as nonresponsive. Are you testifying that Mr.
Vasquez is not being truthful when he testified that he posted a copy of the citation and petition
on your door on November 2, 2013? A. No, I’m not saying that.”); 27:5-9, CR 95 (“But you
don’t have any evidence to indicate that he [Mr. Vasquez] is lying to the court when he testified

-7-
 Mixon candidly admits he has absolutely no evidence to support his assertion

that he was not properly served:

Q. Earlier you told me that you have no reason to dispute Mr.
Vasquez’s affidavit stating that he posted a copy of the petition and
citation on your door on November 2, 2013, correct?

A. I did say that.

Q. So what proof do you have that you weren’t served?

A. I’m just telling the truth as the events unfolded through this
process.

Q. Okay. The court entered an Order of Substitute Service. You
understand that now, correct?

A. I do.

Q. And you understand that Mr. Vasquez filed an affidavit with
the court stating that he served you pursuant to that Judge Burns [sic,
Byrne’s] Order on November 2, 2013, correct?

A. Yes.

Q. Is there anything I’m missing? What other facts do you have
showing this didn’t happen?

A. I don’t have any other facts.20

that he posted a copy of the citation and petition on your door on November 2, 2013? A. No,
sir.”).
20 Mixon Depo., 31:10-32:3. CR 96.

-8-
 D. Mixon’s Recited Statement of Facts misrepresents the record.

Mixon’s Statement of Facts contains a number of misstatements of the

record. First, Mixon’s Statement of Facts asserts that “[a]t no point in time during

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

Lawsuit.”21 This assertion is false. As noted above, Mr. Vasquez posted the citation

and petition on Mixon’s front door—exactly as prescribed by Judge Byrne’s

order—on November 2, 2013. Further, because Mixon’s brief admits he did not

move out of the 116 Cave Circle address until “[l]ater that month”,22 his brief

expressly concedes that he resided at the 116 Cave Circle address at the time of the

effectuation of substituted service.

Second, Mixon’s asserted Statement of Facts states “the Certificate of Last

Known Address filed by Appellees identified the incorrect address for Mixon.”23

This statement is misleading. As outlined above, Komperda testified on November

1, 2013 that Mixon resided at the 116 Cave Circle address. That was the address

listed on the Certificate of Last Known Address. Mixon’s assertion insinuates that

somehow it was Appellees’ fault for Mixon’s failure to notify them that he moved

out of the 116 Cave Circle address after Mr. Vasquez effectuated service of process.

Third, Mixon’s asserted Statement of Facts states:

21 Brief of Appellant, p. 7.
22 Id.
23 Id.

-9-
 Mixon did not immediately receive notice of the default judgment
because all notices were sent to Mixon’s previous addresses. (CR 140-
141). Instead, Appellees deliberately waited until 30 days after the
entry of the default judgment to attempt to serve Mixon with notice of
the default judgment. (CR 121). However, Appellees once again
served Mixon at the wrong address (CR 121).24

Mixon’s assertions in this regard are disingenuous. Mixon’s failure to

arrange for mail to be forwarded to his new address (of which he failed to notify

Appellees and the Clerk) is not Appellees’ fault. Further, the District Clerk (not

Appellees) sent notice of the Judgment to both the Persimmon address listed in the

petition and the 116 Cave Circle address listed in the Certificate of Last Known

Address.25 Again, Mixon seems to argue it’s Appellees’ and the Clerk’s fault for his

failure to notify anyone of (and his apparent failure to arrange for mail to be

forwarded to) his new address.

SUMMARY OF THE ARGUMENT

1. Judge Triana properly granted Appelleees’ no-evidence motion for

summary judgment. In a bill of review proceeding, Texas law states that the

recitations asserted in an Affidavit of Service carry so much weight they cannot be

overcome by the uncorroborated testimony of the bill of review petitioner. Texas

law further states that the necessary corroborating evidence must be more than the

petitioner’s mere denial of service. In this case, Mixon’s brief admits that the only

24 Id.
25 CR 140-141.

-10-
evidence proffered was nothing more than his mere denial of service. Further,

Mixon testified in deposition that he had no evidence—let alone evidence sufficient

to overcome such a high burden—to refute the assertions made in the Affidavit of

Service.

