Operation Blackstone: The Hot Facts and Timeline of Anthony Quinn Welch’s Incarceration for Tax Fraud

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant Eleow Hunt (“Hunt”) files this Motion for Summary Judgment against Plaintiff Anthony Welch (“Welch”) and in support thereof shows as follows:

Summary of Argument

This is a bill of review action brought by Welch against Hunt in connection with a summary judgment obtained by Hunt against Welch in Cause No. 2005-58363; Antowain Smith v. Anthony Welch et. al.; In the District Court of Harris County, Texas, 269th Judicial District (“Underlying Suit”) almost thirteen years prior to the filing of this action. The summary judgment was ultimately severed and ordered to proceed as Cause No. 2005-58363-B; Antowain Smith v. Anthony Welch et. al.; In the District Court of Harris County, Texas, 269th Judicial District. (“Severed Action”).

It is well-settled under Texas law that a petition for bill of review must be filed within four years of the date of the disputed judgment. The only way a petitioner may overcome the four-year limitation is to prove extrinsic fraud or fraud that denies the petitioner the opportunity to fullylitigate at trial all the rights or defenses that the petitioner was entitled to assert.

Significantly, Texas courts, including the Fourteenth Court of Appeals, have consistently held that extrinsic fraud does not exist where a bill of review petitioner had actual notice of a lawsuit against him yet made no attempt to act on his rights until more than four years after entry of the judgment.

Here, Welch claims that the summary judgment against him should be set aside because “he was incarcerated and barred from attending and presenting any defense to [Hunt’s] claims.”

PLAINTIFF’S ORIGINAL PETITION FOR BILL OF REVIEW AND REQUEST FOR TEMPORARY INJUNCTION at ¶6.

Welch also claims that the summary judgment should be set aside because “he did not have notice of that judgment, nor of Motion for Default Summary Judgment itself [because Hunt] failed to serve [Welch] at his correct address [although Hunt] was aware at the time of the filing of the motion of [Welch’s] incarceration but served [Welch] at his prior residence.” See id. at ¶9.

However, the undisputed summary judgment evidence conclusively negates the essential element of extrinsic fraud in the procurement of the summary judgment at issue. Specifically, the undisputed summary judgment evidence conclusively establishes that Welch had actual notice of Hunt’s claims in the Underlying Suit.

In fact, Welch made an appearance and actively participated in the Underlying Suit for some 18 months, including periods prior to as well as during his incarceration. Yet Welch made no attempt to act on his rights relative to Hunt’s claims against him until almost 13 years after entry of final judgment; specifically:

·         Welch did not update his mailing address with the Court whenever it changed fromthe Lake Mist Address.

·         Welch did not seek to have the Court grant him permission to appear in person or by affidavit, deposition, telephone, or other effective means.

·         Even if Welch had been unaware of the judgment during his incarceration, he was release from prison more than 9 years before he filed this action.

Moreover, Welch was aware of the actual judgment at the very latest by March 10, 2017, more than four years prior to the filing of this action. At that time, Welch made an appearance in a tax suit against a property that he owned in an effort to claim the excess proceeds from a tax sale.

Hunt was also name in the tax suit as an in rem only defendant by virtue of his judgment lien, which was recorded on April 9, 2009.  Therefore, the Court must enter judgment in favor of Hunt as a matter of law.

Statement of Undisputed Material Facts

On September 9, 2005, Antowain and Kreseda Smith (“Underlying Plaintiffs”) filed the Underlying Suit against Welch, Hunt, and three other parties. See PLAINTIFF’S ORIGINAL PETITION (filed September 9, 2005 in the Underlying Suit).

On October 4, 2005, Underlying Plaintiffs served Welch with process in the Underlying Suit at 40 Lake Mist Drive, Sugar Land, Texas 77479 (“Lake Mist Address”). See (Returned) CITATION (filed October 24, 2005 in the Underlying Suit).

