Ex-Wife Thinks Husband's House Belongs to Her... Big Mistake

Okay, would you like to make an opening statement at this time? >> Yes, your honor. And prior to that, I did want um are we on the record now?

>> Yeah, we've been on the record. >> Oh, thank you. Okay, so um we did want to go ahead and ask the court to take judicial notice of the file in this cause and of the file in the underlying cause, cause number DF-23-09003.

>> Thank you. The court takes judicial notice of all contents of the court file as well as the contents of the court file in the underlying divorce case. >> And your honor, I did see on the witness list um that respondent may have had an additional witness.

I'm not sure if if an additional witness is here. I wanted to invoke the rule if there is an additional witness here. >> No one else is here.

We won't be calling anyone. >> Thank you. Um so, your honor, this is a very straightforward procedural case.

Um the law has clear requirements for service of process. The law says that when those requirements aren't strictly followed, the court doesn't acquire personal jurisdiction over the defendant. In this case, Mr Rodriguez didn't receive proper service of process or even actual service of process.

So, the court never acquired jurisdiction to enter a default judgment. Mr Rodriguez didn't um ever receive notice, proper notice of the default judgment from the court. And Mr Rodriguez didn't learn the case had been filed against him until the limitations period for post-judgment motions and appeal had passed.

As a result, he didn't appear in the case and his separate property was improperly awarded to his former wife, Sylvia Rodriguez. Uh the lack of jurisdiction and improper award of separate property in the case makes the divorce decree, which was entered as a default judgment, void. So, your honor, we are here today asking the court to set aside the divorce decree and send in divorce case back for proper adjudication.

Um I'll talk more at closing about about the evidence showing the different due process violations, but for now I would like to call Jaime Rodriguez to the stand. >> Okay. Attorney Smith, would you like to make an opening statement?

>> Excuse me. Yes, Your Honor, just briefly. >> Go ahead.

>> Similar to Attorney Salufa, I'll I'll hold most of my argument for the end, but um we agree that this was a straightforward case, but one of alternative service when personal service could not be affected. Um and I believe that the evidence, the testimony is going to show that service was effective and not only that, but that there was negligence on the part of Mr Rodriguez uh in the process of this case and that uh he failed to take action and is now trying to take action in the only way that is available to him because of his failure to do that the first time around. Um and we we are going to ask the court to keep the divorce decree in place and to deny the bill of review.

>> Thank you, counsel. Attorney [clears throat] Salufa, you may call your first witness. >> Yes.

Uh Jaime Rodriguez? You can take the stand. >> Sí.

>> Okay. Mr Rodriguez, please can you state your name for the record? >> Jaime Rodriguez.

Jaime Rodriguez. >> And you were married to Silvia Rodriguez? >> Sí.

>> Yes. And Your Honor, if I could have permission to share my screen. >> Yes.

>> Okay. Uh Mr Rodriguez, I am showing you and hopefully you can see it on your screen um what has been pre-admitted as petitioner's exhibit [clears throat] one, The original petition for divorce in this divorce case. Were you ever served with this document?

>> No. >> No. >> Did you ever receive this document from the court?

>> No. >> No. >> Did you ever see it taped to your door?

>> No. >> No. >> Did you ever receive any notice from the court that a judgment had been entered against you for divorce?

>> No. >> No. >> Did you ever personally receive anything from the court about this case?

>> No. >> No. >> Uh Mr Rodriguez, um did you ever personally receive any document from Sylvia Rodriguez's attorney?

That would be McKenneth Smith or Genesis. >> No. >> No.

>> As of October 17th, 2024, were you aware that a divorce case had been filed against you? >> From the 24th, yes, she told me. >> As of October 17th of the year 2024, were you aware that a divorce case had been filed against you?

>> Okay, and at that time Sylvia was in Chicago. >> No, because during that date Sylvia was in Chicago. >> and unresponsive after no.

>> Is that >> Okay, so you weren't aware that a divorce case had been filed against you as of October 17th of 2024. >> Objection, asked and answered. >> Sustain.

