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USAA Federal Savings Bank v. Werlein

Court of Appeals of Texas, Fourth District, San Antonio

May 3, 2017

USAA FEDERAL SAVINGS BANK, Appellant
v.
Aaron J. WERLEIN, Appellee

         From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-05487 Honorable Solomon Casseb, III, Judge Presiding

          Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Karen Angelini, 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 post judgment 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 post judgment 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 ...


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