NO. 09-0715 - Supreme Court of Texas

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					             NO. 09-0715
                 In the Supreme Court of Texas
          ___________________________________

                               MABON LIMITED,

                                                                Petitioner,
                                          v.

                   AFRI-CARIB ENTERPRISES, INC.,

                                                                Respondent.

          ___________________________________________
                O N R EVIEW   FROM THE  F OURTEENTH C OURT OF A PPEALS
                                   H OUSTON , T EXAS
                                 N O . 14-07-00650-CV
           ___________________________________

MABON’S RESPONSE TO AFRI-CARIB’S PETITION FOR REVIEW
            __________________________________

David W. Holman                                Michael D. Hudgins
Texas Bar No. 09902500                         Texas Bar No. 00787731
THE H OLMAN LAW FIRM, P.C.                     MaLinda Edwards Watson
24 Greenway Plaza, Suite 2000                  Texas Bar No. 24047079
Houston, Texas 77046                           Courtney T. Carlson
Telephone    713.400.4840                      Texas Bar No. 24065004
Facsimile    713.400.4841                      THE H UDGINS LAW FIRM, P.C.
                                               24 Greenway Plaza, Suite 2000
                                               Houston, Texas 77046
                                               Telephone    713.623.2550
                                               Facsimile    713.623.2793

                         Attorneys for Mabon Limited
                                              TABLE OF CONTENTS

                                                                                                                            Page

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

          1.       The Court of Appeals Should Not Have Remanded The Case Based On A
                   New And Unworkable Requirement Of Diligence “In Monitoring The
                   Case Status”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

          2.       Alternatively, If The Court of Appeals’ New Diligence “In Monitoring
                   The Case Status” Requirement Is Recognized, The Court of Appeals Had
                   Discretion to Remand On That Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                    A.       The Court of Appeals has discretion to remand when a case was
                             tried on an incorrect legal theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                    B.       The Court of Appeals had discretion to remand for a fuller
                             development of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                                                       i
                                        INDEX OF AUTHORITIES

Cases                                                                                                         Page(s)

Afri-Carib Enterprises, Inc. v. Mabon Ltd.,
       287 S.W.3d 217 (Tex. App.—Houston [14th Dist.] 2009, pet. filed).. . . . . . . . . 3-5, 7

Ahmed v. Ahmed,
     261 S.W.3d 190 (Tex. App.—Houston [14th Dist.] 2008, no pet.) . . . . . . . . . . . . 2, 12

Caldwell v. Barnes,
      154 S.W.3d 93 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Cash v. Beaumont Dealers Auto Auction, Inc.,
       275 S.W.3d 915 (Tex. App.—Beaumont 2009, no pet.). . . . . . . . . . . . . . . . . . . . . . . 8

Continental Cas. Co. v. Guzman,
      2009 WL 136926 (Tex. App.—San Antonio 2009, pet. denied). . . . . . . . . . . . . . . . . 8

Davis v. Gale,
       160 Tex. 309, 330 S.W.2d 610 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fanning v. Fanning,
      847 S.W.2d 225 (Tex.1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Gold v. Gold,
       145 S.W.3d 212 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re J.C.C.,
        2008 WL 1886769 (Tex. App.—Dallas 2008, no pet.). . . . . . . . . . . . . . . . . . . . 10, 11

In re Spiller,
       2010 WL 140385 (Tex. App.—Waco 2010, orig. proceeding).. . . . . . . . . . . . . . . . . 8

Knapp v. Wilson N. Jones Memorial Hosp.,
      281 S.W.3d 163 (Tex. App.—Dallas 2009, no pet.) .. . . . . . . . . . . . . . . . . . . . . . . . 13

Lopez v. Lopez,
       757 S.W.2d 721 (Tex. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

Mabon Ltd. v. Afri-Carib Enterprises, Inc.,
     2005 WL 1117983 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). . . . . . . . . . . 4


Mabon Limited’s Response to Afri-Carib’s Petition for Review                                                          ii
                                        Table of Contents (continued)

Cases                                                                                                          Page(s)