>> Did you purchase the property at 1815 Knneth Road in Carrollton? >> I'm object as to relevance, Your Honor. >> Okay, what is the relevance counsel?

>> Your Honor, it goes to the meritorious defense underlying the case. This is separate property that was awarded improperly to Ms. Rodriguez in the underlying case.

And so we want to be able to show that that not only were there due process violations, but there was also an extremely meritorious defense grounded in the Constitution because this was a separate property. >> Overruled. >> Mr Rodriguez, did you purchase the property at 1815 Knneth Road in Carrollton, Texas?

>> See. >> Yes. >> Did you purchase the property before your marriage to Silvia Rodriguez?

>> See. >> Yes. >> Pass the witness.

>> Okay, Attorney Smith. Mr Rodriguez, were you living at the residence at 1815 Knneth Road in the year 2023? >> See.

>> Yes. >> Were you living there from August through December of that year? >> Objection.

>> See. >> Relevance. >> Overruled.

>> And who else was living at the residence with you at the time? >> My children, Martin and Johanna, and Silvia, but in June she went to Chicago and she did not come back until November. >> Your Honor, may I share my screen?

>> Yes. >> Okay. Okay.

Um I'm showing what's been marked as Respondent's Exhibit R2, which is the motion for alternative service with the process server's affidavit attached. And Mr Red Ritter, what kind of car do you drive? Or sorry, I'll withdraw my question.

What kind of car were you driving in August of 2023? >> A Toyota Sequoia. >> And do you recognize license plate BP6F040 that's listed in this affidavit?

>> No. >> No. >> What is the license plate on the Toyota Sequoia?

>> If you allow me to check my phone, I have the license plate here. >> If Your Honor would permit. >> Um sure.

>> Thank you. Are you aware of a vehicle with the license plate BP6F040 being registered to you? >> See, but can you co-sign here?

>> Yes, because I was a co-signer. >> So, you do recognize that license plate number? >> What do you mean by the black car over there?

>> Could you repeat the license plate, please? >> Yes, B P 6 F 0 4 0. >> Hey, is there no record of that black car over there?

I bought a black car for Martin and a black car for Joana. I was a co-signer. >> I mean, I don't remember that license plate because I did purchase a car for Martin and a car for Joana.

I was a co-signer. >> So, are you saying you did not just testify moments ago that you did recognize being a co-signer on a vehicle with that plate number? >> No record of that black car >> Okay, I'll move on.

>> I don't remember the license plate. >> It appears that it was a 2015 >> Objection, non-responsive. >> Sustained.

Sir, wait for the next question. >> Um I'm going to show what has been marked as Respondent's Exhibit 7, which is the declaration of Martin Rodriguez. Uh Mr Rodriguez, do you know Martin Rodriguez?

>> See. >> And who is he to you? >> He's my son.

>> He is my son. >> And was he living with you in August of 2023 through December of 2023? >> See.

>> Yes. And are you aware that Martin has made a statement under oath that he saw the divorce papers be delivered to your shared residence at Kennett Road on December 8th of 2023? >> It's a lie, >> That is a lie.

>> And did you see any documents, excuse me? Did you see any documents posted on your door on December 8th, 2023? >> No.

>> No. >> Were you living at the house on December 8th of 2023? >> See.

>> Yes. Did you enter or exit the house on that day? >> See for the summer now for the house.

>> It If it was in between the week, I went to work. >> And would you have entered and exited the house on December 9th of 2023? >> See.

>> Yes. >> But you're saying today that you believe that what Martin has stated in his affidavit is untrue. >> Objection, asked and answered.

>> Was the objection asked and answered? >> Yes, Your Honor. >> I'm not seeing where she asked that question like that.

Overruled. >> Are you saying that you believe Martin has lied in his affidavit? >> See.

>> Yes. Did you ask for Martin to be present at today's hearing? >> No.

>> No. >> And why not? >> Objection, relevance.

>> Um Overruled. I'll allow it. >> What is the question, please?

>> Could you repeat the question, please? >> Why did you not ask Martin to be present for today's hearing? >> Objection, attorney-client privilege.

>> One one second, sir. You Do you represent Martin, too, counsel? >> Your Honor.