On December 8, 2005, Welch appeared pro se in the Underlying Suit, filing and serving written discovery on one of the Underlying Plaintiffs. See DEFENDANT’S FIRST REQUEST FOR PRODUCTION TO PLAINTIFF (filed December 8, 2005 in the Underlying Suit); DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (filed December 8, 2005 in the Underlying Suit); DEFENDANT’S FIRST REQUEST FOR ADMISSIONS TO PLAINTIFF (filed December 8, 2005 in the Underlying Suit).

Welch actively participated in the Underlying Suit as a pro se Defendant from December 8, 2005 through May 8, 2006. See, e.g., DEFENDANT’S ANSWERS TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION (filed February 17, 2006 in the Underlying Suit); DEFENDANT’S ANSWERS TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES (filed February 17, 2006 in the Underlying Suit).

On May 8, 2006, Wayne E. Revack filed a notice of appearance as Welch’s counsel of record. See APPEARANCE OF COUNSEL (filed May 8, 2006 in the Underlying Suit).

On October 13, 2006, Hunt filed his original cross-claim against Welch in the Underlying Suit, which was served on Welch’s then-counsel of record, Mr. Revack. See DEFENDANT ELEOW HUNT’S ORIGINAL CROSS-CLAIM (filed October 13, 2006 in the Underlying Suit).

On January 23, 2007, Welch gave a deposition in the Underlying Suit; excerpts from the deposition are part of the Court’s record.

See, e.g., EXHIBIT 4 to DEFENDANTS ELEOW HUNT AND HERSCHELL HUNT’S MOTION TO STRIKE PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE AND REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT (“Hunt’s Motion to Strike Welch’s Sham Affidavit”) (filed June 13, 2007 in the Underlying Suit).

On or about February 14, 2007, Welch was indicted on four counts of preparing false income tax returns and two counts of filing fraudulent income tax claims on behalf of Underlying Plaintiffs.

See February 28, 2007 News Release by the U.S. Attorney’s Office for the Southern District of Texas: https://www.justice.gov/sites/default/files/tax/legacy/2007/06/05/txdv-2-28-Welch.pdf.

On February 27, 2007, Welch was arrested on the charges in the indictment. See id.

On March 6, 2007, Welch was arraigned on the charges in the indictment. At the arraignment bond was set but not made by Welch so that he remained incarcerated.

See Arraignment Minutes (filed on March 6, 2007 in Case No. 4-07-cr-00044; United States of America v. Anthony Welch;

In the United States District Court for the Southern District of Texas (“Welch Criminal Case”)), attached hereto as Exhibit A.

That same day (i.e., March 6, 2007), Mr. Revack filed an agreed motion for withdrawal of counsel signed by Welch. The motion identified the Lake Mist Address for Welch, not the address of the Federal Detention Center (“FDC”) in downtown Houston or whatever federal prison in which Welch was being held.

The motion also set forth pending deadlines in the case, including the then-May 14, 2007 trial setting. See AGREED MOTION FOR WITHDRAWAL OF COUNSEL (filed March 6, 2007 in the Underlying Suit).

On March 9, 2007, Welch was released from federal custody on $80,000.00 bond. See Government’s Motion for an Arrest Warrant and Detention Pending Trial for Defendant’s Violation of Conditions of Release (filed on March 27, 2007 in the Welch Criminal Case), attached hereto as Exhibit B.

On March 12, 2007, the Court entered an order permitting Mr. Revack to withdraw as Welch’s counsel of record in the Underlying Suit. See ORDER GRANTING MOTION FOR WITHDRAWAL OF COUNSEL (signed March 12, 2007 in the Underlying Suit).

After the Court entered the order permitting Welch’s counsel to withdraw, Hunt’s counsel served Welch with every pleading in the Underlying Suit at the Lake Mist Address, the mailing address provided by Welch and his counsel in their agreed motion for withdrawal of counsel.

