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Smith v. Philley

Court of Appeals of Texas, Second District, Fort Worth

January 30, 2014

TONY SMITH APPELLANT
v.
RON PHILLEY AND LYNDA PHILLEY APPELLEES

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

PANEL: GARDNER, WALKER, and MCCOY, JJ.

MEMORANDUM OPINION [1]

BOB MCCOY JUSTICE

In this restricted appeal, pro se appellant Tony Smith appeals the trial court's default judgment for pro se appellees Ron and Lynda Philley.

To prevail on a restricted appeal, an appellant must establish that (1) he filed a notice of the restricted appeal within six months of the judgment being signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the proceedings resulting in the complained-of judgment or timely file any postjudgment motions, requests for findings of fact and conclusions of law, or a notice of appeal within the time permitted by rule 26.1(a); and (4) error is apparent on the face of the record. Tex.R.App.P. 26.1(c), 30; Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004)). The only contested requirement of this restricted appeal—part of Smith's first issue—is whether error is apparent on the face of the record. Smith claims that there are multiple errors on the face of the record showing that he did not receive "proper service (or any service)."

Strict compliance with the rules governing service is mandatory if a default judgment is to withstand an attack on appeal, and failure to comply with these rules constitutes error on the face of the record. Lejeune, 297 S.W.3d at 256. There are no presumptions of valid issuance, service, and return of citation when examining a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985).

The Philleys filed their original petition on February 3, 2012, listing Erasmo Maldonado as the only defendant and seeking, among other things, a declaratory judgment that they owned the property at 1110 Cold Springs Road. Four days later, the Philleys filed their first amended original petition, adding Smith and 1110 Cold Springs Road Land Trust as defendants, adding a claim for fraud against Smith regarding his transactions involving the property, and seeking to void all deeds between Ben Ramos, Smith, 1110 Cold Springs Road Land Trust, and Maldonado. The Philleys alleged that Smith was trustee for 1110 Cold Springs Road Land Trust and listed Smith's and 1110 Cold Springs Road Land Trust's address for service as 201 E. Belknap St., Fort Worth, TX 76102.[2] The record contains the citation issued to Maldonado regarding the first amended original petition.

On March 27, 2012, the Philleys filed a sworn motion for alternative service of process under rule of civil procedure 106 with regard to Smith and 1110 Cold Springs Road Land Trust, claiming that their process server's attempts at personal service had been unsuccessful. The Philleys asked the court to authorize service by certified mail at 201 E. Belknap St., Fort Worth, TX 76102. The Philleys attached the affidavit of their process server, in which the server averred that he was unable to serve Smith at 201 E. Belknap St., Fort Worth, TX 76102 because he had been "unable to locate Respondent Tony Smith." The process server's affidavit does not mention 1110 Cold Springs Road Land Trust.

The trial court signed an order authorizing alternative service of process on March 30, 2012. The trial court found that Smith's and 1110 Cold Springs Road Land Trust's last known address was 201 E. Belknap St., Fort Worth, TX 76102, and that alternative service "will be reasonably effective to give the Defendants notice of this suit." The trial court ordered that service on the defendants "of the citation and the accompanying copy of the Plaintiffs' Original Petition and Application for Temporary and Permanent Injunction in this case shall be accomplished via certified mail to Defendants' last known address, as referenced above."[3] [Emphasis added.] That is, the trial court ordered service of a petition in which Smith (and the trust) were not named as defendants. The Philleys were ultimately unsuccessful in serving Smith or the trust by certified mail.[4] The trial court entered a default judgment against Smith, the trust, and Maldonado.[5]

There is nothing in the record to show that Smith (or 1110 Cold Springs Road Land Trust) ever received service of any sort. But even if the record reflected that Smith had been served in compliance with the trial court's order authorizing alternative service of process, see Vespa, 98 S.W.3d at 752, error would remain on the face of this record because he would have been served with a petition in which he was not named as a defendant. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (holding that there was error on the face of the record when a sheriff's return showed that defendant was served with a version of the plaintiff's petition in which it was not named as a defendant). ...


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