>> Do you represent Well, because your objection was attorney-client privilege. >> Yes, Your Honor, because opposing counsel is asking my client questions about why we didn't compel Martin today. I'm I think that that is getting into an attorney's purview.

I don't know how my client would even even know that, and I think that there's a possibility it could go into attorney-client communications. You already objected to this entire exhibit being admitted because we don't have an opportunity to cross-examine here. >> Okay.

Um >> [snorts] >> So, the question was why did you not ask Martin to be present for today's hearing? Overruled. Sir, why didn't you ask Martin to be present for today's hearing?

>> I did not know that he was aware about this case. >> Okay. >> Were you aware before today that Martin had made a statement that was admitted into court?

>> Yes. >> And you were present for our hearing last week when this statement was admitted into court, correct? >> Yes.

>> Yes. So, why would you believe Martin did not know about the hearing? Or, excuse me, the case is what you said.

>> I I found out that Martin was intervening last week. >> Okay. Are you aware that Martin's statement also says that you that Excuse me, let me quote him.

That in the months following service of the divorce papers, Jaime implied that he knew about the divorce. Are you aware that his statement says that? >> No.

>> No. >> Are you able to articulate any way that you would have implied to your son that you were aware of the divorce in the months following December 2023? >> No lo sé.

>> I don't know. >> Were you living at the Knapp residence in the year 2024? >> Sí.

>> Yes. >> Were you specifically living there in the months of June and July of 2024? >> Sí.

>> Yes. >> Um And are you aware that Martin has stated that you were staying alone at the residence in June and July of 2024 while the rest of the family was visiting Chicago? >> Sí, ellos fueron por Mis hijos fueron con por tres cuatro días.

La que se quedó fue Silvia. >> Yes, they went for >> after yes? >> The same.

>> And is it true that your family was visiting Chicago during the months of June and or July of 2024 without you? >> No, ellos fueron en julio. >> They went in July.

>> Okay. And are you aware Well, I'll I'm going to move to show what's been marked as respondent's exhibit R6, which is a letter from our office with translation and an attached final decree of divorce. Are you aware that our office mailed an envelope that included a letter and the divorce decree to you in July or of 2024?

>> No. >> No. >> Were you living at 1815 Canip Road in July of 2024?

>> See. >> Yes. >> Were you receiving mail at that residence at the time?

>> Objection, your honor. This line of questioning assumes facts not in evidence. There's no evidence that this was ever mailed.

>> Um, sustain. Rephrase. >> Were you receiving mail generally at 1815 Canip Road in July of 2024?

>> See. >> Yes. >> And do you recall receiving an envelope from our office including a letter and a divorce decree?

>> No. >> No. >> Mr Rodriguez, why didn't you respond to the original lawsuit?

>> Porque no lo sabía. >> Because I was unaware of it. >> Did you and Miss Martinez discuss the prospect of getting divorced in 2023?

>> Objection, hearsay. Treat Miss Martinez >> No. >> the party to the case.

>> Oh, overrule. >> Overrule. >> No.

>> Did you discuss potentially getting divorced when Miss Martinez moved out of the marital residence? >> Objection, relevance. >> Um, what's the relevance, counsel?

>> Just if Mr Rodriguez had any reason to believe that this was imminent, that a divorce would be filed, not necessarily that it was. >> Sustained. >> I'll pass the witness.

>> Okay. Counsel, any redirect? >> Yes, Your Honor.

>> Go ahead. >> Uh Mr Rodriguez, I am going to show you what has been pre-marked as plaintiff's or petitioner's exhibit E11. Are you able to see that this is a printout from USPS's website?

>> See? >> Yes. And you see that this tracking number, or I'll represent to you that this tracking number is the same tracking number that was on that paper that Ms.

Smith just showed to you. Right here, you see the tracking number? >> I don't remember.

I can't remember. >> I don't remember. I didn't I didn't really notice.

>> Okay, would you be surprised to know that USPS's documents show that that letter that Ms. McKenna said was sent to you never even arrived? >> I'm going to object as to leading.

>> Um overruled. >> Repeat the question, please. >> I'm going to also object as to relevance regarding surprise.

