Dawson v. Briggs

• Decision Date: 01 May 2003
• Docket Number: No. 2-02-200-CV.,2-02-200-CV.
• Citation: 107 S.W.3d 739
• Parties: Kelly Renee DAWSON, Appellant, v. Carla K. BRIGGS, Appellee.
• Court: Texas Court of Appeals

Page 739

107 S.W.3d 739

Kelly Renee DAWSON, Appellant, v. Carla K. BRIGGS, Appellee.

No. 2-02-200-CV.

Court of Appeals of Texas, Fort Worth.

May 1, 2003.

COPYRIGHT MATERIAL OMITTED

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Godwin Gruber, P.C., and Julia F. Pendery, Chad M. Ruback, Dallas, for Appellant.

Gardner, Aldrich & Murphy, L.L.P., and Robert E. Aldrich, Jr., and John F. Murphy, Fort Worth, for Appellee.

PANEL B: DAY, LIVINGSTON, and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Kelly Renee Dawson appeals a $233,515.62 default judgment entered against her. In two issues, she claims that the trial court lacked jurisdiction to enter a postjudgment order granting an amendment to the return of citation and that the evidence offered at the default hearing was legally and factually insufficient to support the damage award. We will affirm in part and reverse and remand in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

Dawson and Appellee Carla Briggs were involved in a car accident. Dawson's car ran into the back of Briggs's car. Dawson's insurance carrier paid only for Briggs's property damage. Briggs sued Dawson, seeking to also recover personal injury damages she suffered as a result of the accident.

A private process server delivered a citation and Briggs's lawsuit to Dawson on April 4, 2001. The return of citation indicates that the citation and Briggs's original petition were personally served on Dawson at 4:40 p.m. at the Falls Apartments, 9001 South Normandale Street in Fort Worth, Tarrant County, Texas, at her apartment, apartment 2056. The private process server signed the return of citation, but his signature was not verified. Dawson did not file an answer to Briggs's suit.

On March 15, 2002, the trial court conducted a default judgment prove-up hearing. On the same day, following the hearing, the trial court signed a judgment for Briggs in the amount of $233,515.62 plus prejudgment interest.

Dawson timely filed a motion for new trial, pointing out that the private process server's signature on the return of citation was not verified. Dawson claimed that, because of this procedural defect, the trial court lacked personal jurisdiction over Dawson and argued that the default judgment should be set aside. Dawson did not deny that she was served as reflected in the return.

After Dawson filed her motion for new trial, Briggs filed a motion to amend the return of citation. Briggs requested that the trial court enter an order allowing the amendment of the return by adding the verification of the process server's signature. The trial court conducted a hearing, and at the conclusion of the hearing, verbally denied Dawson's motion for new trial and verbally granted Briggs's motion to amend the return of citation. On June 7, 2002, Dawson filed a notice of appeal. On June 17, 2002, the trial court signed a written order granting Briggs's motion to amend the return. The trial court never signed a written order denying Dawson's motion for new trial.

III. TRIAL COURT'S JURISDICTION

In her first issue, Dawson claims that the trial court lacked jurisdiction to order the return of citation amended. Specifically, Dawson raises the following issue:

Issue Number One

There are no presumptions of valid service in a default judgment case. The private process server's return of citation was not verified. The trial court's order allowing amendment of the defective citation was not signed until after the court of appeals acquired exclusive jurisdiction over the case. Was the trial court's late order void so that the unverified return mandates reversal of the default judgment?

The standard of review paragraph in Dawson's brief under this issue states, "The issue of whether the trial court had jurisdiction to amend the return of citation at the time the trial court signed the order purporting to do so is a question of law, subject to de novo review." The headings in Dawson's brief under issue one are: 1. The Standard of Review is De Novo; 2. There Are No Presumptions of Valid Service in a Default Judgment Case; 3. The Private Process Server's Return Had to Be Verified; 4. The Trial Court Lost Jurisdiction to Allow Amendment of the Return Once Dawson Perfected This Appeal; 5. Rule 329b Plenary Power Does Not Make the Trial Court's Late Order Valid; and 6. Rule 118 Will Not Rescue the Trial Court's Late Order. All of this is to explain that, giving Dawson's first issue a liberal construction, as we must, we perceive the sole issue presented to us by Dawson's first issue to be whether the trial court possessed jurisdiction to order the return of citation amended. See TEX. R.APP. P. 38.1(e), 38.9 (requiring a liberal construction of issues).

