Court of Appeals of Texas, Fourth District, San Antonio
the 45th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-CI-05487 Honorable Solomon Casseb, III, Judge
Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios,
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.
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
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.).
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
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.
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.
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 ...