Opinion
No. 04-16-00691-CV
05-03-2017
USAA FEDERAL SAVINGS BANK, Appellant v. Aaron J. WERLEIN, Appellee
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-05487
Honorable Solomon Casseb, III, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice REVERSED AND REMANDED
This is a restricted appeal from a default judgment against USAA Federal Savings Bank. We conclude the trial court erred in granting a default judgment when the return of service failed to show service of the plaintiff's original petition on USAA. We reverse the default judgment and remand the case to the trial court for further proceedings.
BACKGROUND
On March 30, 2016, Aaron J. Werlein filed an original petition against USAA for breach of contract, conversion, and violations of various state and federal statutes. USAA failed to file an answer. On May 6, 2016, the trial court rendered a default judgment against USAA for $14,347.63 in actual damages, $3,900.00 in statutory damages, and $12,000.00 in attorney's fees. On October 17, 2016, USAA filed a postjudgment answer. On October 18, 2016, USAA filed a notice of restricted appeal.
APPLICABLE LAW
A party may bring a restricted appeal if it: (1) filed a notice of the restricted appeal within six months after the judgment was signed; (2) was a party to the underlying lawsuit; (3) did not participate in the hearing that resulted in the judgment complained of; (4) did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (5) error is apparent on the face of the record. TEX. R. APP. P. 30, 26.1(c); Nizari Progressive Federal Union v. JP Morgan Chase Bank, 04-08-00536-CV, 2009 WL 282738, at *1 (Tex. App.—San Antonio 2009, no pet.). The "face of the record" in a restricted appeal consists of the papers on file with the trial court when it rendered judgment. Yazdchi v. Wells Fargo, No. 01-15-00381-CV, 2016 WL 6212998, at *2 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
When reviewing a default judgment in a restricted appeal, an appellate court may not presume valid issuance, service, or return of citation. Nizari, 2009 WL at *1 (citing Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)). If the record fails to show strict compliance with the Texas Rules of Civil Procedure relating to issuance, service, and return of citation, then the attempted service of process is invalid and of no effect. Id. (citing Uvalde Country Club and Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985)). "Strict compliance with the rules governing service of citation is mandatory if a default judgment is to withstand an attack on appeal." Ins. Co. of the State of Pennsylvania v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009). "Failure to comply with these rules constitutes error on the face of the record." Id.
DISCUSSION
USAA argues it was error on the face of the record for the trial court to render a default judgment in this case when (1) the return of service indicates Werlein served the citation without the original petition in violation of Texas law; (2) the return indicates Werlien served the citation on USAA and not its registered agent in violation of section 17.028 of the Texas Civil Practice and Remedies Code; (3) the return indicates the citation was served in a manner inconsistent with its terms; and (4) the default judgment awarded excessive attorney's fees.
We first address USAA's argument concerning the return of service. The return of service is not a trivial, formulaic document; it is prima facie evidence of the facts recited therein. Primate Constr., 884 S.W.2d at 152. Furthermore, it is the responsibility of the party seeking service, and not the process server, to ensure that proof of proper service is completed and reflected in the record. Id. at 153. Rule 106(a) of the Texas Rules of Civil Procedure requires service of the citation "with a copy of the petition attached thereto." TEX. R. CIV. P. 106(a). Rule 107, which governs the return of service, provides that "[t]he return, together with any document to which it is attached, must include . . . a description of what was served." TEX. R. CIV. P. 107(b)(3). Therefore, to demonstrate proper service, the return of service must include a description of the pleading that was served. Id. "The return must show service of the correct pleading, and omitting the type of document served to the defendant does not show service of any pleading." Yazdchi, 2016 WL 6212998, at *2.
Here, the return of service contained in the record states that the process server delivered a copy of the citation on April 5, 2016; however, the return of service does not state that the original petition or any other pleading was served with the citation. Because the record contains no proof that Werlein's original petition was served on USAA, it was error on the face of the record for the trial court to render a default judgment. See Primate Constr., 884 S.W.2d at 153 (reversing a default judgment when the return of service recited that the defendant was served with a version of the petition in which the defendant had not been sued); Yazdchi, 2016 WL 6212998, at *2. (reversing a default judgment when the return of service did not show service of any pleading); Shamrock Oil Co. v. Gulf Coast Natural Gas, Inc., 68 S.W.3d 737, 739 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (reversing a default judgment when the return of service did not indicate which petition was served on the defendant).
USAA further argues, and we agree, that it satisfies the remaining requirements for a restricted appeal. USAA's notice of restricted appeal was filed within six months after the judgment was signed. USAA was a party to the lawsuit. The record shows that USAA did not participate in the hearing that resulted in the default judgment, nor did USAA timely file any postjudgment motions or requests for findings of fact and conclusions of law.
Werlein argues that this restricted appeal must fail because USAA's postjudgment answer was the equivalent of a postjudgment motion. The case Werlein cites to support his argument, Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 317 (Tex. App.—Fort Worth 2015, no pet.), is distinguishable. In Gartman, the appellate court concluded that the appellant's special appearance was the equivalent of a postjudgment motion because it implicitly sought to vacate the default judgment and it was timely filed within thirty days after the default judgment was signed. Id. at 317-18. Here, USAA's answer could not qualify as a timely postjudgment motion because it was filed more than five months after the default judgment was signed.
Werlein also argues that this restricted appeal must fail because USAA did not show that it had a meritorious defense. However, USAA was not required to show that it had a meritorious defense. An appellant in a restricted appeal need not show a meritorious defense. Castanon v. Monsevais, 703 S.W.2d 295, 297 (Tex. App.—San Antonio 1985, no writ) (citing Pace Sports, Inc. v. Davis Bros. Pub. Co., Inc., 514 S.W.2d 247, 247-48 (Tex. 1974)).
Finally, Werlein suggests that the affidavit of Israel Casas, stating that he served the citation and the petition on USAA, resolves any error. Under the proper standard of review, we must consider the record as it existed at the time of the default judgment. See Yazdchi, 2016 WL 6212998, at *2 (providing that "[t]he face of the record in a restricted appeal consists of the papers on file with the trial court when it rendered judgment" and the appellate court "may not consider evidence or documents that were not before the trial court when it rendered judgment."). Thus, we cannot consider Casas's affidavit because it was executed and filed more than five months after the default judgment was rendered. But even if we could consider Casas's affidavit, it would not change the result. Rule 107(b)(3) requires the return of service to contain a description of the pleading that was served. See TEX. R. CIV. P. 107(b)(3). Casas's affidavit does not alter the fact that the trial court committed an error when it rendered a default judgment when the return of service did not comply with the Texas Rules of Civil Procedure.
We conclude that it was error on the face of the record for the trial court to render a default judgment when the return of service failed to show service of the original petition. We further conclude that all of the other requirements for a restricted appeal are satisfied. Therefore, the default judgment against USAA must be reversed.
Having determined the trial court's judgment must be reversed based on a defective return of service, we need not address USAA's remaining arguments concerning other errors on the face of the record. See TEX. R, APP. P. 47.1 (requiring appellate courts to issue opinions that are as brief as practicable but also address every issue raised and necessary to the final disposition of the appeal).
CONCLUSION
The trial court's judgment is reversed. This case is remanded to the trial court for further proceedings.
Karen Angelini, Justice