>> Surprise. >> Why is it relevant he was surprised or not? >> Well, I didn't even get the rest of her question.

Um What what I have is would you Or maybe that was the end of your question, counsel. Was your entire question would you be surprised to know that USPS is documents show that the letter sent to you never arrived? Was that your complete >> That's it.

You're right. >> All right. And counsel, you object into relevance.

>> Yes. >> Okay. Um counsel, what would be the relevance?

>> Um I think it's very relevant this document uh to show that this whole line of questioning has been irrelevant up until this point because this never arrived. >> But the question is not about whether it arrived, and I would also argue that this document doesn't conclusively establish if the letter arrived or didn't. >> Okay.

>> Sustained. >> We can withdraw. Yeah, that's fine.

Um You mentioned, Mr Rodriguez, that uh multiple vehicles have been registered in your name. Is that correct? >> See.

>> Yes. Some of those vehicles uh you are not the primary driver of. Is that correct?

>> Objection, it's leading. >> Are you the primary driver of every one of those vehicles? >> No.

>> No. Um >> Pass the witness. >> Okay, anything further from for Mr Rodriguez?

>> Yes, your honor, just a few questions. >> Go ahead. >> So, Mr Rodriguez, is your testimony that you were continuously living at the Kenner residence around the time that we are discussing in this case?

Is that correct? >> Objection, that is not a clear question. >> Okay, I'll withdraw.

When did you stop living at the Kenner residence? >> When Julio del 2020 25. >> It was in July of 2025.

So, it's your testimony that until July of 2025, you were continuously residing at 1815 Kenner Road. >> See. >> Yes.

>> And again, >> this misstates the testimony, your honor, but I I did have a it cut out for just a second there. >> Okay. Repeat your objection.

>> I I I I thought that I I think I would need to hear the question again, but I thought that Ms. Smith's question misstated the testimony. >> I'll withdraw and ask again.

>> Okay, go ahead. >> Were you continuously living at the Kenner Road residence up until July of 2025? >> Um objection, your honor.

From what date to what date? >> Um so >> [snorts] >> vague as to the beginning time? >> Yes, your honor.

>> Sure. Okay, go ahead. >> Were you continuously living at the Kenner Road residence from January 1st of 2023 until approximately July of 2025?

>> See. >> Yes. It is your testimony that you were living at the house on the date when the paperwork for the divorce was allegedly posted on your door, correct?

>> See? >> Yes. And it is your testimony that you were living at the house on the date that you were allegedly mailed a letter notifying you of the judge.

>> Objection, asked and answered. I don't know what more we can get through this line of questioning. >> Sustain.

>> But conveniently it's your testimony that you never saw the documents posted on the front door of that residence in December of 2023, correct? >> Objection, argumentative. Objection, asked and answered.

>> Sustain as to asked and answered. >> I'll pass the witness. >> Okay.

Um counsel, you may call your next witness. >> Um Your honor, at this time uh um I I think I need to call uh Miss Smith. >> The attorney, Miss Smith?

>> Yes, your honor. >> Okay. Um why are we calling Miss Smith?

>> She's the only person she's making a um We've spent a lot of time talking about a letter that was allegedly sent out to my client. Which I'm not even sure that it's relevant because actual I mean it's not it's not up to her to send it out, but she's made a a a lot of questions about this letter that was She cut out. >> Oh, you cut out.

>> was the thing that showed never got there. I think >> Hold on, counsel. You're cutting out.

Hold on, 1 second. Okay? Okay.

Now speak again. You Let me tell you where you stopped. Um Let me read back what you said.

She's the only person making a lot of time talking about a letter that was allegedly sent out to my client. I'm not even sure that that is relevant, but it's not up to her to send it out, but she's made a lot of question about the letter that and then it cut out. >> Yes, about this letter that was allegedly sent out and she is the only person with personal knowledge about that letter.

I'm curious about whether, you know, she ever received confirmation that the letter was received. If she ever checked USPS records to see whether it got there. If the letter was ever returned to her.