Mabon Ltd. v. Afri-Carib Enterprises, Inc.,
     29 S.W.3d 291 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). . . . . . . . . . . . . 3

Morrow v. Shotwell,
     477 S.W.2d 538 (Tex.1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12

Peralta v. Heights Medical Center, Inc.,
       485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). . . . . . . . . . . . . . . . . . . . . . . . 7, 10

Ross v. National Center for the Employment of the Disabled,
       197 S.W.3d 795 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Scott Bader, Inc. v. Sandstone Prods., Inc.,
       248 S.W.3d 802 (Tex. App.—Houston [1st Dist.] 2008, no pet.) . . . . . . . . . . . . . . . 13

U.S. Fire Ins. Co. v. Carter,
       473 S.W.2d 2 (Tex. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Wembley Inv. Co. v. Herrera,
     11 S.W.3d 924 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Westgate, Ltd. v. State,
      843 S.W.2d 448 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                                          iii
                                                NO. 09-0715


                              In the Supreme Court of Texas
                       ___________________________________

                                            MABON LIMITED,

                                                                             Petitioner,
                                                       v.

                                AFRI-CARIB ENTERPRISES, INC.,

                                                                             Respondent.

                      ___________________________________________
                             O N R EVIEW   FROM THE  F OURTEENTH C OURT OF A PPEALS
                                                H OUSTON , T EXAS
                                              N O . 14-07-00650-CV
                       ___________________________________

         MABON’S RESPONSE TO AFRI-CARIB’S PETITION FOR REVIEW
                        __________________________________

TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

        Mabon Limited (“Mabon”) responds to the petition for review filed by Afri-Carib

Enterprises, Inc. (“Afri-Carib”) as follows:

                                STATEMENT OF JURISDICTION

        Mabon has filed its own petition for review in which it has argued that a bill of review

petitioner, who has no notice of the trial setting, is entitled to a reversal of a default judgment,

without a further showing of the court of appeals’ new requirement of diligence “in monitoring

the case status.” See Mabon’s Petition for Review, No. 09-0715. In its response to Mabon’s

petition for review, Afri-Carib agreed that the Court should “take this opportunity to explain the



Mabon Limited’s Response to Afri-Carib’s Petition for Review                                      1
requirements [of the bill of review] and provide guidance to the bench and bar.” See Response

of Afri-Carib Enterprises, Inc. to Petition for Review of Mabon, Ltd., at 2 (filed February 8,

2010).

         Although Afri-Carib’s petition for review in this case (designated by the Court as the

Second Petition for Review) arises from the same court of appeals’ judgment and could be seen

as the reverse side of the same coin, in fact, Afri-Carib’s petition for review raises no new issues

of any importance to the jurisprudence of Texas.1 Specifically, in its petition for review, Afri-

Carib maintains that the court of appeals was required to render judgment—but it is well settled

that the court of appeals was not required to render judgment but had discretion to remand the

case for a new trial. See Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) (citing cases); see also Fanning v. Fanning, 847 S.W.2d 225, 226

(Tex.1993); Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex. 1992); Morrow v. Shotwell, 477

S.W.2d 538, 541 (Tex.1972); Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 613 (1960).

         Thus, while the parties appear to agree that the Court should take jurisdiction over

Mabon’s petition for review, Mabon does not agree that the Court should take jurisdiction over

Afri-Carib’s petition for review. Afri-Carib’s petition for review should be denied.




1
  Please note that Afri-Carib has only asserted as a basis for this Court’s jurisdiction over its petition for
review the Court’s “importance” jurisdiction per Section 22.001(a)(6) of the Texas Government Code. See
Afri-Carib Petition for Review, “Statement of Jurisdiction,” at 2.

Mabon Limited’s Response to Afri-Carib’s Petition for Review                                                2
                                      STATEMENT OF FACTS

        On September 5, 1996, Afri-Carib filed a breach of contract lawsuit against Mabon, a

Nigerian corporation, in Harris County, Texas. As was later decided, that lawsuit was wholly

without merit because it was filed more than four years after the alleged breach.2

        Mabon hired an attorney, Ward Robinson II, to represent it. However, unbeknownst to

Mabon, Mr. Robinson was suspended from the practice of law from September 1, 1996 to

December 31, 1998 (RR 08/09/06, at 55). Mr. Robinson answered for Mabon and filed a special

appearance.

