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Hickey v. Vanderbilt Mortgage and Finance, Inc.

Court of Appeals of Texas, Eleventh District

August 8, 2019


          On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CV1709388.

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [2]



         This is 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.

         Background Facts

         On 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 proceeding.

         The 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.

         On 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.


         In his 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).

         Additionally, 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 trial).

         A 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).

         Appellant 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.).

         As 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 ...

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