Preview
FILED
11/6/2023 4:17 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Christi Undewvood DEPUTY
DC-23-1 8949
Cause No.
Encompass Counseling, § In the District Court of
Wellness & Rehab, LLC, §
§
Petitioner, §
v. g Dallas County, Texas
§
§
Consilium Staffing, LLC, §
§
§
Respondent. § 193m Judicial District
Petitioner’s Bill of Review
Comes now, Petitioner, Victoria Ross, on behalf of Encompass Counseling Wellness &
Rehab, LLC, and in the interest of justice and fairness, files this bill of review for cause number
DC-22-16578, in Dallas County District Court, against Respondent Consilium Staffing, LLC, and
shows the court the following:
1. DISCOVERY CONTROL PLAN
Petitioner intends that discovery be conducted under Level 2 of Rule 190 Of the Texas
Rules of Civil Procedure.
2. PARTIES
Petitioner is an individual residing in Houston County, Georgia and is the managing
member of the company.
Respondent Consilium Staffing, LLC, is a company doing business in Texas and may be
served with process by and through its registered agent Matthew Baade located at 6225 North State
Highway 161, Suite 400, Irving, Texas 75038.
Page 1 of 5
3. JURISDICTION & VENUE
This bill of review is filed in the court of jurisdiction that granted the judgment now being
challenged by this bill of review and is within the residual four-year statute of limitations. Tex.
CiV. Prac. & Rem. Code § 16.051. Subject matter jurisdiction is proper in this Court because the
amount in controversy is Within the jurisdictional limits of the court in which Petitioner now sues.
Venue is proper in Dallas County, Texas, pursuant to § 15.002(a)(1) of the Civil Practice
& Remedies Code because it is the County in which all or a substantial part of the events/omissions
giving rise to the cause of action occurred. Pursuant to Texas Rule of Civil Procedure 47(c)(5),
Plaintiff seeks monetary relief not to exceed $250,000.
4. BILL 0F REVIEW INTRODUCTION
A bill of review is an independent equitable action brought by a party to a former action
seeking to set aside a judgment which is no longer appealable or subject to motion for new trial.
Tex. R. CiV. P. 329b(f). Under Rule 329b(f) of the Texas Rules of Civil Procedure, this Court can
set aside any judgment for good cause shown: On expiration of the time within which the trial
court has plenary power, a judgment cannot be set aside by the trial court except by bill of review
for sufficient cause, filed within the time allowed by law; provided that the court may at any time
correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule
316, and may also sign an order declaring a previous judgment or order to be void because signed
after the court's plenary power had expired. Tex. R. CiV. P. 329b(f). “A bill-of—review plaintiff
claiming no service is relieved of the obligation to prove the first two elements because a judgment
rendered without notice is constitutionally infirm regardless of whether the plaintiff possesses a
defense, he was prevented from making.” Nussbaum v. Builders Bank, 478 S.W.3d 104, 108 (Tex.
App—Fort Worth 2015, pet. denied).
Page 2 of 5
Here, there is good cause to set aside any alleged final judgment in Cause No. DC-22-
16578 because Petitioner was never served, and even if she was served, such process of service
was defective because it was not properly served on the company’s registered agent, and the notary
who executed the affidavit of service was conflicted because she had a financial interest in the
matter. These violations controvert proper service under Texas law and will render service of
process in effective.
Accordingly, Petitioner respectfully asks this Court to set aside the default judgment
granted in DC—22-16578 in this Court.
5. BACKGROUND
This Court issued a Default Judgement on January 20, 2023. [See Ex. A]. Petitioner’s agent,
Victoria Ross, has never been served with the lawsuit in DC-22-l65 78. Accordingly, that default
judgment was issued without notice to Ross. “[I]f a plaintiff was not served, constitutional due
process relieves the plaintiff from the need to show a meritorious defense.” Caldwell v. Barnes,
154 S.W.3d 93, 96 (Tex. 2004).
Currently, Petitioner’s bank accounts have been frozen. To make matters worse, a
transaction in excess of $22,000 came out of Victoria Ross’s other business, which is under a dba
and not under “Encompass Counseling, Wellness & Rehab, LLC,” who was the defendant in the
underlying case. This court has never appointed a receiver, issued writs of execution or attachment,
and has neither signed any turnover orders. Thus, this conduct, if related to Respondent, or its
attorney, warrants court intervention and possible disciplinary/sanctionable action.
6. STANDARD
As Rule 329b(t) indicates, the court can set aside any alleged final judgment or “sufficient
cause.” Tex. R. CiV. P. 329b(f). “[T] he requirements for obtaining a bill of review differ depending
Page 3 of 5
on the particular fact situation.” McDaniel v. Hale, 893 S.W.2d 652 (Tex. App. — Amarillo 1994,
writ denied).