I mean, I I just think she's opened the door to all of that. >> Maybe. However, I don't believe that it's anything that's relevant to what I have to do.

I mean, as a trier of fact, I would give it the appropriate weight anyway. Um but I don't believe that particular letter is relevant to this bill of review. I think so far the other testimony has been very helpful for what I need in order to make a decision.

>> Okay, Your Honor. Um Uh I'm just checking my notes here. Um Your Honor, briefly, I would like to call uh Sylvia Rodriguez.

>> Okay. You may proceed. >> Ms.

Rodriguez, please can you uh state your name for the record? >> Rodriguez Lord. >> Um Sylvia Ro- Sylvia Martinez.

>> Okay. >> And I've been telling you what's asking Mr. Rodriguez.

>> There you go. Thank you very much. >> Counsel, you may ask your next question.

>> Thank you, I couldn't understand where we were. Okay. Um Miss Rodriguez, um you responded to some discovery in this case.

Is that right? >> Yes. >> And you've been here to hear us talk about a certain license plate number.

Is that right? >> Your Honor, I'm going to object to showing this exhibit as it hasn't been admitted into evidence. Um >> Your Honor, I'm not I'm not asking to admit it into evidence.

I'm just I'm just showing her to refresh her recollection about this. >> being shown to everyone, so Yeah, um now you can ask her a question specifically about some testimony that she gave. >> Okay.

>> The document itself, you can't present it to her. >> Okay. Um Miss Rodriguez, uh you owned a Volkswagen.

Is that right? >> I object as to relevance. >> Counsel, what's the relevance?

>> That um Miss Smith brought this up in her cross of my client. she brought up the license plate BP6F040 that her client has already said in her answers to interrogatories was her own Volkswagen. And I'm wanting to show that through Ms.

Rodriguez at this point. I'm only going here because Ms. Smith went here.

I think the testimony I think that the questioning the line of questioning was very misleading. >> Oh oh Okay. Um Are you Are you saying the F license plate or the B license plate?

>> B. The The same license plate that she that that she asked my client about. License plate B P 6 F 0 4 0.

>> Okay. Um I'm going to stop >> irrelevant. >> And and Kells, I guess I'm asking what the relevancy is and it it needs to be something more than because attorney Smith brought it up.

>> Of course. And I'm I'm just saying that is Of course. I'm I'm I'm bringing it up because um respondent has made an issue of it here of being registered to my client and it was mentioned in the process server's affidavit.

And we know through discovery that it was that Sylvia Rodriguez is the primary driver of that. And so that is why it's relevant because it this license plate was mentioned in the process server's, you know, affidavit and so I'm wanting to clarify who the primary driver of that car was. >> Well, that wasn't even her question though about who was the primary driver.

I'm reading back on the transcript. The question was related to it being registered to him, not necessarily who the primary driver was. So if you want to ask her about who's it who the car is registered to, I think that would be more relevant according to the testimony, not necessarily that she was the primary driver.

But again, I don't know what how that helps your client's petition for the bill of review. >> Your honor, just because it's an the fact that it's registered to my client doesn't doesn't show a sufficiency of the of the affidavit that was supporting the motion for alternative service. The fact that it was registered to my client is not really relevant to that when someone else is the person driving the car.

So, it really goes it's it's a it goes to the sufficiency of the affidavit that was underlying the motion for alternative service. >> Did you file an objection to the affidavit itself? >> Being entered into evidence?

>> No, did you file an objection for the court to read about the sufficiency of the affidavit? >> Yes, your honor. In our petition, one of one of the due process violations here was that the affidavit did not meet the requirements of rule 106 106.

It wasn't an adequate affidavit to support a motion for alternative service. >> Attorney Smith, response? >> I don't know why Ms.

Lufo needs my client's testimony to establish what she has already established with her client regarding the registration of the car. So, I would argue that the question is still there's still a relevance issue. I don't know how it goes to prove her case.

>> So, this thing Um Then, I'll pass the witness. >> Okay. >> No questions for this witness, Your Honor.

>> All right. Attorney Salufo, you may call your next witness. >> Okay.

Um I think with that, we rest. >> Okay. Attorney Smith >> I have no witnesses, Your Honor.

