Opinion
No. 04-17-00112-CV
06-20-2018
GARY BEAVERS CONSTRUCTION, Gary W. Beavers, and Amy Beavers, Appellants v. Robert W. SKLOSS and Jaclyn H. NGUYEN, Appellees
MEMORANDUM OPINION
From the 452nd District Court, Edwards County, Texas
Trial Court No. 4048
Honorable Robert Hoffman, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice REVERSED AND REMANDED
This is a restricted appeal in which appellants, Gary Beavers Construction ("Beavers Construction"), Gary W. Beavers, and Amy Beavers, challenge a default judgment rendered against them and in favor of appellees, Robert W. Skloss and Jaclyn H. Nguyen. On appeal, appellants contend error exists on the face of the record because: (1) the record fails to affirmatively show strict compliance with the rules of civil procedure governing citations and returns; (2) the petition does not show a good cause of action upon which a default judgment could be entered; (3) the default judgment awards damages in excess of the damages specifically pled; and (4) the evidence is legally insufficient to support the damages awarded. Because we agree error exists on the face of the record, we reverse the trial court's judgment and remand the cause for further proceedings.
BACKGROUND
In January of 2014, Skloss and Nguyen entered into a contract with Beavers Construction to build a custom home. Under the terms of the contract, Skloss and Nguyen agreed to pay Beavers Construction for the cost of the construction project, plus fifteen percent of such cost. The construction project was budgeted for $499,545.00, inclusive of the fifteen percent.
According to Skloss and Nguyen, Beavers Construction exhausted the home's budget one year into the project and abandoned the project. Skloss and Nguyen ultimately sued Beavers Construction and its owners, Amy and Gary Beavers (collectively, "the Beavers,"), outlining a number of projects they alleged Beavers Construction failed to complete and arguing that they were unable to secure permanent financing as a result of Beavers Construction's failure to substantially complete the home. Based on these allegations, Skloss and Nguyen brought causes of action for breach of contract, negligence, violations of the Texas Deceptive Trade Practices Act ("DTPA"), violations of the Texas Trust Fund Statute, and fraud. Skloss and Nguyen also sought to recover actual damages, punitive damages, and attorney's fees. Copies of the returns show that a private process server personally served Beavers Construction and the Beavers with a copy of the citation and original petition on June 3, 2016.
After Beavers Construction and the Beavers failed to file an answer, Skloss and Nguyen filed a motion for default judgment. In support of their motion, Skloss and Nguyen attached an affidavit from their attorney, who testified they were entitled to recover reasonable attorney's fees in the amount of $15,000.00. Thereafter, the trial court held a hearing on the default judgment motion. At the hearing, neither Beavers Construction nor the Beavers appeared, and the trial court heard testimony from Skloss regarding the claims. Copies of the parties' contract and the DTPA notice letter were admitted into evidence. Attached to the DTPA notice letter was an itemized spreadsheet, detailing each construction item, amount of payment requested by Beavers Construction, amount paid by Skloss and Nguyen, and any comments Skloss had about the item. The trial court ultimately rendered default judgment in favor of Skloss and Nguyen and awarded them the full amount of damages requested in their motion. Within six months, Beavers Construction and the Beavers filed this restricted appeal.
ANALYSIS
On appeal, Beavers Construction and the Beavers argue the trial court's default judgment should be set aside because error exists on the face of the record. According to the Beavers, error exists on the face of the record because: (1) the record fails to affirmatively show strict compliance with the rules of civil procedure governing citations and returns; (2) the petition does not show a good cause of action upon which a default judgment could be entered; (3) the default judgment awards damages in excess of the damages specifically pled; and (4) the evidence was legally insufficient to support the damages.
Restricted Appeal
To obtain reversal of an underlying judgment by restricted appeal, an appellant must establish that (1) he 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 or conclusions of law; and (4) any error is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Each element is mandatory and jurisdictional. Ibarra v. City of Laredo, No. 04-11- 00035-CV, 2012 WL 3025709, *4 (Tex. App.—San Antonio July 25, 2012, pet. denied) (mem. op.) (citing Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.—San Antonio 1995, no writ)).
The parties do not dispute that Beavers Construction and the Beavers satisfied the first three jurisdictional elements of a restricted appeal. Only the fourth element — error apparent on the face of the record — is at issue in this case. For the purposes of a restricted appeal, the face of the record comprises the clerk's record, the reporter's record, as well as any other evidence otherwise produced by the parties to the trial court before the final judgment. See Norman Commc'n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Schoendienst v. Haug, 399 S.W.3d 313, 316 (Tex. App.—Austin 2013, no pet.). For the fourth element to be satisfied, error must be apparent on the face of the record as opposed to inferred. See Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004).
Compliance with Texas Rules of Civil Procedure
As indicated above, Beavers Construction and the Beavers contend error exists on the face of the record because the record fails to affirmatively show strict compliance with the Texas Rules of Civil Procedure governing the citations and returns. Specifically, Beavers Construction and the Beavers contend: (1) the citations are not styled "The State of Texas" in violation of Rules 15 and 99(b)(1); (2) the returns fail to set forth the address where the defendant is served, violating Rule 107(b)(6); (3) the returns do not include the name of the person who served or attempted to serve process in violation of Rule 107(b)(9); and (4) the returns were not verified or signed under penalty of perjury as required by Rule 107(e). Because the argument that the returns were not verified or signed under penalty of perjury as required by Rule 107(e) is dispositive, we begin our analysis here.