Hunt’s counsel served all pleadings at the Lake Mist Address because this was the mailing address provided by Welch and his former counsel so that Hunt’s counsel believed that Rule 21a of the Texas Rules of Civil Procedure required her to serve Welch at this address.

See Affidavit of Laura J. Coe (“Coe Affidavit”), attached hereto as Exhibit C.

Similarly, the Court (and other parties) also sent all notices and orders to Welch at the Lake Mist Address.

See, e.g., COURT’S LETTER TO PARTIES RE REFERRAL TO MEDIATION COURT TO COUNSEL (signed April 26, 2007 in the Underlying Suit); DOCKET CONTROL ORDER (signed April 26, 2007 in the Underlying Suit).

On March 22, 2007, the federal government discovered that the check Welch wrote for his bond on March 9, 2021 was still bouncing because the funds supposedly deposited by Welch into the account on which the check was drawn were from a non-existent bank account.

See Exhibit B, Government’s Motion for an Arrest Warrant and Detention Pending Trial for Defendant’s Violation of Conditions of Release.

On March 29, 2007, Welch was rearrested.

See Bond Revocation Minutes (filed on March 29, 2007 in the Welch Criminal Case), attached hereto as Exhibit D.

On March 30, 2007, Welch’s bond was revoked so that he was to be detained pending trial.

See Order of Revocation of Pretrial Release (signed on March 30, 2007 in the Welch Criminal Case), attached hereto as Exhibit E.

On April 16, 2007, Welch pled guilty to two of the four counts of the indictment in the Welch Criminal Case.

See Plea Agreement of Anthony Quinn Welch (filed on April 16, 2007 in the Welch Criminal Case), attached hereto as Exhibit F.

Meanwhile, Welch continued to participate in the Underlying Suit.

For example, on or about April 30, 2007, two weeks after his guilty plea and while incarcerated in the FDC, Welch executed an affidavit in support of Underlying Plaintiffs’ response to a motion for summary judgment filed against Underlying Plaintiffs by Hunt.

See EXHIBIT 2 to PLAINTIFFS’ RESPONSE TO ELEOW HUNT’S AND HERSCHELL HUNT’S MOTION FOR PARTIAL SUMMARY JUDGMENT (filed May 1, 2007 in the Underlying Suit).

However, Welch failed to update his mailing address with the District Clerk, Court, or parties.

Welch’s affidavit testimony conflicted with his prior deposition testimony and sworn interrogatory responses without providing any explanation for the conflict.

Consequently, on May 7, 2007, Hunt’s counsel met Welch at the FDC to reconcile the extensive conflicts between Welch’s affidavit testimony, and prior deposition testimony and sworn interrogatory responses in Underlying Suit.

The substance of that meeting is detailed in Hunt’s Motion to Strike Welch’s Sham Affidavit in the Underlying Suit.

See DEFENDANTS ELEOW HUNT AND HERSCHELL HUNT’S MOTION TO STRIKE PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE at EXHIBIT 2, 5 (filed June 13, 2007 in the Underlying Suit).

On July 27, 2007, Welch was convicted and sentenced in the Welch Criminal Case. See Judgment in a Criminal Case (entered on July 27, 2007 in the Welch Criminal Case), attached hereto as Exhibit G.

On August 20, 2008, Hunt filed a motion for summary judgment against Welch and served Welch by certified mail to the Lake Mist Address, Welch’s address of record with the District Clerk in the Underlying Suit.

See DEFENDANT ELEOW HUNT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT ANTHONY WELCH (filed August 20, 2008 in the Underlying Suit).

On October 10, 2008, the Court granted Hunt’s motion for summary judgment against Welch. See ORDER GRANTING PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT ANTHONY WELCH (signed October 10, 2008 in the Underlying Suit).

On October 16, 2008, Hunt filed a motion to sever and for entry of final judgment, seeking to sever his claims against Welch into a separate action so that the interlocutory summary judgment against Welch could become final.