2. Judge Triana properly awarded Appellees attorney’s fees for

successfully defending Mixon’s bill of review. Texas law is patently clear: attorney’s

fees are recoverable to the prevailing party in a bill of review proceeding if they

would in the underlying lawsuit. Appellees’ Securities Act and breach of contract

claims in the underlying lawsuit provide for the recovery of attorney’s fees at trial

and on appeal. Accordingly, Judge Triana did not abuse her discretion in awarding

fees for the successful defense of Mixon’s bill of review.

STANDARD OF REVIEW

A no-evidence motion for summary judgment is properly granted if, after

time for adequate discovery, the movant asserts there is no evidence supporting one

or more specified elements of a claim, and the non-movant produces no summary

judgment evidence raising a genuine issue of material fact on those elements.26 This

26 Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 111 (Tex.App.—Dallas 2009, pet.
denied) (citing TEX. R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006)).

-11-
Court reviews Judge Triana’s Order granting the no-evidence motion for summary

judgment under a legal sufficiency standard of review.27

[This Court should] sustain ‘no evidence’ or legal sufficiency
challenges where (1) there is a complete absence of evidence of a vital
fact (2) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact (3) the
evidence offered to prove a vital fact is no more than a scintilla or (4)
the evidence conclusively establishes the opposite of the vital fact.28

“Less than a scintilla of evidence exists when the evidence is so weak it does

no more than create a surmise or suspicion of fact.”29 “Evidence so slight making

an inference therefrom a guess is in legal effect no evidence.”30 The facts presented

in response to summary judgment must be both material—that is, they need to

affect the outcome31; and genuine—that is, a reasonable jury must be able to find

the fact in Mixon’s favor.32

With regard to the attorney’s fees issue, this Court cannot overturn Judge

Triana’s award of attorney’s fees “absent a clear abuse of discretion.”33

27 Id. at 111-12 (“Because a ‘no evidence’ summary judgment is essentially a pretrial
directed verdict, we apply the same legal sufficiency standard of review governing the latter.”)
(citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003)).
28 Id. at 112 (citing Chapman, 118 S.W.3d at 751).
29 Id. (citing Chapman, 118 S.W.3d at 751).
30 Id. (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).
31 Rayon v. Engergy Specialties, Inc., 121 S.W.3d 7, 11-12 (Tex.App.—Fort Worth 2002, no

pet.) (citing Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex.App.—Houston [14th Dist.
1999, no pet.)).
32 Id. (citing Lampasas, 988 S.W.2d at 433).
33 Dias v. Dias, Cause No. 12-12-00685, 2014 Tex.App. LEXIS 12676, at *22

(Tex.App.—Corpus Christi Nov. 25, 2014, rhr’g den.) (citing Grynberg v. M-I, L.L.C., 398 S.W.3d
864, 880 (Tex.App.—Corpus Christi 2012, pet. denied)).

-12-
 LEGAL AUTHORITY & ARGUMENT

A. Judge Triana properly granted summary judgment because Mixon admits he has no
corroborating proof that he was not served.

A bill of review Plaintiff asserting lack of service bears a heavy burden of

proving that he was not served.34 “[T]he testimony of a bill of review plaintiff

alone, without corroborating evidence, is insufficient to overcome the presumption

that the plaintiff was served.”35 “The recitations in the return of service carry so

much weight that they cannot be rebutted by the uncorroborated proof of the

moving party.”36

Mixon’s cited authority does not support his assertions. Mixon asserts that

Sung Man Min v. Avila37 supports the contention that “[a]t the summary judgment

stage, a petition’s own testimony is ‘some evidence of defective service of

process.’”38 Mixon’s assertion is a gross overstatement of the law. Rather, Sung Man

Min supports the opposite position: that corroborating evidence supporting a bill of

review can’t be the petitioner’s mere denial of service. The Court explains:

The prohibition against considering the challenger’s evidence applies
only if the evidence does not rise above the mere denial of service[.]
The test of evidence, from whatever source is whether it demonstrates
facts and circumstances that support, and thus corroborate, the
challenger’s claim.39

34 Caldwell v. Barnes, 154 S.W.3d 93, 97 (Tex. 2004).
35 Id. (citing Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)).
36 Id. at Fn. 3 (quoting Silver, 884 S.W.2d at 152).
37 991 S.W.2d 495 (Tex.App.—Houston [1st Dist.] 1999, no pet.).
38 Brief of Appellant, p. 18 (quoting Sung Man Min, 991 S.W.2d at 502).
39 Sung Man Min, 991 S.W.2d. at 503.