        On September 28, 1998, when the underlying case was called to trial, Mr. Robinson did

not appear, and the trial court entered a post-answer default judgment against Mabon and in favor

of Afri-Carib in the amount of $1,098,520.04, plus $300,000 in attorney’s fees (CR I, at 8).

Mabon never received notice of either the trial setting or the default judgment (RR 08/09/06 Ex.

1, at 41, 49–53).

        In the Spring 1999, Mabon heard from one of its vendors that Afri-Carib had instituted

garnishment proceedings (RR 08/09/06 Ex 1, at 41). This was Mabon’s first actual notice of the

default judgment. Mabon then pursued both a restricted appeal and a bill of review. In the

restricted appeal, the court of appeals affirmed the default judgment, but reduced the attorney’s

fees from $300,000 to $70,000. Mabon Ltd. v. Afri-Carib Enterprises, Inc., 29 S.W.3d 291 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied) (CR V, at 1387–1400). The trial court initially



2
  As the court of appeals acknowledged, the plaintiff did not challenge on appeal the merits of the summary
judgment on limitations. See Afri-Carib Enterprises, Inc. v. Mabon Ltd., 287 S.W.3d 217, 223 (Tex.
App.—Houston [14th Dist.] 2009, pet. filed).

Mabon Limited’s Response to Afri-Carib’s Petition for Review                                             3
denied the bill of review, but that decision was reversed on appeal and remanded for trial. Mabon

Ltd. v. Afri-Carib Enterprises, Inc., No. 01-03-01219-CV, 2005 WL 1117983 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied); (CR V, at 1410 –1413).

        On remand, Mabon pursued its bill of review based on lack of notice of the trial setting

(Supp. CR, at 1). On September 18, 2006, after an evidentiary hearing and after considering the

parties’ briefs, the trial court signed an order granting Mabon’s bill of review (CR III, at 751-

752); attached Appendix A. The parties were returned to their original status with Afri-Carib as

Plaintiff and Mabon as Defendant; and with Afri-Carib bearing the burden to prove its original

breach of contract cause of action (RR 9/08/06, at 116; CR III, at 751-752). The trial court

entered Findings of Fact and Conclusions of Law concerning the granting of Mabon’s bill of

review (CR IV, at 1100–1104); attached as Appendix B.

        On May 10, 2007, after a period of discovery on the merits, Mabon filed an Amended

Motion for Summary Judgment on limitations (CR V, at 1141–1415). The trial court granted the

motion for summary judgment and ordered that Afri-Carib take nothing from Mabon (CR V, at

1480); attached as Appendix C.

        Afri-Carib did not appeal from the merits of the summary judgment. But, Afri-Carib did

appeal the trial court’s grant of the bill of review. The Fourteenth Court of Appeals first held

that, as a matter of law, Mabon did not receive notice of the trial setting. See Afri-Carib

Enterprises, 287 S.W.3d at 220. However, the court of appeals held that Mabon had not

established its lack of negligence because it had not established its diligence “in monitoring the




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                    4
case status.” Id. at 222-23. For that reason, the court of appeals reversed and remanded the case

back to the trial court for a retrial of “diligence.” Id. at 223.

                                    SUMMARY OF ARGUMENT

        Afri-Carib’s tactic in arguing for rendition of the default judgment is clear. Afri-Carib,

as Plaintiff, obtained a default judgment of over $1 million against Mabon on a cause of action

(breach of contract) that was barred by the statute of limitations at the time it was filed. At no

point, either on appeal or in this Court, has Afri-Carib ever argued that the limitations summary

judgment that the trial court entered against it was wrong on the merits. Thus, what all of Afri-

Carib’s “finality” rhetoric is directed to is an effort to convince this Court to reverse the court of

appeals’ remand and for this Court to render the bogus default judgment in Afri-Carib’s favor

for over $1 million, plus interest. There is no legal basis to do so.