The motion and notice of hearing were served on Welch by certified mail to the Lake Mist Address, Welch’s address of record with the District Clerk in the Underlying Suit.

See DEFENDANT ELEOW HUNT’S MOTION TO SEVER AND FOR ENTRY OF FINAL JUDGMENT (filed October 16, 2008 in the Underlying Suit).

On November 20, 2008, the Court granted the motion to sever and for entry of final judgment, ordering that Hunt’s claims against Welch and the interlocutory summary judgment were severed from the remaining claims in Underlying Suit and that the severed cause proceed as Cause No. 2005-58363-B; Antowain Smith v. Anthony Welch et. al.; In the District Court of Harris County, Texas, 269th Judicial District (“Severed Action”).

See ORDER GRANTING DEFENDANT ELEOW HUNT’S MOTION TO SEVER AND FOR ENTRY OF FINAL JUDGMENT (entered November 20, 2008 in the Underlying Suit); FINAL JUDGMENT (entered on November 20, 2008 in the Severed Action).

On April 9, 2009, Hunt recorded an Abstract of Judgment in Harris County, Texas. See Abstract of Judgment (recorded on April 9, 2009 in the Real Property Records of Harris County, Texas under Clerk’s File No. 20090417805), attached hereto as Exhibit H.

On June 8, 2012, Welch was released from federal custody. See Inmate Locator Results for Anthony Welch from Federal Bureau of Prisons Website, attached hereto as Exhibit I.

On March 10, 2017, Welch made an appearance in Cause No. 2014-25929; Harris County, et. al. v. Anthony Welch et. al.; In the District Court of Harris County, Texas, 165th Judicial District (“Welch Property Tax Suit”), a tax suit filed by the local taxing authorities, claiming excess proceeds from the tax sale of a property owned by Welch.

See Answer (filed March 10, 2017 in Welch Property Tax Suit), attached hereto as Exhibit J. Hunt was named as an in rem only defendant in the Welch Property Tax Suit because of his judgment lien recorded in connection with the summary judgment in the Underlying Suit so that Welch was certainly aware of Hunt’s judgment in the Underlying Suit by March 10, 2017, more than four years prior to the filing of the instant action.

See Original Petition (filed September 16, 2014 in Welch Tax Suit), attached as Exhibit K; see also Exhibit H, Abstract of Judgment.

On November 2, 2018, Hunt requested a writ of execution against Welch in the Severed Action. See REQUEST FOR CIVIL/FAMILY POST-JUDGMENT WRITS (filed on November 2, 2018 in the Severed Action).

On November 9, 2018, the District Clerk issued a writ of execution (“Writ of Execution”) against Welch in the Underlying Severed Action for the seizure and sale of Chattels, Personal Property, or Real Estate belonging to Welch.

On November 29, 2018, Deputy Terri Southall served Welch with the Writ of Execution.

At that time, Welch did not challenge the validity of Hunt’s judgment but instead informed Deputy Southall that he had nothing and intended to file for bankruptcy protection.

The Writ of Execution was returned null bona.

See (Returned) WRIT OF EXECUTION (filed on December 26, 2018 in the Severed Action).

On August 23, 2021, almost thirteen years after the entry of the judgment (and more than nine years after being released from prison, more than four years after appearing in the Welch Property Tax Suit where Hunt was named as an in rem defendant by virtue of the judgment lien arising out of the judgment at issue, and almost three years after being served with the Writ of Execution), Welch filed the instant action, seeking to set aside Hunt’s judgment.

Standard of Review

“When reviewing a [traditional] summary judgment, [courts] follow these well-established rules:

(1) The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;

and

(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the non-movant.”

Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)).

“Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff’s claims, Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex. 1995), or establishes all elements of an affirmative defense to each claim.” Id. (citing Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984)).

Summary Judgment Evidence

Hunt relies on the records contained in the Court’s file in the Underlying Suit and Severed Action and referenced herein and asks that the Court take judicial notice of these records and incorporates this evidence into this Motion by reference.