>> All right. Close. >> Uh yes, Your Honor.

And I will reserve a little time for rebuttal. Um >> Are you Would you like to do rebuttal now? >> Uh no, sorry, Your Honor.

Just I I may want to be I may want to respond to um opposing counsel's closing. >> Oh, her closing. Okay, I got you.

Go ahead. >> Okay. Um so, your your Honor, as Your Honor knows, the law is deeply skeptical of default judgments.

One Texas court even said the law abhors default judgments. Um why? Because when a defendant doesn't show up in a case, there's the possibility that he didn't get proper notice or that he didn't get the opportunity to present a defense.

And in that case, basic principles of natural justice have been violated. And that's exactly what happened here. The record and testimony show clearly that Mr Rodriguez's due process rights were violated multiple times.

He did not get proper notice of the lawsuit or of the default judgment entered against him. He didn't get proper or actual service of process. Service of process is, as the Texas Supreme Court has made very clear, a jurisdictional issue.

And without strict compliance with the rules on service of process, the court um doesn't acquire personal jurisdiction over the defendant. Uh the Texas Supreme Court said that actual notice to a defendant, this is a quote, uh from Wilson v. Dunn.

Actual notice to a defendant without proper service is not sufficient to convey upon the court jurisdiction to render default judgment against him. >> What was that, counsel? What was that you you What was that cited What was the site before that?

>> This site >> Yes, that that quote is from Wilson v. Dunn, D U N N. It's a Texas Supreme Court case.

Um in in Mr Rodriguez's case, multiple defects in service of process rendered service invalid and of no effect. The trial court never obtained personal jurisdiction over Mr Rodriguez. Um Sylvia Rodriguez's motion for service or for alternative service is um exhibit P2.

Uh it was defective. It didn't provide any address for alternative service. The process server's affidavit, which we've just been discussing, it's also um at exhibit P2.

Um it wasn't adequate under rule 106B. It didn't state any where Mr Rodriguez could probably be found. Um and it contained facts showing that multiple people and multiple cars were associated with the property with opportunity for people other than Mr Rodriguez to have access to service documents and for service to go awry.

Um the the court ordered substitute service despite the defects in the motion and the insufficiency of the affidavit. And importantly, in the court's order the court did not list an address where Mr Rodriguez was to be served. When a trial court orders substituted service, the only authority for the substituted service is the order itself.

So, the process server has to affect service strictly according to the order. But in this case, the process server didn't affect service according to the order. Because he couldn't.

The order gave no address. The process server supplied his own address. Um he put in his return that he posted the petition to 1815 Connect Road.

Um he spelled that k e n n e i p p two n's. It's an address that of course doesn't correspond to the court's order because there was not an address in the court's order. It doesn't correspond to an address on the record.

Um and service of process is so vitally important to ensure due process that Texas courts have consistently found that when there's even minor inconsistencies between service documents and the trial court's order for substituted service, like little differences in street spellings, those inconsistencies are usually fatal. Um so the attempted substitute service in this case failed to strictly comply with the rules. There was an insufficient motion, an insufficient affidavit, there was a court order that didn't provide an address for him to be served at, so then the process server couldn't strictly comply with the court order, and then there was this difference in spellings.

Um as a result, substitute service in this case was invalid. It was of no effect. Um the trial court never acquired personal jurisdiction over Mr Rodriguez.

Um, there's been some affi- some affidavit and affidavit offered with observations that the divorce papers were posted at the property, but there's no testimony that Mr Rodriguez saw or picked up the divorce papers. Um, that testimony seems to be suggesting that Mr Rodriguez actually received service. Mr Rodriguez testified that he never actually received service of process, but even if he had received actual service, case law is clear that actual service does not confer personal jurisdiction on the court when there is when there are defects in the process and failure to strictly comply with the rules.

Mr Rodriguez also uh didn't receive proper notice of the default judgment. Rule 239A gives requirements that the clerk has to strictly follow to give a defaulting party notice of the default judgment. Um, and the clerk needs to do that by electronic filing and by mail.

