Court of Appeals of Texas, Seventh District, Amarillo
CHESTER T. CARTHEL D/B/A CARTHEL ENGINEERING SOLUTIONS, APPELLANT
ROBERT AND LINDA NEIDERT, APPELLEES
Appeal from the 99th District Court Lubbock County, Texas
Trial Court No. 2017-526, 408; Honorable William C. Sowder,
PIRTLE and PARKER and SCHAAP  , JJ.
PATRICK A. PIRTLE JUSTICE
a restricted appeal from a no-answer default judgment
rendered in favor of Appellees, Robert and Linda Neidert, and
against Appellant, Chester T. Carthel d/b/a Carthel
Engineering Solutions. Carthel argues reversible error is
apparent on the face of the record because the Neiderts
failed to comply with the "certificate of merit"
requirement of Civil Practice and Remedies Code section
150.002(a). See Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002 (a) (West Supp. 2019) (requiring the complaint
in any dispute arising out of the provision of services by a
licensed or registered professional to file a
"third-party affidavit" setting forth the theory of
recovery and factual basis for each claim).Because we find
the entry of a default judgment in this case to be error
apparent on the face of the record, we sustain two of
Carthel's appellate issues and reverse the judgment of
the trial court.
2011, the Neiderts sought to purchase a residence in Lubbock.
While moving toward that end, their home inspector noted the
presence of cracks in the foundation and recommended a
further inspection by a qualified professional. The
Neiderts' realtor retained Carthel to perform a
structural evaluation. In communications with the
Neiderts' realtor, Carthel attributed most of the cracks
in the structure found by the home inspector to severe cold
weather and extended summer heat. According to the testimony
given by Robert Neidert, Carthel believed the cracks were
"seasonal" and, if repaired, would not reappear. As
such, Carthel did not find a foundation problem.
receiving Carthel's report,  the Neiderts purchased the
house. About a year to a year-and-a-half later, they noticed
the same cracks reappearing as well as some exterior cracks
not previously seen. They retained a different engineering
firm, which concluded in its August 25, 2016 report that the
Neiderts' house had "experienced settling of the
foundation system as evidenced throughout the exterior . . .
." The report further opined that the "nature of
these cracks . . . [were] typical of settling conditions at
the corners where larger roof and floor loads are
18, 2017, with the 2016 engineering report already in hand,
the Neiderts filed suit against Carthel seeking damages for
negligence, negligent misrepresentation, violations of the
Deceptive Trade Practices-Consumer Protection Act (DTPA), and
breach of contract. They did not, however, file a third-party
affidavit setting forth their theory of recovery or the
factual basis for each claim as required by section
the record does not contain proof that Carthel was properly
served with process, the parties do not dispute this
fact. It is likewise undisputed that Carthel did
not answer or otherwise appear in opposition to the
Neiderts' lawsuit. Although not shown by a separate
order, there is a record indication that on September 25,
2017, the trial court rendered a default judgment as to
liability against Carthel. On November 17, 2017, the trial
court conducted an evidentiary hearing for purposes of
offering proof of the Neiderts' unliquidated damages. A
final default judgment was then signed on November 27, 2017,
which awarded the Neiderts damages of $122, 636.20 and
attorney's fees of $5, 276.32. Carthel did not
participate in either hearing, nor did he participate in any
other proceedings, file any post-judgment motions, request
any findings of fact and conclusions of law, or timely file a
notice of appeal. Instead, on April 11, 2018, Carthel filed a
notice of restricted appeal.
restricted appeal provides a party that did not participate
at trial the opportunity to correct an erroneous judgment.
Richardson-Wiggins v. AH4R Props. Two, L.L.C., No.
02-15-00158-CV, 2016 Tex.App. LEXIS 1467, at *2 (Tex.
App.-Fort Worth Feb. 11, 2016, no pet.) (mem. op.). As such,
it is considered a direct attack on a default judgment.
Eguia v. Eguia, 367 S.W.3d 455, 458 (Tex.
App.-Corpus Christi 2012, no pet.). A party may prevail in a
restricted appeal only if the following conditions are
satisfied: (1) he has filed notice of the restricted appeal
within six months after the judgment was signed; (2) he was a
party to the underlying lawsuit; (3) he did not participate
in the hearing that resulted in the judgment complained of
and did not 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)
(citing Tex.R.App.P. 26.1(c), 30, and Quaestor Invs.,
Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.
1999) (per curiam)).
the first through third requirements of a restricted appeal
are satisfied without dispute. The focus of our analysis,
therefore, is whether reversible error is apparent on the
face of the record. DSC Fin. Corp. v. Moffitt, 815
S.W.2d 551, 551 (Tex. 1991) (per curiam). The "face of
the record" consists of the papers on file with the
trial court when it rendered judgment, including the
clerk's and reporter's records. See Miles v.
Peacock, 229 S.W.3d 384, 387 (Tex. App.-Houston [1st
Dist.] 2007, no pet.); Campsey v. Campsey, 111
S.W.3d 767, 771 (Tex. App.-Fort Worth 2003, no pet.). See
also Norman Communs v. Tex. Eastman Co., 955 S.W.2d 269,
270 (Tex. 1997) (per curiam) (applying former writ of error
procedure). Accordingly, an appellate court may not consider
evidence in a restricted appeal unless it was before the
trial court when judgment was rendered. Campsey, 111
S.W.3d at 771. Furthermore, "a restricted appeal
requires error that is apparent, not error that may
be inferred." Gold v. Gold, 145 S.W.3d
212, 213 (Tex. 2004) (per curiam) (emphasis in original).
150 of the Texas Civil Practice and Remedies Code pertains to
suits brought against certain licensed and registered
professionals, including a licensed professional engineer.
Tex. Civ. Prac. & Rem. Code Ann. §§
150.001-.004 (West Supp. 2019). "In every suit or
arbitration for damages arising out of the provision of
professional services by a licensed or registered
professional," the plaintiff must file the affidavit of
a third-party professional, called a "certificate of
merit," with its complaint setting forth each theory of
recovery and the factual basis of each claim. Id. at
§ 150.002(a), (b). A "'[l]icensed or registered
professional' means a licensed architect, licensed
professional engineer, registered professional land surveyor,
registered landscape architect, or any firm in which such
licensed or registered professional practices . . . ."
Id. at § 150.001(1-c). This chapter of the Code
further provides that the "defendant shall not be
required to file an answer to the complaint and affidavit
until 30 days after the filing of [the third-party]
affidavit." Id. at § ...