Hunt also includes and relies on the supporting evidence filed with Defendant’s Motion for Summary Judgment and incorporates this evidence into this Motion by reference as if set forth fully herein as follows:

Exhibit A:   Arraignment Minutes (in Welch Criminal Case)

Exhibit B:  Government’s Motion for an Arrest Warrant and Detention Pending Trial for Defendant’s Violation of Conditions of Release (in Welch Criminal Case)

Exhibit C:   Affidavit of Laura J. Coe

Exhibit D:      Bond Revocation Minutes (in Welch Criminal Case)

Exhibit E:      Order of Revocation of Pretrial Release (in Welch Criminal Case)

Exhibit F:           Plea Agreement of Anthony Quinn Welch (in Welch Criminal Case)

Exhibit G:       Judgment in a Criminal Case (in Welch Criminal Case)

Exhibit H:      Abstract of Judgment (in Underlying Suit)

Exhibit I:  Inmate Locator Results for Anthony Welch from Federal Bureau of Prisons Website

Exhibit J:       Answer (in Welch Property Tax Suit)

Exhibit K:      Original Petition (in Welch Property Tax Suit)

Argument & Authorities

A bill of review is an equitable proceeding to set aside a judgment that is no longer appealable or subject to a motion for new trial.

See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

Although it is an equitable proceeding, the fact that an injustice may have occurred is not sufficient to justify relief by bill of review.

See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999).

A bill of review is proper only where a party has exercised due diligence to pursue all adequate legal remedies against a judgment and, at the time the bill is filed, there is no adequate legal remedy available because, through no fault of the petitioner, extrinsic fraud, accident, or mistake precludes presentation of a meritorious claim or defense.

See King Ranch, 118 S.W.3d at 751-52.

In general, a petition for bill of review must be filed within four years of the date of the disputed judgment.

See TEX. CIV. PRAC. REM. CODE §16.051.

The only exception to the four-year limitation is when the petitioner proves extrinsic fraud.

Manley v. Parsons, 112 S.W.3d 335, 338 (Tex. App.—Corpus Christi 2003, pet. denied).

Accordingly, once the limitations period has passed, a showing of accident or mistake will no longer suffice.

Alderson v. Alderson, 352 S.W.3d 875, 878 (Tex. App.—Dallas 2011, pet. denied).

Extrinsic fraud is fraud that denies a party the opportunity to fully must show that it was the respondent’s actions, rather than his own inaction, that denied him the opportunity to present a meritorious claim or defense within the limitations period.

See Phillips v. Hopwood, 329 S.W.2d 452, 455-59 (Tex. Civ. App.—Houston [1st Dist.] 1959, writ ref’d n.r.e.).

Significantly, Texas courts, including the Fourteenth Court of Appeals, have consistently held that a bill of review fails as a matter of law where the petitioner had actual notice of a lawsuit against him yet made no attempt to act on his rights until more than four years after entry of the judgment.

See, e.g., Alderson, 352 S.W.3d at 878 (upholding summary judgment dismissing bill of review on limitations where petitioner was fully aware that a suit was pending against him); see also Layton v. Nationsbanc Mortg. Corp., 141 S.W.3d at 764 (“[bill of review petitioner] was clearly aware of [respondent’s] complaint, was not misled by the alleged misnomer, and was in fact in possession of her petition.

The errors in service did not prevent [petitioner] from appearing in court to defend itself or deny it the right to fully litigate its rights or defenses in the matter.”); Dispensa v. University State Bank, 987 S.W.2d 923, 927-28 (Tex. App.—Houston [14th Dist.] 1999, no pet.)

(“Even though [bill of review petitioner] was not served, he did receive notice of the judgment. . . . Thus, [petitioner’s] current predicament is not a direct result of lack of notice of the suit but a result of his own inaction. This means the judgment is not void.”).

In Alderson, Karen Huber (“Huber”) filed a lawsuit against James Alderson (“Alderson”) in 1989 seeking to recover on a promissory note.

