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Alcala v. Edinburg Consolidated Independent School District

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 28, 2018

JUAN ALCALA, Appellant,
v.
EDINBURG CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellee.

          On appeal from the 92nd District Court of Hidalgo County, Texas.

          Before Contreras, Longoria, and Hinojosa Justices

          MEMORANDUM OPINION

          NORA LONGORIA JUSTICE

         Appellant John Alcala[1] 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.

         I. BACKGROUND

         On 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.

         II. REQUIREMENTS OF A RESTRICTED APPEAL

         An 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).

         As to 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.

         As to 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 id.

         As to 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.

         With the first three requirements satisfied, we turn to the final requirement, whether error appears on the face of the record. See id.

         A. Error on the Face of the Record

         Appellant argues that error is apparent on the face of the record because the record indicates that he was ...


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