Katy Venture, Ltd. v. Cremona Bistro Corp.
No. 14-0629
Case Summary written by Abigail Drake, Staff Member
Petitioners Katy Venture, Ltd. and Katy Management, L.L.C. brought this equitable bill of review after a no-answer default judgment was entered. The petitioners did not receive actual service of process for the underlying suit, and admitted that their address was not updated with the Secretary of State’s office. However, the petitioners contended that the respondent failed to properly certify the “last known mailing address,” and as such, the no-answer default judgment should be set aside because of the respondent’s negligence. The trial court granted summary judgment in favor of the respondent and the court of appeals confirmed.
Issue: Is there a genuine issue of material fact in that the petitioners’ failure to receive notice of the default judgment solely resulted from the respondent’s failure to properly certify the “last known mailing address” and not due to any negligence on the part of the petitioners?
When Respondent Cremona Bistro Corp. first initiated the suit to recover damages from a fire to premises leased by the petitioners, it served notice through certified mail to the address on file with the Secretary of State’s office, but it was returned as undeliverable. Respondent then hired a process server, but he was similarly unsuccessful. Finally, it attempted to use the Secretary of State as the petitioners’ agent, but the process was still undeliverable.
In accordance with Rule 239a of the Texas Rules of Civil Procedure, the respondent certified the “last known mailing address” with the clerk of the court. However, the address provided to the court was the same address to which the respondent unsuccessfully attempted to serve process. The petitioners provided evidence that indicated a meeting occurred between the two parties at the petitioners’ new address, and correspondence from the petitioners’ insurer contained the new address. The petitioners contended that this lack of adequate service deprived them of the opportunity to move for a new trial, so the no-answer default judgment should be set aside.
The Court determined that the evidence presented by the petitioners raised a genuine issue of material fact that the negligence by the petitioners in failing to update their address with the Secretary of State’s office may not have contributed to the lack of adequate notice of the pending default judgment. As such, the Court of appeals erred in upholding the trial court’s granting of the summary judgment. Accordingly, the decision of the court of appeals was reversed and the case was remanded for further proceedings in the trial court.