It was undisputed that Alderson was served with process and filed an answer in the lawsuit.

On November 8, 1989, Huber filed a motion for summary judgment and on January 11, 1990 the trial court granted the motion.

Alderson, 352 S.W.3d at 877.

Huber engaged in the following post-judgment collection activity.

The Dallas County District Clerk issued a writ of execution for the judgment on January 30, 1990.

The writ listed Alderson’s correct work address but was returned by the constable “nulla bona.”

Huber also filed an abstract of judgment in the Dallas County judgment records on February 12, 1990.

The District Clerk issued a second abstract of judgment on December 22, 1999 that was filed in the Dallas County judgment records on December 28.

A second writ of execution was issued on January 5, 2000. This writ correctly listed both Alderson’s work address and his home address, but the writ was again returned nulla bona. See id.

Huber’s judgment became dormant on January 5, 2010.

Huber filed an application for writ of scire facias to revive it.

On May 6, 2010 the trial court granted Huber’s application and ordered that the original judgment signed on January 11, 1990 was revived for all purposes.

In response to the revival of the judgment, Alderson filed a bill of review action, claiming the judgment was void because it violated his due process rights in that he was not given notice of the motion for summary judgment, the hearing on the motion, or the fact that a judgment was rendered.

The certificate of service on the motion showed that it was mailed to 6445 Freeport Parkway; however, Mr. Alderson’s correct work address was 8445 Freeport Parkway. See id.

In addition to claiming that he did not receive notice of the motion or judgment, Alderson also claimed that he believed the case had been dropped in response to his threat to file a cross-action.

Huber answered the bill of review action and filed a motion for summary judgment arguing that Alderson’s bill of review was barred by limitations. See id.

The trial court granted Huber’s motion for summary judgment and the Dallas Court of Appeals affirmed, holding that:

Alderson filed his bill of review approximately 20 years after the trial judge signed the judgment made the subject of the bill. In general, a petition for bill of review must be filed within four years of the date of the judgment. The only exception to this limitations period is when the petitioner proves extrinsic fraud. Accordingly, once the limitations period has passed, a showing of accident or mistake will no longer suffice.

***

Absent any showing that Alderson was prevented from litigating his rights and defenses by extrinsic fraud, we conclude the trial court properly held the bill of review was barred by limitations as a matter of law.

Alderson, 352 S.W.3d at 878 (citations omitted).

In reaching this conclusion, the Court of Appeals reasoned:

Alderson failed to provide any evidence to show that Huber engaged in a purposeful act of deception.

Although the motion for summary judgment was mailed to the wrong address, Alderson made no showing that this was anything other than a mistake or accident.

There is nothing in the record to show that Huber actively tried to prevent Alderson from knowing about the judgment.

Indeed, the record shows that shows that…Huber made the judgment a matter of public record within a month after it was signed.

Even if Alderson’s bill of review could be read as alleging extrinsic fraud, Alderson failed to show that it was Huber’s actions, rather than his own inaction, that denied him the opportunity to present a meritorious claim or defense within the limitations period.

Alderson was fully aware that a suit was pending against him.

His subjective belief that Huber had dropped the case is insufficient to raise a fact issue. Id. (emphasis added) (citations omitted).

In the instant action, the undisputed summary judgment evidence conclusively establishes that there was no extrinsic fraud on the part of Hunt.

Specifically, Hunt’s counsel served Welch with the summary judgment motion and notice by certified mail to the Lake Mist Address because Welch provided the address as his mailing address while incarcerated and never updated it.

Hunt’s counsel believed that Rule 21a required service of Welch at this address.

Further, the Court was also aware of Welch’s incarceration and sent notice to Welch at the Lake Mist Address.

See Exhibit C, Coe Affidavit.