        First, this Court should grant Mabon’s petition for review and affirm the trial court’s

judgment setting aside the default judgment because Mabon had no notice of the trial setting.

As a matter of due process, if there is no notice, as here, the default judgment must be set aside,

without any further showing. Even though the court of appeals’ held that Mabon received no

notice of the trial setting, the court of appeals imposed an additional requirement—that Mabon

prove its diligence “in monitoring the case status,” whatever that means. That additional

requirement is not supported by any case and is contrary to the dictates of due process. Although

Afri-Carib pays lip service to this new diligence requirement, the cases on which Afri-Carib

relies speak only to diligence in pursuing all appellate remedies after one receives notice of the

default judgment—an issue that is not implicated in this case because it is undisputed that Mabon



Mabon Limited’s Response to Afri-Carib’s Petition for Review                                        5
pursued all available appellate remedies as soon as it learned of the default judgment. Afri-Carib

cites no case that recognizes the court of appeals’ new diligence “in monitoring the case status”

requirement.

        Alternatively, if this Court recognizes the new diligence “in monitoring case status,” it is

clear that the court of appeals was not required to render the default judgment in Afri-Carib’s

favor. In its petition for review, Afri-Carib contends that the court of appeals failed to follow the

“mandate” that it render judgment for Afri-Carib. But, it is well settled that the court of appeals

had discretion to remand for further development. As this Court has held, when a case is tried

on an incorrect legal theory, remand is proper to develop the evidence under the proper theory.

        Because the court of appeals was not required to render judgment for Afri-Carib, and

because Afri-Carib’s petition for review presents no issues of importance to the jurisprudence

of Texas, this Court should deny Afri-Carib’s petition for review.

                                               ARGUMENT

1.      The Court of Appeals Should Not Have Remanded The Case Based On A New And
        Unworkable Requirement Of Diligence “In Monitoring The Case Status”

        The court of appeals should not have remanded the case, but should have affirmed the

trial court. The trial court held that because Mabon had no notice of the trial setting, the default

judgment was a denial of due process , and that Mabon was entitled to the equitable remedy of

bill of review, without any further showing. See Amended Findings of Fact and Conclusions of

Law (CR 1100-1104). In support of that position, the trial court cited this Court’s opinions in




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                       6
Caldwell v. Barnes3 and Lopez v. Lopez,4 and the Supreme Court of the United State’s opinion

in Peralta.5

          Instead of following those holdings, and the other authorities presented in Mabon’s

petition for review, the court of appeals created a new requirement for a “no-notice” bill of

review petitioner—that is, the no-notice bill of review petitioner must show, in addition to

showing no notice, that it was diligent “in monitoring the case status.” See Afri-Carib

Enterprises, Inc. v. Mabon Ltd., 287 S.W.3d 217, 222-23 (Tex. App.—Houston [14th Dist.]

2009, pet. filed). As discussed in Mabon’s petition for review, the court of appeals’ new

diligence “in monitoring the case status” requirement is unprecedented, unworkable, and has

even been expressly rejected by this Court in Gold v. Gold, 145 S.W.3d 212, 213-15 (Tex. 2004),

see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927-928 (Tex. 1999).

          In its petition for review, Afri-Carib spends almost no time on this new diligence

requirement except to quote this Court’s opinion in Ross, where the Court held,

          While diligence is required from properly served parties or those who have
          appeared, see Gold v. Gold, 145 S.W.3d 212, 214 (Tex.2004), those not properly
          served have no duty to act, diligently or otherwise. See Caldwell, 154 S.W.3d at
          97 (“An individual who is not served with process cannot be at fault or negligent
          in allowing a default judgment to be rendered.”).

Ross v. National Center for the Employment of the Disabled, 197 S.W.3d 795, 797-98 (Tex.

2006). Of course, the “diligence” to which Ross refers is not the new requirement to be diligent



3
    Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).

4
    Lopez v. Lopez, 757 S.W.2d 721, 722-23 (Tex. 1988).

5
    Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84-86, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988).

