WILLIAM R. HICKEY, Appellant
VANDERBILT MORTGAGE AND FINANCE, INC., Appellee
Appeal from the 35th District Court Brown County, Texas Trial
Court Cause No. CV1709388.
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
M. BAILEY CHIEF JUSTICE.
an appeal from a no-answer default judgment. Appearing pro
se, William R. Hickey appeals the denial of his motion to set
aside a default judgment entered against him. In a single
issue on appeal, Appellant contends that the trial court
erred when it denied his motion to set aside the default
judgment. We affirm the judgment of the trial court.
September 26, 2017, Appellee, Vanderbilt Mortgage and
Finance, Inc., filed an original petition to foreclose on its
interest in Appellant's manufactured home after Appellant
defaulted on a retail installment contract concerning the
purchase of that home. A process server, Louis C. Starzel,
made numerous attempts to serve Appellant but was
unsuccessful. Appellee subsequently filed a motion for
substituted service pursuant to Texas Rule of Civil Procedure
106. Appellee attached to the motion an "Affidavit of
Due Diligence" executed by Starzel. In the affidavit,
Starzel stated that he attempted to serve Appellant numerous
times at Appellant's home but that he was unable to
access the property. Starzel also stated that he received a
telephone call from a man claiming to be Appellant who stated
that Starzel left his card on the wrong gate and that
Appellant would only accept service for his bankruptcy
trial court granted Appellee's motion for substituted
service by authorizing citation "by posting to the front
door or entry gate at [Appellant's] usual place of abode:
7820 CR 327, Blanket, TX 76432." Appellee subsequently
filed a return of service consisting of an affidavit from
Starzel entitled "Proof of Service," which
indicated that he served citation by posting it on
Appellant's gate at 7820 CR 327, Blanket, Texas 76432.
Appellant did not file an answer. Appellee then filed a
motion for entry of default judgment. The trial court
subsequently entered a default judgment against Appellant on
January 18, 2018.
February 7, 2018, Appellant filed a motion to set aside the
default judgment, asserting that it should be set aside
because (1) he did not receive service and (2) he had a
meritorious defense. The trial court conducted a hearing on
the motion to set aside the default judgment. Appellant
acknowledged at the hearing that he placed a call to Starzel
as described in Starzel's affidavit. Appellant stated
that he told Starzel that Starzel would have to "walk
across the pasture to [Appellant's] house" if
Starzel wanted to serve Appellant. Appellant attributed
Starzel's failure to come to the house on
"laziness." The trial court denied Appellant's
motion to set aside the default judgment.
sole issue, Appellant contends that the trial court erred
when it denied his motion to set aside the default judgment.
We note at the outset that Appellant makes several additional
arguments in his brief that are not amenable to resolution in
this appeal. For example, Appellant has attached several
documents and photographs to his briefs that were never
presented to the trial court. The appellate record consists
of the clerk's record and, if necessary, a reporter's
record. Tex.R.App.P. 34.1. Attaching documents to briefs as
exhibits or appendices does not make them part of the
appellate record. Robb v. Horizon Cmtys. Improvement
Ass'n, 417 S.W.3d 585, 589 (Tex. App.-El Paso 2013,
no pet.). An appellate court is required to consider a case
solely on the appellate record, and it cannot consider
documents attached to briefs as exhibits or appendices.
Id.; Cherqui v. Westheimer St. Festival
Corp., 116 S.W.3d 337, 342 (Tex. App.-Houston [14th
Dist.] 2003, no pet.); Brown v. McGonagill, 940
S.W.2d 178, 179 (Tex. App.-San Antonio 1996, no writ).
Appellant argues that the default judgment violated many of
his constitutional rights. He also makes several complaints
about the trial court and opposing counsel. However,
Appellant did not present these arguments to the trial court.
Rule 33.1 of the Texas Rules of Appellate Procedure requires
that a party lodge a "timely request, objection, or
motion" to preserve a complaint for appellate review.
Tex.R.App.P. 33.1(a)(1); Wal-Mart Stores, Inc. v.
McKenzie, 997 S.W.2d 278, 280 (Tex. 1999). Appellate
courts are not authorized to consider issues not properly
raised by parties at the trial court level. Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).
Complaints cannot be raised for the first time on appeal, as
Appellant attempts to do here. See State Office of Risk
Mgmt. v. Martinez, 539 S.W.3d 266, 273 (Tex. 2017);
Tex. Dep't of Protective & Regulatory Servs. v.
Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (constitutional
claim on appeal was waived by failure to raise complaint at
no-answer default judgment is properly granted if (1) the
plaintiff files a petition that states a cause of action and
invokes the trial court's jurisdiction, (2) the petition
gives fair notice to the defendant, and (3) the petition does
not disclose any invalidity of the claim on its face.
Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d
491, 494 (Tex. 1988). A no-answer default results in the
defaulting defendant's admission of all facts properly
pleaded in the petition (except for the amount of
unliquidated damages). Dolgencorp of Tex., Inc. v.
Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam).
Thus, if the facts set out in the petition allege a cause of
action, the default judgment conclusively establishes the
defendant's liability. Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 731 (Tex. 1984).
primarily contends that he was not properly served. Strict
compliance with the procedural rules governing citation and
return of service must affirmatively appear on the record if
a default judgment is to withstand direct attack. Primate
Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)
(per curiam); see also Tex. R. Civ. P. 99, 103, 105,
106, 107. When reviewing a default judgment, we make no
presumptions in favor of valid issuance, service, and return
of citation. Primate Constr., 884 S.W.2d at 152.
Whether service strictly complied with the rules is a
question of law that we review de novo. Furst v.
Smith, 176 S.W.3d 864, 868-70 (Tex. App.-Houston [1st
Dist.] 2005, no pet.).
previously noted, Appellee filed a motion for substituted
service after several failed attempts at serving Appellant in
person. Appellant appears to be asserting that the failure to
personally serve him results in a lack of proper service. In
advancing this argument, Appellant appears to be ...