But here the clerk didn't follow those 239A requirements. >> I'm going to object to that as facts not in evidence cuz I don't think it's been raised in any of the testimony or in the exhibits what the clerk did or did not do. >> It's an exhibit P7, Your Honor.

That is the cover letter. It's also in the docket sheet. That is in at P8.

Both have been admitted into evidence. >> Yes, in evidence overall. >> Um, and the cover letter and the docket sheet show that she only gave notice of default judgment by e-service and only to one email address.

And that email address was the email address of counsel for Sylvia Rodriguez. Those documents show that the clerk did not send a copy to Mr Rodriguez by e-service or email or mail. Um there's been some talk about this letter that that was um allegedly sent to Mr Rodriguez by Genesis.

You know, the standard is not for for uh default judgment to be sent by opposing counsel. It's The question is whether the the court and the clerk followed the rules to send it. But even so, there's there is a USPS tracking number at at plaintiff's exhibit 11, or sorry, petitioner's exhibit 11, showing that the letter with that tracking number never got to Mr Rodriguez, and Mr Rodriguez has testified that he also never saw it or received it.

Um default judgment was entered July 19th of 2024 under the rules. Um there's an opportunity for post-judgment relief, but that opportunity expires 90 days after the default judgment. And um that 90 days was October 17th, 2024.

Um Mr Rodriguez testified that as of October 17th, 2024, he wasn't even aware that the lawsuit had been filed against him. Much less that default judgment had been entered against him. Uh so, this bill of review is the only remedy available to him.

Mr Rodriguez is um I know I heard during opening that Mr Rodriguez was somehow negligent. If the case law is clear that when a um defendant does not receive service of process, and when service of process and when there are due process violations related to service of process and notice, the um the defendant it's it's it is automatically taken that the defendant was not at fault and was not negligent. He doesn't have to prove the lack of fault or the lack of negligence.

His failure to to appear in the case and to seek post-judgment relief didn't result from from anything that he did. It resulted from the due process violations and the fact that he didn't know about the case. Um so, those due process violations, Your Honor, do require the bill of review to be granted.

Mr Rodriguez doesn't have to show that he had a meritorious defense, but in this case, he did have a very meritorious defense grounded in the Texas Constitution, and he didn't get to make that defense because of those due process violations. He had separate property bought before the marriage. There's a deed in the uh at at plaintiff or petitioner's exhibit nine um that shows that he purchased that property January 11th, 2002, and Sylvia Rodriguez admitted in her petition, which is petitioner's exhibit one, and her proof of that affidavit, petitioner's exhibit five, that she and Mr Rodriguez married on a date that was after the purchase of that house.

The nature of the property, as Your Honor knows, is fixed by the Texas Constitution, and trial courts don't have the discretion to divest a spouse of his separate property or transfer it to the other spouse. So, Mr Rodriguez's separate property shouldn't be awarded to Mr. Rodriguez.

So, Your Honor, the lack of jurisdiction and improper award of separate property in this case makes the divorce decree void. The due process violations in the case prevented Mr Rodriguez from making a meritorious defense through no fault of his own. And for these reasons, we're asking the court to grant petitioner's bill of review to set aside the divorce decree and to send the divorce case back for proper adjudication.

>> Thank you, counsel. Excuse me, Attorney Smith. >> Yes, Your Honor.

Um in this divorce case, my client believed and had no reason not to believe the address that Mr Rodriguez was living at was 1815 Connect Road. It's been well established through the testimony today that that has been his residence. Petitioner's own exhibits um demonstrate that he has owned the residence for over 20 years.

So, that is why service was attempted there um because that was his residence. This was a run-of-the-mill alternative service case in that service couldn't be affected on him personally, so uh we submitted those documents for alternative service to be ordered. It was ordered by the court um and we proceeded that way.

I don't believe anyone here is contesting that petitioner was in fact a resident of the Kennett Road address at the time that service was affected um and following that. They have not presented any other documentary evidence to show any reason to believe he was not residing at the house at at any moment um during or after this case. Further, um our exhibit respondent's exhibit R7 is a witness statement from the party's son who um it's also, you know, been been explained that he lived with petitioner at the time, confirms um that he was a resident there at the time service was affected and at the time other documents were mailed to him.