Mabon Limited’s Response to Afri-Carib’s Petition for Review                                            7
“in monitoring the case status” but, rather, it is the traditional requirement that a bill of review

petitioner be diligent in pursuing all available appellate remedies after it has notice of the

judgment. Id. at 797 (“The court of appeals held Ross had not shown diligence in pursuing his

legal remedies.”). Ross is regularly cited by courts of appeals for the proposition that although

a bill of review petitioner must establish his diligence in pursuing all available appellate remedies

after notice of the judgment, a bill of review petitioner who is not served has no requirement to

exercise diligence in pursuing available appellate remedies. See, e.g., In re Spiller, 2010 WL

140385, at *6 (Tex. App.—Waco 2010, orig. proceeding); Continental Cas. Co. v. Guzman,

2009 WL 136926, at *2 (Tex. App.—San Antonio 2009, pet. denied); Cash v. Beaumont Dealers

Auto Auction, Inc., 275 S.W.3d 915, 919 (Tex. App.—Beaumont 2009, no pet.).

         Once again, though, all that Ross concerned was the requirement to exercise diligence in

pursuing available appellate remedies. There is no case—and Afri-Carib has cited none—that

holds that a no-notice bill of review petitioner must show, in addition to showing no notice of the

trial setting, that he or she was diligent “in monitoring the case status.” Because the court of

appeals erred in introducing this new and unworkable requirement into the bill of review process

in Texas, this Court should grant Mabon’s petition for review and affirm the judgment of the trial

court.

         Of course, if the Court does so, Afri-Carib’s petition for review should be dismissed as

moot.




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                       8
2.      Alternatively, If The Court of Appeals’ New Diligence “In Monitoring The Case
        Status” Requirement Is Recognized, The Court of Appeals Had Discretion to
        Remand On That Theory

        Needless to say, Mabon believes that the court of appeals was wrong in introducing the

new diligence “in monitoring case status” requirement for bill of review petitioners who have no

notice of the trial setting. However, if this Court agrees with the court of appeals on that issue,

then the court of appeals correctly remanded on that issue. Contrary to the position that Afri-

Carib has taken in its petition for review, it is well established that, in that circumstance, the court

of appeals had discretion to remand to the trial court. This Court is not required to render the

bogus default judgment that awarded Afri-Carib over $1 million, plus attorney’s fees.6 Afri-

Carib’s petition argues contrary to this settled law and should be denied.

        A.       The Court of Appeals has discretion to remand when a case was tried on an
                 incorrect legal theory

        In 2004, this Court held in Caldwell v. Barnes that when a bill of review petitioner proves

lack of service, due process requires that the default judgment be set aside without a further

showing. See Caldwell v. Barnes, 154 S.W.3d at 96. This is because the bill of review petitioner

is relieved of proving the first two requirements and the third requirement—lack of

negligence—is established as a matter of law. Id. at 97 (“An individual who is not served with

process cannot be at fault or negligent in allowing a default judgment to be rendered.”). This

Court has also held that due process required vacation of a default judgment, without further

6
  The default judgment in 1998 awarded $1,098,520.04, plus $300,000 in attorney’s fees, which attorney’s
fees were later reduced to $70,000 (CR I, at 8; CR V, at 1387-1400). By the time of temporary injunction
to prevent Afri-Carib from garnishing Mabon’s creditors in 2006, Afri-Carib contended that the default
judgment, with interest, was worth over $2.5 million. This is the same default judgment that was based on
a breach of contract claim that was determined on summary judgment to have no merit—a summary
judgment that was not challenged on the merits by Afri-Carib, either in the court of appeals or in this Court.

Mabon Limited’s Response to Afri-Carib’s Petition for Review                                                9
showing, where there was no notice of the trial setting. Lopez, 757 S.W.2d at 723 (post-answer

default must be set aside when the defendant had no notice of the trial setting).