The issue of whether the trial court erred by initially granting a default judgment on an unverified private process server's return of service is not before us. The issue of whether the trial court erred by denying Dawson's motion for new trial raising the issue of the unverified private process server's return of service is not before us. The issue of whether the trial court abused its discretion by granting Briggs's motion to amend the return of citation is not before us. We will not address unassigned error. See, e.g., Am. Gen. Fire and Cas. Co. v. Weinberg, 639 S.W.2d 688, 689 (Tex.1982) (holding that the court of appeals erred by reversing the trial court's judgment on unassigned error); Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982) (same).

The issue before us is simply whether the trial court possessed jurisdiction to enter an order granting Briggs's motion to amend the return of citation. Dawson contends that we review this issue as a question of law under a de novo standard of review. We agree. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) (applying de novo standard to question of subject-matter jurisdiction); Michel v. Rocket Eng'g Corp., 45 S.W.3d 658, 667 (Tex.App.-Fort Worth 2001, no pet.) (holding that "[w]e review all questions of law de novo"). We now turn to that issue.

Rule 118 of the Texas Rules of Civil Procedure provides:

At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

TEX.R. CIV. P. 118 (emphasis added). The default judgment was entered on March 15, 2002. Dawson timely filed a motion for new trial on April 12, 2002. Because the trial court never signed a written order denying Dawson's motion for new trial, it was overruled by operation of law on May 29, 2002, the seventy-fifth day following the March 15, 2002 default judgment. See TEX.R. CIV. P. 329b(c). Thus, the trial court possessed plenary power over this case through June 28, 2002, the one-hundred-fifth day following the March 15, 2002 default judgment. See TEX.R. CIV. P. 329b(e); Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.1985) (recognizing that a timely filed motion for new trial may extend the trial court's plenary power through the one-hundred-fifth day following a final judgment). The trial court therefore possessed plenary power over the March 15, 2002 default judgment when it signed the June 17, 2002 order granting Briggs's motion to amend the return of citation.

Dawson concedes that the order granting Briggs's motion for amendment of the return of citation was signed during the trial court's period of plenary power. Nonetheless, Dawson contends that the trial court lacked jurisdiction to enter its June 17, 2002 order (a) because she filed a notice of appeal on June 7, 2002, vesting exclusive jurisdiction in this court and (b) because the trial court's plenary power is limited to the powers listed in rule 329b of the rules of procedure and those powers do not include the power to amend a return of citation. Briggs responds to Dawson's position by pointing out that the trial court verbally granted her motion to amend the citation on May 28, 2002, ten days before Dawson filed her notice of appeal. Briggs argues that the trial court clearly possessed jurisdiction to enter an order during its plenary power formalizing a ruling it made prior to Dawson's filing of her notice of appeal. Briggs also contends that once the trial court allowed amendment of the citation, the amendment related back to the date the original return was filed with the court so that the verified return is deemed to have been on file for nearly a year before the entry of the default judgment against Dawson.

We will first address the issue of whether Dawson's notice of appeal, invoking the jurisdiction of this court, deprived the trial court of jurisdiction to sign its June 17, 2002 order granting Briggs's motion to amend the return of citation. Dawson cites three cases: Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482 (Tex.1964); Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 889 (Tex.App.-Houston [14th Dist.] 2000, pet. dism'd w.o.j.); and Atkins v. Snyder, 597 S.W.2d 779, 782 (Tex.Civ. App.-Fort Worth 1980, no writ). These cases are not applicable to the present facts. Each of these cases simply holds that, following the perfection of an appeal, the trial court cannot enter an order that interferes with the appellate court's jurisdiction. Ammex Warehouse Co., 381 S.W.2d at 480 (explaining "[t]he Court of Civil Appeals considered this temporary order to be an interference with its jurisdiction of the case which had been invoked by giving notice of appeal from the final judgment"); Bridas Corp., 16 S.W.3d at 889 (holding that trial court possessed jurisdiction to issue anti-injunction relief following perfection of appeal because the trial court's order did not undermine or interfere with appellate court jurisdiction or modify the final judgment); Atkins, 597 S.W.2d at 781-82 (recognizing ...