Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 92nd District Court of Hidalgo County, Texas.
Contreras, Longoria, and Hinojosa Justices
John Alcala filed this restricted appeal of a default
judgment rendered against him. By one issue, appellant
contends that the trial court did not have jurisdiction
because he was not properly served with process. We affirm.
August 22, 2016, appellee Edinburg Consolidated Independent
School District (ECISD) filed suit against Alcala and Tim
Hayes, together doing business as Kiwix Technology Services
(Kiwix). Appellant and Hayes are not residents of Texas and
do not maintain a regular place of business or registered
agent in Texas. ECISD requested the issuance of a citation,
and the Texas Secretary of State issued a citation for
forwarding to "John Alcala and Tim Haynes d/b/a Kiwix
Technology Service [sic]." The citation was forwarded to
the address appellant provided to ECISD as his principal
place of business. Process was returned on September 20,
2016, with the notation "Return to Sender, Refused,
Unable to Forward." The Secretary of State issued
certification of service of process on September 21, 2016. On
January 19, 2017, ECISD moved for default judgment. A hearing
was held, and the court rendered judgment for ECISD on March
1, 2017. On July 14, 2017, appellant filed his notice of
restricted appeal. See Tex. R. App. P. 30.1. This
restricted appeal followed.
REQUIREMENTS OF A RESTRICTED APPEAL
appellant must satisfy four requirements to succeed on a
restricted appeal: (1) the notice of restricted appeal was
filed within six months of the date of the judgment; (2) it
was a party to the suit; (3) it did not participate in the
hearing that resulted in the judgment complained of and did
not timely file any post-trial motions or requests for
findings of facts and conclusions of law; and (4) error is
apparent on the face of the record. Tex.R.App.P. 26.1, 30;
Cox v. Cox, 298 S.W.3d 726, 730 (Tex. App.-Austin
2009, no pet.). These first three requirements are
jurisdictional and will cut off a party's right to seek
relief by way of restricted appeal if they are not met.
Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.-Fort
Worth 2001, pet. denied).
the first requirement, appellant filed his notice of appeal
within six months of the judgment. The trial court rendered
judgment on March 1, 2017, and appellant timely filed his
notice of appeal on July 14, 2017. See Tex. R. App.
P. 26.1; Cox, 298 S.W.3d at 730.
the second requirement, appellant is a proper party to this
suit. Appellant was listed as a defendant in the suit by
ECISD, and his name appeared on the citation. See
the third requirement, appellant did not participate in the
hearing that resulted in the judgment complained of.
Appellant did not file an answer to the complaint and was not
present at the hearing on ECISD's motion for default
judgment. A review of the record confirms that appellant did
not file any post-trial motions or requests for findings of
fact or conclusions of law. See id.
the first three requirements satisfied, we turn to the final
requirement, whether error appears on the face of the record.
Error on the Face of the Record
argues that error is apparent on the face of the record
because the record indicates that he was ...