However, even if there were evidence of extrinsic fraud, Welch had actual notice of the Hunt’s claims in Underlying Suit yet made no attempt to act on his rights until almost thirteen years after entry of Final Judgment in the Severed Action so that Welch’s bill of review action is barred by limitations as a matter of law.

Specifically, the summary judgment evidence establishes that:

·         Welch was personally served with process and made an appearance in the Underlying Suit.1

·         Welch was served through his then-attorney of record with Hunt’s cross-claim in the Underlying Suit.2

·         Welch was incarcerated when he signed an agreed motion for withdrawal of counsel. The agreed motion signed by Welch while he was incarcerated provided the Lake Mist Address as his mailing address.3

·         Welch never updated or changed his mailing address with the Court/District Clerk; even after his bond was revoked for writing a hot check for the bond and he pled guilty to charges against him, which would lead to prison time.4

·         After the Court permitted Welch’s counsel to withdraw, Hunt’s counsel served Welch with every pleading in the Underlying Suit at the Lake Mist Address. The Court also sent all notices and orders to Welch at the Lake Mist Address

·         Welch never sought to have the Court grant him permission to appear in person or by affidavit, deposition, telephone, or other effective means.5

In sum, Welch was not prevented from presenting a meritorious defense by the extrinsic fraud of Hunt. Rather, Hunt’s counsel served Welch at the address she believed was required by the Texas Rules and it was Welch’s inaction that denied him the opportunity to present a meritorious claim or defense within the limitations period.

1 See (Returned) CITATION (filed October 24, 2005 in the Underlying Suit); DEFENDANT’S FIRST REQUEST FOR PRODUCTION TO PLAINTIFF (filed December 8, 2005 in the Underlying Suit); DEFENDANT’S FIRST SET OF INTERROGATORIES TO PLAINTIFF (filed December 8, 2005 in the Underlying Suit); DEFENDANT’S FIRST REQUEST FOR ADMISSIONS TO PLAINTIFF (filed December 8, 2005 in the Underlying Suit).

2       See DEFENDANT ELEOW HUNT’S ORIGINAL CROSS-CLAIM (filed October 13, 2006 in the Underlying Suit).

3       See AGREED MOTION FOR WITHDRAWAL OF COUNSEL (filed March 6, 2007 in the Underlying Suit).

4       See generally Docket Sheet in the Underlying Suit.

5       See id.

Moreover, Welch had actual notice of the judgment more than four years prior to the filing of the instant action; specifically:

·         On April 9, 2009, more than 12 years prior to Welch’s filing the instant action, Hunt recorded his Abstract of Judgment putting Welch and the entire world on notice of his judgment.6

·         On March 10, 2017, more than 4 years prior to Welch’s filing the instant action, Welch filed an answer and litigated the Welch Tax Suit, which included Hunt as an in rem defendant based on the Judgment that Welch now seeks to have this Court vacate.

Therefore, as a matter of law, Welch’s bill of review action is barred by limitations so that Hunt is entitled judgment dismissing this action as a matter of law. Dispensa, 987 S.W.2d at 927-28 (“Even though [bill of review petitioner] was not served, he did receive notice of the judgment.

. . . Thus, [petitioner’s] current predicament is not a direct result of lack of notice of the suit but a result of his own inaction. This means the judgment is not void.”).

Conclusion

For these reasons, Defendant Eleow Hunt respectfully requests the Court grant Defendant’s Motion for Summary Judgment and enter an order dismissing with prejudice Plaintiff Anthony Welch’s bill of review action.

Defendant further request all other relief, in law and in equity, to which he is justly entitled.

6       See Exhibit H, Abstract of Judgment.

Respectfully submitted,

THE COE LAW FIRM, PLLC

By: /s/Laura J. Coe

Laura J. Coe
State Bar No. 00793524
700 Louisiana Street, Suite 3950
Houston, Texas 77002
Telephone: (713) 808-9405
Telecopier: (713) 808-9173
Email: lcoe@coelegal.com

ATTORNEY FOR DEFENDANT ELEOW HUNT