“Bill of review plaintiffs claiming non-service, however, are relieved of two elements
ordinarily required to be proved in a bill of review proceeding.” Caldwell v. Barnes, 154 S.W.3d
93, 96 (Tex. 2004). The third element however, “may be considered established if the plaintiff
proves that [she] was not served with process due to no fault or negligence on his part because,
generally, an individual who is not served cannot be at fault in allowing a default judgment to be
entered.” Nussbaum, 478 S.W.3d at 108—09.
7. Notice of Authentication of Documents Pursuant to TRCP 193.7
Petitioner hereby provides actual notice to Respondent that Petitioner will use any or every
document produced by each and every Respondent in response to written discovery, in a pretrial
proceeding, or at trial.
Pursuant to rule 193.7 of the Texas Rules of Civil Procedure, any Respondent’s production
of a document in response to written discovery authenticates the document for use against that
Respondent or any other Respondent, unless, within ten (10) days or a longer or shorter time
ordered by the court, Respondent objects to the authenticity of the document, or any part of it,
stating the specific basis for its objection. An objection must be either on the record or in writing
and must have a good faith factual and legal basis. An objection made to the authenticity of only
part of a document does not affect the authenticity of the remainder.
8. Conditions Precedent
Petitioner states that all conditions precedent to suit have been performed or have occurred,
and that every notice required by law to be given has been properly and timely provided.
Page 4 of 5
9. Preservation Of Evidence/Spoliation Notice
Petitioner hereby requests and demands that Respondent preserve and maintain all
evidence pertaining to any claim or defense related to the incident made the basis of this lawsuit,
or the damages resulting therefrom, including contracts, emails, minutes of meetings, memoranda,
correspondence, financial records, diagrams, maps, photographs, Videotapes, audiotapes,
recordings, invoices, checks, files, facsimiles, voicemails, text messages, calendar entries, log
books, or information related to the reference claim. Failure to maintain such items shall constitute
a “spoliation” of the evidence.
10. PRAYER FOR RELIEF
Petitioner respectfully prays that the Court set aside any alleged final default judgment in
Cause DC-22-165 78 and grant this bill of review. Petitioner prays that she recover from
Respondent, actual damages, compensatory damages, general damages, special damages,
exemplary damages, pre-judgment interest, post judgment interest, attorney’s fees, costs and such
other relief to which Petitioner may be justly entitled.
Respectfully submitted,
ART AGUILAR LAW FIRM, PC
BY: /s/ Art Aguilar
Art Aguilar
SBN: 24091525
18001 Hwy 105 W, Suite 102
Montgomery, TX 77356
art@aguilar-trial-law. com
www.aguilar-trial-law.com
P: (713) 992-1104
F: (346) 502-3561
Veteran Owned Business*
Page 5 of 5
Preview
FILED 11/6/2023 4:17 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Christi Undewvood DEPUTY DC-23-1 8949 Cause No. Encompass Counseling, § In the District Court of Wellness & Rehab, LLC, § § Petitioner, § v. g Dallas County, Texas § § Consilium Staffing, LLC, § § § Respondent. § 193m Judicial District Petitioner’s Bill of Review Comes now, Petitioner, Victoria Ross, on behalf of Encompass Counseling Wellness & Rehab, LLC, and in the interest of justice and fairness, files this bill of review for cause number DC-22-16578, in Dallas County District Court, against Respondent Consilium Staffing, LLC, and shows the court the following: 1. DISCOVERY CONTROL PLAN Petitioner intends that discovery be conducted under Level 2 of Rule 190 Of the Texas Rules of Civil Procedure. 2. PARTIES Petitioner is an individual residing in Houston County, Georgia and is the managing member of the company. Respondent Consilium Staffing, LLC, is a company doing business in Texas and may be served with process by and through its registered agent Matthew Baade located at 6225 North State Highway 161, Suite 400, Irving, Texas 75038. Page 1 of 5 3. JURISDICTION & VENUE This bill of review is filed in the court of jurisdiction that granted the judgment now being challenged by this bill of review and is within the residual four-year statute of limitations. Tex. CiV. Prac. & Rem. Code § 16.051. Subject matter jurisdiction is proper in this Court because the amount in controversy is Within the jurisdictional limits of the court in which Petitioner now sues. Venue is proper in Dallas County, Texas, pursuant to § 15.002(a)(1) of the Civil Practice & Remedies Code because it is the County in which all or a substantial part of the events/omissions giving rise to the cause of action occurred. Pursuant to Texas Rule of Civil Procedure 47(c)(5), Plaintiff seeks monetary relief not to exceed $250,000. 