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 Mixon in this case offers nothing more than a mere denial of service. He

admits as much in his brief.40 In doing so, Mixon appears to misunderstand the

very concept of substituted service. Mixon’s entire argument to deny that service

was perfected is his assertion that he never received a copy of the citation and

petition.41 That’s not the issue.

Judge Byrne issued an Order that service be “perfected by posting a true and

correct copy of the citation and the attached petition on the front door of his

residence, 116 Cave Circle, Boerne, Texas 78006.”42 Judge Byrne’s Order is fully

consistent with Rule 106.43 Service was therefore perfected by Mr. Vasquez posting

a copy of the citation and petition to Mixon’s door, as confirmed in his Affidavit of

Service. Mixon’s assertion that he never received notice of it, despite being

implausible at best, is of no legal consequence. The El Paso Court in Perez v. Old W.

40 See Brief of Appellant, p. 13 (“Here, Mixon’s affidavit and deposition testimony, despite
being ‘bare assertions’ that he was never served …”).
41 Id. (“Specifically, Mixon produced evidence that he never received the citation

purportedly attached to his front door. For example, Mixon testified in his deposition that he
‘was never served.’ … Mixon maintained that the best evidence of defective service is the fact
that he never received the citation[.]”).
42 CR 57.
43 See, e.g., In re K.J.B., Cause No. 09-14-00324-CV, 2015 Tex.App. LEXIS 6477, at *15-

17 (Tex.App.—Beaumont June 25, 2015, no pet. hist.) (citing Perez v. Old W. Capital Co., 411
S.W.3d 66, 72-73 (Tex.App.—El Paso 2013, no pet.) (service by posting citation to main entry of
defendant’s residence was proper and complied with court’s order authorizing substitute service));
Sanders v. Sanders, Cause No. 01-11-00010-CV, 2011 Tex.App. LEXIS 8532, at *7 (Tex.App.—
Houston [1st Dist.] Oct. 27, 2011, no pet.) (same); Williams v. Graffin, Cause No. 11-05-00128-
CV, 2006 Tex.App. LEXIS 9699, at *4-5 (Tex.App.—Eastland Nov. 9, 2006, no pet.) (same);
Pettigrew v. Recoveredge, L.P., Cause No. 05-97-00239-CV, 1997 Tex.App. LEXIS 4326
(Tex.App.—Dallas Aug. 15, 1997, no writ) (same).

-14-
Capital Co.44 explained: “The Supreme Court of Texas has held that actual notice

[of service] is not only unnecessary, but is in fact, contrary to Rule 106(b)’s

underlying rationale[.]”45

Service was perfected the moment Mr. Vasquez posted the citation and

petition to the door of Mixon’s residence in accordance with Judge Byrne’s Order.

Mixon admits that he has no evidence controverting Mr. Vasquez’ Affidavit of

Service stating he performed that exact action. Mixon’s hollow assertion he never

received notice of the citation and petition—implausible as it is—holds no

evidentiary or legal value.

Because Mixon’s assertions that he “never received” a copy of the citation

and petition are of no legal consequence, they are not material.46 Even if they were

material, Judge Triana correctly determined by granting summary judgment that

the assertions were not genuine, because no reasonable jury could believe Mixon’s

far-fetched denial of notice.47

Mixon’s reliance on Langdon v. Gilbert,48 is likewise misplaced. In Langdon, this

Court held that “[t]he bill-of-review petitioner bears the burden of proving that he

44 411 S.W.3d 66 (Tex.App.—El Paso 2013, no pet.).
45 Perez, 411 S.W.3d at 71-72 (quoting State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d
298, 299 (Tex. 2003)).
46 That is, they do not affect the outcome. Rayon, 121 S.W.3d at 11-12.
47 Id. (citing Lampasas, 988 S.W.2d at 433).
48 Cause No. 03-14-00491-CV, 2014 Tex.App. LEXIS 13880 (Tex.App.—Austin Dec.