Applicable Law
"Service of citation must be in strict compliance with the rules of civil procedure to establish jurisdiction over a defendant and support a default judgment." Williams v. Williams, 150 S.W.3d 436, 443 (Tex. App.—Austin 2004, pet. denied) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)). There is no presumption in favor of proper issuance, service, and return of citation. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. 2006) (per curiam); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); Gillmore v. Gbenjen, No. 02-17-00015-CV, 2017 WL 4683832, at *1 (Tex. App.—Fort Worth Oct. 19, 2017, no pet.) (mem. op.). If the record fails to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, there is error apparent on the face of the record and attempted service of process is invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); Gillmore, 2017 WL 4683832, at *1. When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Lytle, 261 S.W.3d at 840. Whether service strictly complies with the rules of civil procedure is a question of law we review de novo. Furst v. Smith, 176 S.W.3d 864, 869-70 (Tex. App.-Houston [1st Dist.] 2005, no pet.).
Rule 107
According to Beavers Construction and the Beavers, the returns fail to strictly comply with Rule 107(e) because they are not verified or signed under penalty of perjury. In response, Skloss and Nguyen argue the returns are signed by a deputy, who is a peace officer, and a peace officer's signature is not required to be verified or signed under penalty of perjury.
Rule 107(b)(e) states, in relevant part:
The officer or authorized person who serves or attempts to serve a citation must sign the return. If the return is signed by a person other
than a sheriff, constable, or the clerk of the court, the return must either be verified or be signed under penalty of perjury.TEX. R. CIV. P. 107(b)(e). For a signature to be verified, it must be acknowledged before a notary public. Gillmore, 2017 WL 4683832, at *2; Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.—Texarkana 2004, no pet.) (stating that "verified" under Rule 107 requires "some sort of an acknowledgment before a notary public"); Armendariz v. Barragan, 143 S.W.3d 853, 855 (Tex. App.—El Paso 2004, no pet.) (same); Carmona v. Bunzl Distrib., 76 S.W.3d 566, 569 (Tex. App.—Corpus Christi 2002, no pet.) (same). For a signature to be signed under penalty of perjury, Rule 107 provides a sample of a statement a return must contain, indicating the statement should be in substantially the same form as the sample. TEX. R. CIV. P. 107(b)(e).
Here, the returns are signed by a private process server — John V. Martinez. Under his signature, Martinez includes his private process server certification number and the expiration date of his certification. See MASTER LIST: PRIVATE PROCESS SERVERS CERTIFIED BY THE SUPREME COURT OF TEXAS, http://www.txcourts.gov/media/709663/List_of_Servers_111714.WEB.pdf. Nothing in record indicates Martinez is a "sheriff, constable, or the clerk of the court" as required under Rule 107. See TEX. R. CIV. P. 107(b)(e). Therefore, to comply with Rule 107, the returns were required to be either verified or signed under penalty of perjury, and neither was done. See id.
Skloss and Nguyen argue that Martinez's signature does not have to be verified or signed under penalty of perjury because Martinez signed in the line designated for a deputy, and therefore, he is a peace officer. For support, Skloss and Nguyen cite Myan Mgmt. Grp., L.L.C. v. Adam Sparks Family Revocable Tr., 292 S.W.3d 750, 752 (Tex. App.—Dallas 2009, no pet.), which held the deputy's signature was not required to be verified. The version of Rule 107 in effect at the time that case was decided, however, provided that a return shall be "signed by the officer officially or the authorized person;" the rule further specified that "[a] return of citation by an authorized person shall be verified." Id. at 752. The court pointed out that the version of Rule 107 in effect at that time "[did] not require an officer to verify the return," holding an officer, such as a deputy, was not required to verify the return. Id. at 752-53.
Rule 107, however, was amended on December 12, 2011, and the new rule became effective January 1, 2012. Rule 107 now provides that, "If the return is signed by a person other than a sheriff, constable, or the clerk of the court, the return must either be verified or be signed under penalty of perjury." TEX. R. CIV. P. 107(b)(e) (emphasis added). In this case, there is no indication Martinez signed the returns as a deputy other than his decision to sign his name on the line designated for a "Deputy" as opposed to the line designated for a "Sheriff/Constable." Instead, in signing the returns, Martinez establishes he was signing the returns in his capacity as a private process server by affixing his private process server certification number and the expiration date of his certification. Thus, because Martinez did not sign the returns as a "sheriff, constable, or the clerk of the court," his signature was required to be verified or signed under penalty of perjury, and it was not. See TEX. R. CIV. P. 107(b)(e); Gillmore, 2017 WL 4683832, at *2 (holding return was required to be verified or signed under penalty of perjury because signed by private process server, who is person other than "sheriff, constable, or the clerk of the court").
Accordingly, we hold that because the returns did not strictly comply with Rule 107, error is apparent on the face of the record and service upon Beavers Construction and the Beavers was invalid. See Uvalde Country Club, 690 S.W.2d at 885; Lytle, 261 S.W.3d at 840. The trial court therefore did not acquire personal jurisdiction over Beavers Construction and the Beavers, and the default judgment is void. See Lytle, 261 S.W.3d at 840. We therefore sustain Beavers Construction and the Beavers' contention that the returns did not strictly comply with Rule 107(b)(e), and we need not discuss their other arguments regarding error on the face of the record.
CONCLUSION
Because service was defective, we reverse the judgment of the trial court and remand the cause for further proceedings.
Marialyn Barnard, Justice