BALTAZAR MARTELL A/K/A BALTAZAR MARTELL-GUEVARA D/B/A MARTELL CONCRETE DELIVERY, Appellant
TEXAS CONCRETE ENTERPRISE READYMIX, INC., Appellee
Appeal from the 125th District Court Harris County, Texas
Trial Court Cause No. 2018-00163
consists of Justices Christopher, Spain, and Poissant.
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
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.
process server John F. Bowman served Martell and wrote by
hand the underlined portions of the return of service as
Came to hand at 4:07 o'clock P.M., on
the 5th day of January, 2018.
Executed at [address] 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.
verified the return before a notary public on January 27,
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.
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