31, 2014, no pet.).

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was not served with process.” 49 In Langdon, the underlying Plaintiff served the

Defendant—via certified mail—at the incorrect address through the Secretary of

State’s office.50

The Court held that the Bill of Review petitioner’s affidavit—with a driver’s

license indicating the correct address—was “some” evidence of defective service,

but still “inadequate to carry his burden of proof.”51

That is not the situation presented in this case. While the Langdon Court

focused on the petitioner’s affidavit that service was effectuated at the wrong

address, Mixon admits that perfected service as reflected in Mr. Vasquez’ Affidavit

of Service was performed at the proper address. Mixon’s own affidavit confirms he

did not move from the 116 Cave Circle address until after service was perfected on

him by Mr. Vasquez leaving a copy of the citation and petition on 116 Cave Circle

front door. The Langdon petitioner’s affidavit did not involve a mere denial of

service—rather, it concerned defective substitute service. In contrast, Mixon in this

case admits that he has no evidence to rebut the Affidavit of Service stating that

49 Id. at *6.
50 Id. at *1-2 (“After several unsuccessful attempts to effect service of process by a local
sheriff’s office in New Jersey, Gilbert tendered service of process to the Texas Secretary of State
pursuant to the substituted-service provisions in section 17.044 of the Civil Practices and
Remedies Code. Gilbert notified the Secretary of State than Langdon’s address for service of
process was 275 2nd Avenue, Long Branch, NJ 07740. The Secretary of State certified that
process had been sent by certified mail to the stated address but was returned as unclaimed. On
March 19, 2014 Gilbert obtained a default judgment[.] … Langdon asserted that his correct
address is actually 275 2nd Ave. Front, Long Branch, New Jersey, and that service of process to
the address specified in the Secretary of State’s certificate was therefore improper.”) (emphasis in
original).
51 Id. at *7.

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Mr. Vasquez properly served the citation and petition exactly as directed in Judge

Byrne’s Order. Mixon admits that his testimony (and his wife’s affidavit) presents

only a mere denial of service—evidence which the Sung Man Min Court confirmed

is insufficient.

The standard of review as outlined above is instructive.52 Judge Triana’s

grant of Appellees’ no-evidence summary judgment was proper because:

1. There is a complete absence of a vital fact—evidence rising above a

mere denial of service. Mixon’s brief admits that only a mere denial of service was

proffered.53

2. The Court is barred by rules of law and evidence (as outlined in the

Sung Man Min case) from considering evidence constituting a mere denial of service,

which Mixon’s brief admits is all that is presented here.

3. The evidence offered—even if it was of legal consequence—is no

more than a mere scintilla because it is, simply, unbelievable. And,

4. The evidence offered by Appellees—that Mixon testified that has no

facts or other evidence rebutting the facts asserted in Mr. Vasquez’ Affidavit of

Service—conclusively establishes the already-strong “presumption that the plaintiff

was served” via the “recitations in the return of service [which] carry so much

52 Plunkett, 285 S.W.3d at 112 (citing Chapman, 118 S.W.3d at 751).
53 See Brief of Appellant, p. 13 (“Here, Mixon’s affidavit and deposition testimony, despite
being ‘bare assertions’ that he was never served …”).

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weight they cannot be rebutted by the uncorroborated proof of the moving

party.”54

In light of the applicable law, and in light of Mixon’s unequivocal admissions

that he has no specific facts or evidence rebutting the recitations in Mr. Vasquez’

Affidavit of Service, Judge Triana properly granted Appellees’ no-evidence motion

for summary judgment.

B. Judge Triana properly awarded attorney’s fees because attorney’s fees were
recoverable in the underlying lawsuit.

With regard to the attorney’s fees issue, Mixon attempts to use faulty (albeit

imaginative) logic to create a rule of law where none actually exists. Under Mixon’s

flawed logic, attorney’s fees are never available in a bill of review proceeding when

the petitioner challenges service of process (and thus does not have to present a

meritorious defense). This is not the law.