Um and moreover that the witness himself, Martin Rodriguez, who is a resident of the home, did see the service documents posted on the door on the day that the officers returned says. Um so, we believe that service was affected upon Mr Rodriguez by alternative service on December 8th of 2023 and that he failed to take action in this lawsuit and later received a letter from our office in July of 2024 regarding the judgment and failed to take action there as well. Petitioner alleges that the clerk did not hold up their end of the legal bargain to send out the order, but they have not brought the clerk here to testify about the procedures that she did um that he or she did.

They are using absence of information in the record to um conclusively establish that something didn't happen. They've not brought the clerk here to testify. They have not brought Martin Rodriguez here in order to cross him regarding the credibility of his affidavit.

I don't believe that they've held up their end of proving um of proving their case. It wasn't until my client or it wasn't until Mr Rodriguez was was made to move out of his residence that any action was taken. Um and that was months later that this bill of review was filed.

And so we believe that um his failure to participate in the lawsuit the first time around can't be remedied by a second bite at the apple. It is well established that our legal system does not afford litigants that luxury. And I believe that this case is no exception.

Um and so we would ask the court to deny the bill of review and maintain the underlying divorce decree. >> Thank you, counsel. Um uh Did you want to do a rebuttal?

>> Yes, your honor. Um >> Go ahead. >> Your honor, this um bill of review should be granted because there was no first bite at the apple.

Um and I do want to draw the court's attention to the index of authorities that we filed and specifically to attachment seven, Errol C. Wales Transportation Inc. Um this was a case out of um out of Dallas.

And also to attachment eight, Wilson v. Dunn, which was a Texas Supreme Court case. Your honor, these cases make very clear um that even if someone receives actual service, that is not sufficient to solve the jurisdictional problems when service of process requirements are not met.

Um in in these cases, at least one of them, it was it was very clear that the defendant um himself received actual service. Um but that that wasn't sufficient. Um and in our case, there was no actual service Uh that was even received.

Your Honor, the um uh the respondent could have brought Martin here as well. Martin was the respondent's witness. Um we brought our witness here.

And they chose not to bring Martin here, and Martin's affidavit um is is really interesting in what it doesn't say. It discusses Martin's observations of papers on the door, and it does not discuss his observations of Mr Rodriguez seeing these papers. Um that statement was produced immediately before our last hearing.

I think our hearing was on the 21st, and it it was produced either the 20th or the morning of the hearing. Um but regardless, Your Honor, again, actual service is not the standard. It is um strict compliance.

That's the standard. There was no personal jurisdiction over Mr Rodriguez in this case. Um and there was no um and and there was no proper notice of the default judgment provided to Mr Rodriguez.

And for these reasons, Your Honor, we request that the bill of review be granted, and that the the judgment in the underlying case be set aside. >> Thank you, counsel. Um um Attorney Smith, how how does your client get over the hump of the return of service?

Go to the underlying case, December 21st, 2023. That's when the return of service was put on file with the court. How does your client overcome the misspelling of the address in the return of service?

>> My only response is that a additional N in the name is not a substantive change and that again the witness statement we have on file saying that the the documents were seen on the door of the residence that we are discussing um we would hope would show that that misspelling was not substantive so as to render service ineffective or that the the documents were posted on a random house that is spelled with that address on the street name. >> Well, and and that's where the rubber meets the road because the citation itself would be rendered defective because the address is not identical. So, the court is going to grant the bill of review.

>> Thank you, Your Honor. >> You're welcome. Um did you file a proposed order, counsel?

>> Yes, Your Honor. >> Okay. Is it this one that is from April of this year?

>> No, Your Honor. Um >> Is there another one? >> I I in fact filed an updated one this week and I also sent it to Ms.

Rivera. Um >> Okay, I see it. The one on the 27th?

>> Yes. >> Okay. All right.

Um it's a little too wordy. So, I will draft the um order on the bill of review and I will get it sent out to you all here shortly. >> Thank you, Your Honor.

>> You're welcome. Thank you all. >> Honor.