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Martell v. Texas Concrete Enterprise Readymix, Inc.

Court of Appeals of Texas, Fourteenth District

January 7, 2020

BALTAZAR MARTELL A/K/A BALTAZAR MARTELL-GUEVARA D/B/A MARTELL CONCRETE DELIVERY, Appellant
v.
TEXAS CONCRETE ENTERPRISE READYMIX, INC., Appellee

          On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2018-00163

          Panel consists of Justices Christopher, Spain, and Poissant.

          OPINION

          Tracy Christopher Justice.

         In this restricted appeal of a no-answer default judgment, the return of service recites an impossible chronology in which the process server served the defendant in 2017 with a citation that the process server did not receive until 2018. The defendant, appellant Baltazar Martell, contends that this obvious mistake constitutes error apparent on the face of the record, which requires reversal. The plaintiff, appellee Texas Concrete Enterprise Readymix, Inc., counters that because this is such an obvious mistake, "2017" can be reasonably construed only as "2018." But the movant for default judgment bears the burden to ensure strict compliance with Texas Rule of Civil Procedure 107 governing the return of service. Texas Concrete should have seen the error, which is apparent on the face of the record, and amended the return before moving for default judgment. See Tex. R. Civ. P. 118. By allowing the return to stand uncorrected, Texas Concrete failed to meet its burden. We accordingly reverse the judgment and remand the case for further proceedings.

         I. Background

         Texas Concrete filed a suit on a sworn account against Baltazar Martell a/k/a Baltazar Martell-Guevara d/b/a Martell Concrete Delivery on January 2, 2018. The clerk of the court issued the citation the same day.

         Private process server John F. Bowman served Martell and wrote by hand the underlined portions of the return of service as follows:

Came to hand at 4:07 o'clock P.M., on the 5th day of January, 2018.
Executed at [address][1] in Harris County at 6:50 o'clock P.M., on the 26th day of January, 2017, by delivering to Baltazar Martell (AKA Baltazar Martell-Guevara DbA [sic] Martell Concrete Delivery) defendant, in person, a true copy of this Citation together with the accompanying 1 copy(ies) of the Petition Plaintiff's Original Petition /Suit on Sworn Account attached thereto and I endorsed on said copy of the Citation the date of delivery.
To certify which I affix my hand officially this 27th day of January 2018.

         Bowman verified the return before a notary public on January 27, 2018.

         Martell did not answer the suit or respond to the requests for disclosures and requests for admission included in the petition. In April 2018, Texas Concrete moved for default judgment based on the deemed admissions. The trial court granted the motion and awarded Texas Concrete its requested damages, attorneys' fees, interest, and costs. About four months later, Martell filed this restricted appeal and superseded the judgment.

         II. Governing Law

         To prevail in a restricted appeal, appellants are required to establish that (1) they filed notice of the restricted appeal within six months after the judgment was signed, (2) they were parties to the underlying lawsuit, (3) they did not participate in the hearing that resulted in the challenged judgment or timely file any post-judgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Authentic Brands Grp. LLC v. Porter, No. 14-16-00477-CV, 2017 WL 2960047, at *1 (Tex. App.-Houston [14th ...


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