Rather, the clear rule in Texas is the opposite: “A successful party in a bill of

review is entitled to recover attorney’s fees if attorney’s fees are authorized in the

prosecution or defense of the underlying case.”55 “More specifically, attorney’s fees

are available if they would have been available in an appeal of the underlying

case.”56

54 Caldwell, 154 S.W.3d at 97.
55 Dias, 2014 Tex.App. LEXIS 12676 at *22 (citing Meece v. Moerbe, 631 S.W.2d 729, 730
(Tex. 1982)).
56 Id. (citing State ex rel. Mattox v. Buentello, 800 S.W.2d 320, 327 (Tex.App.—Corpus

Christi 1990, no writ)).

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 Contrary to Mixon’s assertions, nothing in Meece remotely suggests

otherwise. In fact, the Meece Court upheld an award of attorney’s fees for the bill of

review appellee because “Meece would have been entitled to attorney’s fees if

Moerbe had been able to pursue the usual course of appeal.”57 That is exactly the

situation presented here.

Mixon does not cite a single case—nor is there one—for the proposition that

the bill of review proceeding requires a substantive analysis of the underlying

lawsuit in order to recover fees. The clear rule is the opposite.58

In fact, Mixon’s argument in this regard has been expressly addressed and

rejected. The Fourth Court of Appeals in Lowe v. Farm Credit Bank59 held:

Lowe contends that the Supreme Court’s hodling [in Meece] limits
awards of attorney’s fees in bill of review proceedings to instances in
which the respondent is required to prove the claim for which the
statute authorizes attorney’s fees, i.e., the charging of the usurious
interest rate. We disagree with this contention. The focus of the
Supreme Court’s holding is whether the statute authorizing the
recovery of attorney’s fees draws a distinction between an award of
attorney’s fees at trial and an award of attorney’s fees on appeal. In
the absence of such a distinction, attorney’s fees are recoverable in a

57Meece, 631 S.W.2d at 730.
58See, e.g., Dias, supra; Doolin’s Harley-Davidson, Inc. v. Young, Cause No. 06-05-00101-CV,
2006 Tex.App. LEXIS 116, at *8 (Tex.App.—Texarkana Jan. 6, 2006, no pet.) (“Attorney’s fees
are available to the prevailing party in a bill of review action if there is a legal basis for awarding
them pursuant to the underlying cause of action”); Palomin v. Zarsky Lumber Co., 26 S.W.3d 690,
696 (Tex.App.—Corpus Christi 2000, pet. denied) (“attorney’s fees are available to the successful
party in a bill of review action if there is a legal basis for awarding them pursuant to the
underlying cause of action.”) (citing Buentello, supra; Cortland Line Co., Inc. v. Israel, 874 S.W.2d 178,
184 (Tex.App.—Houston [14th Dist.] 1992, writ denied)).
59 2 S.W.3d 293 (Tex.App.—San Antonio 1999, pet. denied).

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 bill of review proceeding to the same extent as attorney’s fees were
recoverable at trial.60

Lowe has been upheld by Texas Courts.61

In this case, Appellees asserted claims in the underlying lawsuit for violations

of the Texas Securities Act and breach of contract. Both of these claims allow for

the recovery of attorney’s fees, and there is no distinction for fees on appeal.62

Accordingly, Judge Triana properly awarded attorney’s fees. She certainly didn’t

abuse her discretion in doing so.

CONCLUSION & PRAYER

Judge Triana did not “refus[e] to acknowledge the fact issues raised by

Mixon, effectively depriv[ing] Mixon of that right.” Mixon’s brief admits he

proffered no more to Judge Triana than a mere denial of service. Mr. Vasquez’s

Affidavit of Service confirms he properly perfected service of process on Mixon by

leaving a copy of the citation and petition on Mixon’s door in accordance with

Judge Byrne’s Order. Mixon’s own testimony admits he could present no facts or

60 Lowe, 2 S.W.3d at 299 (citing Meece, 631 S.W.2d at 730; Bakali v. Bakali, 830 S.W.2d
251, 257 (Tex.App.—Dallas 1992, no writ); Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03
(Tex.App.—Austin 1981, no writ) (holding that bill of review is an appeal of the underlying
judgment for purposes of attorney’s fees)).
61 See, e.g., Dorrough v. Cantwell, Cause No. 02-05-208-CV, 2006 Tex.App. LEXIS 6356, at