        The Lopez opinion is not an anomaly. Peralta itself—the landmark United States

Supreme Court case upon which the due process rules were established—involved both failure

of proper service and failure to give notice of the default judgment. Peralta v. Heights Medical

Center, Inc., 485 U.S. 80, 81 (1988) (holding that “a judgment entered without notice or service

is constitutionality infirm.”). The Supreme Court of the United States, in reversing the Supreme

Court of Texas, held that the party was required to have both proper notice of suit and proper

notice of the judgment. Id. at 85-86. The Supreme Court held that there was no requirement to

prove a meritorious defense, which was ordinarily required for a bill of review. Instead, “[o]nly

wiping the slate clean would have restored the petitioner to the position he would have occupied

had due process of law been accorded to him in the first place. The Due Process Clause demands

no less . . . .” Id. at 90. The Court reversed and remanded the bill of review for trial.

        Last year, the Dallas Court of Appeals considered a similar challenge where a father

contended on bill of review that he had no notice of the default judgment that terminated his

parental rights. In re J.C.C., 2008 WL 1886769, at *3 (Tex. App.—Dallas 2008, no pet.). The

court of appeals properly stated the rule:

        If a bill of review plaintiff is not served with citation or receives no notice of
        trial, constitutional due process establishes his own lack of fault or negligence and
        relieves him of showing he has a meritorious defense and the judgment was
        rendered as a result of official mistake or the fraud, accident, or wrongful act of
        the opposing party.




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                    10
Id. at *3, n. 3 (emphasis added). The court affirmed the trial court’s grant of bill of review based

on lack of notice and rejected the appellant’s argument that the bill of review petitioner had not

proven the three elements for a bill of review. Id.

        Thus, as the trial court found, the case law establishes that where a party does not receive

notice of suit, of trial, or of judgment, that party is denied due process and is entitled to a bill of

review, without proving the other requirements of the bill of review. There is no artificial

distinction—as found by the court of appeals— between failure to receive notice of suit and

failure to receive notice of trial or judgment.

        However, as previously discussed, the court of appeals did not follow the rule stated in

Caldwell v. Barnes, but created a new requirement for no-notice bill of review petitioners to

prove diligence “in monitoring case status.” If that new theory is correct, it is clear that no one

at trial knew it. Mabon did not present evidence of its diligence “in monitoring case status”

because no one was aware of that requirement. It is true that Afri-Carib argued that because there

was no “written communications”7 between Mabon and its attorney for almost two years, that

Mabon was not “diligent.” But, at trial, Afri-Carib’s attorney argued that Mabon was required

to be “diligent” to discover that “his lawyer had some problems.” (RR 9/08/06, at 92). In other

words, Afri-Carib would impose a duty on litigants to check to make sure that the lawyer they

hired was properly licensed. No court has ever imposed on litigants such a silly requirement.




7
  It is interesting that Afri-Carib tries to hang its hat on “written communications” because Mabon’s
Chairman and CEO testified, without objection, that during that two year period, he talked with the attorney
numerous times on the telephone (See RR 9/08/06, at 115).

Mabon Limited’s Response to Afri-Carib’s Petition for Review                                            11
        And, the diligence requirement that applies to bill of review petitioners is “diligence in

pursuing legal remedies” after one obtains notice of the default judgment—which is not an issue

in this case.8 See Ross, 197 S.W.3d at 797-98.

        The point of this discussion is that if the case was tried on an incorrect theory of law, the

court of appeals has the discretion to remand the case for further proceedings. Ahmed v. Ahmed,

261 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“As long as there is a

probability that a case has, for any reason, not been fully developed, an appellate court has

discretion to remand for a new trial rather than render a decision.”) (citing cases); Morrow v.

Shotwell, 477 S.W.2d 538, 541-542 (Tex. 1972) (“[W]e have often remanded rather than render

judgment, after reversing a trial court judgment, when a case was tried on a wrong theory and it

appeared to us that the justice of the case demanded another trial.”).

        Because the court of appeals had the discretion to remand, Afri-Carib’s argument that the

court of appeals was required to render the default judgment for Afri-Carib is simply wrong.

