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Gary Beavers Construction v. Skloss

Court of Appeals of Texas, Fourth District, San Antonio

June 20, 2018

GARY BEAVERS CONSTRUCTION, Gary W. Beavers, and Amy Beavers, Appellants
v.
Robert W. SKLOSS and Jaclyn H. NGUYEN, Appellees

          From the 452nd District Court, Edwards County, Texas Trial Court No. 4048 Honorable Robert Hoffman, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          MARIALYN BARNARD, JUSTICE

         This is a restricted appeal in which appellants, Gary Beavers Construction ("Beavers Construction"), Gary W. Beavers, and Amy Beavers, challenge a default judgment rendered against them and in favor of appellees, Robert W. Skloss and Jaclyn H. Nguyen. On appeal, appellants contend error exists on the face of the record because: (1) the record fails to affirmatively show strict compliance with the rules of civil procedure governing citations and returns; (2) the petition does not show a good cause of action upon which a default judgment could be entered; (3) the default judgment awards damages in excess of the damages specifically pled; and (4) the evidence is legally insufficient to support the damages awarded. Because we agree error exists on the face of the record, we reverse the trial court's judgment and remand the cause for further proceedings.

         BACKGROUND

         In January of 2014, Skloss and Nguyen entered into a contract with Beavers Construction to build a custom home. Under the terms of the contract, Skloss and Nguyen agreed to pay Beavers Construction for the cost of the construction project, plus fifteen percent of such cost. The construction project was budgeted for $499, 545.00, inclusive of the fifteen percent.

         According to Skloss and Nguyen, Beavers Construction exhausted the home's budget one year into the project and abandoned the project. Skloss and Nguyen ultimately sued Beavers Construction and its owners, Amy and Gary Beavers (collectively, "the Beavers, "), outlining a number of projects they alleged Beavers Construction failed to complete and arguing that they were unable to secure permanent financing as a result of Beavers Construction's failure to substantially complete the home. Based on these allegations, Skloss and Nguyen brought causes of action for breach of contract, negligence, violations of the Texas Deceptive Trade Practices Act ("DTPA"), violations of the Texas Trust Fund Statute, and fraud. Skloss and Nguyen also sought to recover actual damages, punitive damages, and attorney's fees. Copies of the returns show that a private process server personally served Beavers Construction and the Beavers with a copy of the citation and original petition on June 3, 2016.

         After Beavers Construction and the Beavers failed to file an answer, Skloss and Nguyen filed a motion for default judgment. In support of their motion, Skloss and Nguyen attached an affidavit from their attorney, who testified they were entitled to recover reasonable attorney's fees in the amount of $15, 000.00. Thereafter, the trial court held a hearing on the default judgment motion. At the hearing, neither Beavers Construction nor the Beavers appeared, and the trial court heard testimony from Skloss regarding the claims. Copies of the parties' contract and the DTPA notice letter were admitted into evidence. Attached to the DTPA notice letter was an itemized spreadsheet, detailing each construction item, amount of payment requested by Beavers Construction, amount paid by Skloss and Nguyen, and any comments Skloss had about the item. The trial court ultimately rendered default judgment in favor of Skloss and Nguyen and awarded them the full amount of damages requested in their motion. Within six months, Beavers Construction and the Beavers filed this restricted appeal.

         ANALYSIS

         On appeal, Beavers Construction and the Beavers argue the trial court's default judgment should be set aside because error exists on the face of the record. According to the Beavers, error exists on the face of the record because: (1) the record fails to affirmatively show strict compliance with the rules of civil procedure governing citations and returns; (2) the petition does not show a good cause of action upon which a default judgment could be entered; (3) the default judgment awards damages in excess of the damages specifically pled; and (4) the evidence was legally insufficient to support the damages.

         Restricted Appeal

         To obtain reversal of an underlying judgment by restricted appeal, an appellant must establish that (1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact or conclusions of law; and (4) any error is apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Each element is mandatory and jurisdictional. Ibarra v. City of Laredo, No. 04-11- 00035-CV, 2012 WL 3025709, *4 (Tex. App.-San Antonio July 25, 2012, pet. denied) (mem. op.) (citing Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.-San Antonio 1995, no writ)).

         The parties do not dispute that Beavers Construction and the Beavers satisfied the first three jurisdictional elements of a restricted appeal. Only the fourth element - error apparent on the face of the record - is at issue in this case. For the purposes of a restricted appeal, the face of the record comprises the clerk's record, the reporter's record, as well as any other evidence otherwise produced by the parties to the trial court before the final judgment. See Norman Commc'n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Schoendienst v. Haug, 399 S.W.3d 313, 316 (Tex. App.-Austin 2013, no pet.). For the fourth element to be satisfied, error must be apparent on the face of the record as opposed to inferred. See Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004).

         Compliance with Texas Rules ...


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