*13 (Tex.App.—Fort Worth July 20, 2006, pet. denied) (“A party who successfully defends
against a bill of review is entitled to recover attorney’s fees if attorney’s fees are authorized in the
prosecution or defense of the underlying case.”) (citing Meece, 631 S.W.2d at 730; Lowe, 2 S.W.3d
at 299; Bakali, 830 S.W.2d at 257);
62 See TEX. CIV. PRAC. & REM. CODE § 38.002 (attorney’s fees recoverable for breach of

contract); TEX. REV. STAT. ART. 581-33(D)(7) (Under the Securities Act, “[o]n rescission or as a
part of damages, a buyer or seller may also recover reasonable attorney’s fees if the court finds
the recovery would be equitable under the circumstances.”).

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evidence to refute the Affidavit of Service. Accordingly, Judge Triana properly

granted Appellees’ no-evidence motion for summary judgment.

On attorney’s fees, Texas’ rule of law is crystal clear: if they are recoverable

in the underlying lawsuit, they are recoverable for successfully defending a bill of

review proceeding. Judge Triana properly awarded Appellees attorney’s fees for

successfully defending the bill of review. She certainly didn’t display a clear abuse

of discretion in doing so, necessary for overturning the award.

Accordingly, Appellees respectfully request the Court affirm Judge Triana’s

order in all respects.

Respectfully submitted this September 3, 2015.

MCLEANLAW PC
408 W 11th St., Ste. 500│Austin, TX 78701
p: 512.222.5641│f: 512.857.1282
e: mrm@mlpcfirm.com

By: ____________________________
Mark R. McLean, TSB No. 24062882
Lead Counsel for Appellees

-21-
 CERTIFICATE OF COMPLIANCE

In compliance with TEX. R. APP. P. 9.4(i)(3), the undersigned certifies that
this brief complies with the requirements of TEX. R. APP. P. 9.4(i)(2) because it
contains 5,368 words prepared in Microsoft Word 2011 for Mac edition using 14-
point Baskerville typeface (12 point font in footnotes), using one inch margins on all
sides.

____________________________
Mark R. McLean, TSB No. 24062882

CERTIFICATE OF SERVICE

Pursuant to TEX. R. APP. P. 9.5(c), the undersigned certifies that a true and
correct copy of this brief and its attachments was served on all counsel of record as
reflected below on September 3, 2015.

Via Efile
Via Email: jskaggs@jw.com & sweatherford@jw.com
Jack E. Skaggs
Scott W. Weatherford
JACKSON WALKER, L.L.P.
100 Congress, Ste. 1100
Austin, TX 78701
Attorneys for Appellant

Via Efile
Via Email: jeffm@meyersonfirm.com
Jeff M. Meyerson
THE MEYERSON LAW FIRM, P.C.
2224 Walsh Tarlton Ln., Ste. 120
Austin, TX 78746
Co-counsel for Appellees

____________________________
Mark R. McLean, TSB No. 24062882

-22-
 CAUSE No. 03-15-00287-CV
__________________________________________________________________

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
At Austin
__________________________________________________________________

GARY MIXON,

Appellant,

v.

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

Appellees.
__________________________________________________________________

On Appeal from the 345th Judicial District Court of Travis County, Texas
The Honorable Gisela D. Triana, Presiding
__________________________________________________________________

APPELLEES’ APPENDIX
__________________________________________________________________

TAB 1: Judge Byrne’s Order of Substitute Service(CR 57)

TAB 2: Margarito Vasquez’ Affidavit of Service (CR 59)

TAB 3: Excerpts from the Deposition of Gary Mixon (CR95-96)
 CAUSE D-l-GN-13-002098

GREG NELSON, as principal ofJv1ADEX § IN THE DISTRICT COURT OF
CAPITAL, LLC; NICK DEFILIPPIS, as §
principal of BLUE STAR CAPITAL GROUP §
LLC; MICHAEL MORINI; and NORMAN i\
~
R. ZUK!S, §
§
Plaintiffs, §
§
v. § TRAVIS COUNTY, TEXAS
§
NUWARIS, INC; GARY MIXON~ MICHAEL §
SID; ARLlN SEETHARA.MAN; STEPHEN §
COLLINS; and SJC FINANCIAL SERVICES, §
an unkno\'