        B.       The Court of Appeals had discretion to remand for a fuller development of
                 evidence

        If the court of appeals new requirement is adopted, it is apparent that evidence on the issue

of diligence “in monitoring the case status” was not fully developed. As noted, although Afri-

Carib argued that there were no written communications between Mabon and the suspended

attorney about the lawsuit for two years (there were written communications about other matters),

there was evidence that there were telephone communications about the lawsuit and even an in



8
  It is undisputed that Mabon pursued all available appellate remedies, including a restricted appeal and a
bill of review, as soon as it learned of the default judgment.

Mabon Limited’s Response to Afri-Carib’s Petition for Review                                           12
person meeting in Nigeria. As discussed, Mabon was a Nigerian corporation that had no reason

to suspect that the American attorney that it hired to represent it was not licensed. Mabon’s

Chairman testified that he lived in Nigeria and came to Houston only once during 1996-1998.

There was no reason for Mabon to believe that the lawyer that it hired to defend them in the

lawsuit was not doing the job he had been hired to do.

        Where, as here, the evidence has not been fully developed, for any reason, the court of

appeals has authority to remand the case to the trial court. See Knapp v. Wilson N. Jones

Memorial Hosp., 281 S.W.3d 163, 176 (Tex. App.—Dallas 2009, no pet.) (“Remand is

appropriate when, for any reason, a case has not been fully developed.”); Scott Bader, Inc. v.

Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

(same) (citing cases). As this Court held in 1971, in an opinion that has never been overruled:

        Having reversed because of error committed on trial, a court of civil appeals or the
        Supreme Court may, because the case has not been fully developed, or in the
        interest of justice, or for like reason, remand for a new trial rather than render the
        judgment which should have been rendered by the court below.

U.S. Fire Ins. Co. v. Carter, 473 S.W.2d 2, 3 (Tex. 1971).

                                             CONCLUSION

        Afri-Carib has brought a petition for review in which it contends solely that the court of

appeals was required to render judgment. Clearly, the court of appeals was not required to render

judgment, but had discretion to remand. Because Afri-Carib’s petition for review is without

merit and because it presents matters of no importance to the jurisprudence of Texas, Mabon asks

that Afri-Carib’s petition for review be denied.




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                     13
        However, Mabon does request that its petition for review, which raises the court of

appeals’ new diligence “in monitoring the case status” be granted.

                                                   Respectfully submitted,

                                                   THE H OLMAN LAW FIRM, P.C.


                                                     s/David W. Holman
                                                   David W. Holman
                                                   Texas Bar No. 09902500
                                                   24 Greenway Plaza, Suite 2000
                                                   Houston, Texas 77046
                                                   Telephone    713.400.4840
                                                   Facsimile    713.400.4841


                                                   THE H UDGINS LAW FIRM, P.C.

                                                   Michael D. Hudgins
                                                   Texas Bar No. 00787731
                                                   MaLinda Edwards Watson
                                                   Texas Bar No. 24047079
                                                   Courtney Carlson
                                                   Texas Bar No. 24065004
                                                   24 Greenway Plaza, Suite 2000
                                                   Houston, Texas 77046
                                                   Telephone    713.623.2550
                                                   Facsimile    713.623.2793

                                                   Attorneys for Mabon Limited




Mabon Limited’s Response to Afri-Carib’s Petition for Review                            14
                                    CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the above and foregoing document has been
sent to the following via the manner indicated on February 23, 2010:

                                       V IA C ERTIFIED M AIL—RRR

                                     Mr. James C. Plummer
                                   PLUMMER & K UYKENDALL
                               4203 Montrose Boulevard, Suite 270
                                      Houston, Texas 77006
                        Telephone 713.522.2887 Facsimile 713.522.3605
                             Attorneys for Afri-Carib Enterprises, Inc.




                                                                s/David W. Holman
                                                               David W. Holman




Mabon Limited’s Response to Afri-Carib’s Petition for Review                                   15
                                                    APPENDIX

Tab                      Document

A                Order Granting Bill of Review (September 19, 2006)

B                Amended Findings of Fact and Conclusions of Law (March 7, 2007)

C                Order Granting Amended Motion for Summary Judgment (July 5, 2007)




Mabon Limited’s Response to Afri-Carib’s Petition for Review                         16

				
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