4. BILL 0F REVIEW INTRODUCTION A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment which is no longer appealable or subject to motion for new trial. Tex. R. CiV. P. 329b(f). Under Rule 329b(f) of the Texas Rules of Civil Procedure, this Court can set aside any judgment for good cause shown: On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired. Tex. R. CiV. P. 329b(f). “A bill-of—review plaintiff claiming no service is relieved of the obligation to prove the first two elements because a judgment rendered without notice is constitutionally infirm regardless of whether the plaintiff possesses a defense, he was prevented from making.” Nussbaum v. Builders Bank, 478 S.W.3d 104, 108 (Tex. App—Fort Worth 2015, pet. denied). Page 2 of 5 Here, there is good cause to set aside any alleged final judgment in Cause No. DC-22- 16578 because Petitioner was never served, and even if she was served, such process of service was defective because it was not properly served on the company’s registered agent, and the notary who executed the affidavit of service was conflicted because she had a financial interest in the matter. These violations controvert proper service under Texas law and will render service of process in effective. Accordingly, Petitioner respectfully asks this Court to set aside the default judgment granted in DC—22-16578 in this Court. 5. BACKGROUND This Court issued a Default Judgement on January 20, 2023. [See Ex. A]. Petitioner’s agent, Victoria Ross, has never been served with the lawsuit in DC-22-l65 78. Accordingly, that default judgment was issued without notice to Ross. “[I]f a plaintiff was not served, constitutional due process relieves the plaintiff from the need to show a meritorious defense.” Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Currently, Petitioner’s bank accounts have been frozen. To make matters worse, a transaction in excess of $22,000 came out of Victoria Ross’s other business, which is under a dba and not under “Encompass Counseling, Wellness & Rehab, LLC,” who was the defendant in the underlying case. This court has never appointed a receiver, issued writs of execution or attachment, and has neither signed any turnover orders. Thus, this conduct, if related to Respondent, or its attorney, warrants court intervention and possible disciplinary/sanctionable action. 6. STANDARD As Rule 329b(t) indicates, the court can set aside any alleged final judgment or “sufficient cause.” Tex. R. CiV. P. 329b(f). “[T] he requirements for obtaining a bill of review differ depending Page 3 of 5 on the particular fact situation.” McDaniel v. Hale, 893 S.W.2d 652 (Tex. App. — Amarillo 1994, writ denied). “Bill of review plaintiffs claiming non-service, however, are relieved of two elements ordinarily required to be proved in a bill of review proceeding.” Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). The third element however, “may be considered established if the plaintiff proves that [she] was not served with process due to no fault or negligence on his part because, generally, an individual who is not served cannot be at fault in allowing a default judgment to be entered.” Nussbaum, 478 S.W.3d at 108—09. 7. Notice of Authentication of Documents Pursuant to TRCP 193.7 Petitioner hereby provides actual notice to Respondent that Petitioner will use any or every document produced by each and every Respondent in response to written discovery, in a pretrial proceeding, or at trial. Pursuant to rule 193.7 of the Texas Rules of Civil Procedure, any Respondent’s production of a document in response to written discovery authenticates the document for use against that Respondent or any other Respondent, unless, within ten (10) days or a longer or shorter time ordered by the court, Respondent objects to the authenticity of the document, or any part of it, stating the specific basis for its objection. An objection must be either on the record or in writing and must have a good faith factual and legal basis. An objection made to the authenticity of only part of a document does not affect the authenticity of the remainder. 8. Conditions Precedent Petitioner states that all conditions precedent to suit have been performed or have occurred, and that every notice required by law to be given has been properly and timely provided. Page 4 of 5 9. Preservation Of Evidence/Spoliation Notice Petitioner hereby requests and demands that Respondent preserve and maintain all evidence pertaining to any claim or defense related to the incident made the basis of this lawsuit, or the damages resulting therefrom, including contracts, emails, minutes of meetings, memoranda, correspondence, financial records, diagrams, maps, photographs, Videotapes, audiotapes, recordings, invoices, checks, files, facsimiles, voicemails, text messages, calendar entries, log books, or information related to the reference claim. Failure to maintain such items shall constitute a “spoliation” of the evidence. 10. PRAYER FOR RELIEF Petitioner respectfully prays that the Court set aside any alleged final default judgment in Cause DC-22-165 78 and grant this bill of review. Petitioner prays that she recover from Respondent, actual damages, compensatory damages, general damages, special damages, exemplary damages, pre-judgment interest, post judgment interest, attorney’s fees, costs and such other relief to which Petitioner may be justly entitled. Respectfully submitted, ART AGUILAR LAW FIRM, PC BY: /s/ Art Aguilar Art Aguilar SBN: 24091525 18001 Hwy 105 W, Suite 102 Montgomery, TX 77356 art@aguilar-trial-law. com www.aguilar-trial-law.com P: (713) 992-1104 F: (346) 502-3561 Veteran Owned Business* Page 5 of 5