Opinion
No. 04-04-00856-CV
Delivered and Filed: October 5, 2005.
Appeal from the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 292146, Honorable Philip A. Meyer, Judge Presiding.
Reversed and Remanded.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Platinum Warranty Corp. filed a notice of restricted appeal from the default judgment taken against it by Richard and Corine Cardenas. Because the proof of service in the clerk's record is defective, we reverse the trial court's judgment and remand the cause for trial on the merits or other proceedings consistent with this opinion.
Before addressing the merits of Platinum's appeal, we must first address the Cardenases' argument that Platinum has waived its right to proceed by a restricted appeal by failing to brief all the elements of a restricted appeal. We disagree. "[B]riefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case. . . ." Tex.R.App.P. 38.9. Accordingly, "substantial compliance" with Rule 38 is "sufficient" unless the brief "flagrantly violates" the rule or contains substantive defects that preclude proper presentation of the case. See id. Platinum's brief does neither; accordingly, this court neither required Platinum to amend, supplement, or redraw its brief nor postponed submission. See id. Unlike the briefs in the cases cited by the Cardenases, Platinum's brief contains substantive analysis, cites to pertinent legal authority, and discusses the documents in the record. We therefore reject the Cardenases' waiver argument and address the merits of Platinum's appeal.
"To prevail on its restricted appeal, [Platinum] must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment 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); see also Tex.R.App.P. 26.1 and 30. The record establishes that Platinum timely filed a notice of restricted appeal; was named as a defendant in the Cardenases' suit; did not participate in the default judgment hearing; and did not file any timely postjudgment motions. Platinum argues there is error on the face of the record because it does not contain a return of service complying with Rule 107 of the Texas Rules of Civil Procedure. We agree.
A default judgment will be set aside if the record does not affirmatively show strict compliance with the rules governing service of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam). The clerk's record includes a copy of the citation issued to Platinum; but it is does not have attached to it or endorsed on it a return of service. See Tex. R. Civ. P. 107 (stating requirement for return of service). Even a defective proof of service establishes error on the face of the record and requires us to set aside a default judgment. See Laas v. Williamson, 156 S.W.3d 854, 857 (Tex.App.-Beaumont 2005, no pet.); Verlander Enters., Inc. v. Graham, 932 S.W.2d 259, 262 (Tex.App.-El Paso 1996, no pet.); see also Tex. R. Civ. P. 107 ("No default judgment shall be granted in any cause until the citation . . . with proof of service as provided by this rule . . . shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment."). Certainly the same result is required when the clerk's record contains no proof of service. Accordingly, we reverse the trial court's judgment and remand the cause for trial on the merits or other proceedings consistent with this opinion.