Laas v. Williamson

• Decision Date: 17 February 2005
• Docket Number: No. 09-04-141 CV.,09-04-141 CV.
• Citation: 156 S.W.3d 854
• Parties: David LAAS, Appellant, v. Betty WILLIAMSON, Appellee.
• Court: Texas Court of Appeals

156 S.W.3d 854

David LAAS, Appellant, v. Betty WILLIAMSON, Appellee.

No. 09-04-141 CV.

Court of Appeals of Texas, Beaumont.

Submitted January 25, 2005.

Delivered February 17, 2005.

Craig R. Lively, Harris, Lively, Duesler & Hatfield, LLP, Beaumont, for appellant.

Keith Ellis, Vidor, Richard J. Clarkson, Beaumont, for appellee.

Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

This is a restricted appeal in a personal injury case arising out of an automobile accident. The appellant, David Laas,¹ seeks to set aside a $1,090,795.74 default judgment based on defective service of process. We hold the return of citation filed of record is defective and cannot support a default judgment. Accordingly, we reverse and remand.

The accident occurred June 25, 2000, when Laas was sixteen years of age. Williamson filed suit on June 25, 2002. Citation issued the following day. The return of citation recites that the citation was served on Laas on August 21, 2002, by Ronald C. Guanere. The citation was filed on September 4, 2002, but it is unverified. Williamson took a default judgment on October 7, 2003. The judgment awards $4,798.37 in past medical expenses, with the remainder of the damages arising from future medical expenses, past and future pain and suffering, past and future physical impairment, past and future mental anguish, and exemplary damages. The notice of judgment issued October 8, 2003, but was returned undelivered on October 15, 2003. On November 25, 2003, Laas filed a motion to extend the post-judgment deadlines. See Tex.R. Civ. P. 306a(4). That motion alleged Laas did not receive actual notice of the judgment within twenty days. In an affidavit attached to his Rule 306a(4) motion, Laas averred that he received actual notice of the default judgment on November 21, 2003. Also attached to the motion is a letter from Williamson's counsel to Laas's insurer. The letter is dated November 10, 2003, notifies the insurance company that a default judgment has been taken in the case, and is copied to Laas's attorney.

The trial court conducted an evidentiary hearing on the Rule 306a(4) motion. Williamson claimed that Laas had actual notice of the judgment. She produced Laas's signature, dated October 8, 2003, on a notary page from Williamson's lawyer's office. The lawyer's claims manager, Charles Heider, testified that he telephoned Laas on October 7 or October 8 and asked Laas to come to the lawyer's office. Laas came into the office on October 8. Heider testified he learned that Laas had forwarded the served petition to his insurance company and prepared a statement for Laas to sign. The statement is undated, and states the following: "I, David Lass, [sic] was served on the 20th day of August, 2000, for an auto collision I caused on June 25, 2000. I forward [sic] the Original Petition and Citation of Service to my agent the following day." The claims manager did not recall having told Laas there was a judgment taken against him, and did not inform Laas that he had a right to consult with a lawyer; however, Williamson's counsel testified that he also spoke with Laas on October 8, and that he told Laas about the default judgment and suggested he see his insurance company. Heider and another witness, Jerry Gallier, testified that Laas returned to Williamson's counsel's office a second time. Gallier testified he refused to speak with Laas because Laas was holding a letter from a defense attorney.

During the Rule 306a(4) hearing, Laas testified that he was contacted by telephone in early October 2003 and was told that he needed to sign some papers "for this lady to sue the insurance company and not me." Laas admitted he came to the lawyer's office, but claimed no one informed him of the default judgment. Laas claimed Williamson's lawyer told him that "if I [Laas] signed these papers that this lady has to go after the insurance company and not me." Laas also claimed Williamson's lawyer told him that he did not need an attorney. Laas testified, "He said it was a default judgment, but he also said that it was for the lady to sue the insurance company and not me...." Laas also testified that he thought he was not supposed to get a lawyer and was not supposed to discuss the matter with anyone, and if he signed the document, he would be protected from the lawsuit. According to Laas, he first saw the judgment when defense counsel mailed it to him.

On December 3, 200, Williamson filed a motion for leave to file an amended return of citation. In her brief, Williamson claims an amended return was filed on December 3, 2003, although an amended return is not included in the appellate record. There is no indication in the record that the trial court acted on Williamson's motion for leave.

Williamson argues restricted appeal is not available to Laas because he discovered the default judgment in time to take a regular appeal. The cases on which she relies, Thacker v. Thacker, 496 S.W.2d 201, 204-05 (Tex.Civ.App.-Amarillo 1973, writ dism'd), and Hammond v. Hammond, 688 S.W.2d 690, 691-92 (Tex.App.-Beaumont 1985, writ dism'd), are writ of error cases in which the appellant participated at trial. An appellant filing a restricted appeal must appeal within six months after the judgment was signed, must be a party to the suit, and must not have participated in the hearing that resulted in the judgment. See Tex.R.App. P. 26.1(c), 30. On appeal, he must demonstrate that error appears on the face of the record. Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.1999). Laas filed no documents and attended no hearings before Williamson took her default judgment, and he filed notice of appeal five months and sixteen days after the judgment was signed. Thus, Laas may pursue a restricted appeal pursuant to Rule 30. The issue is whether error appears on the face of the record.

In his first issue, Laas contends the service of citation is defective and that the defect in service is error on the face of the record. Laas contends the evidence before the trial court at the time of the default judgment reflects that the return of citation was unverified, and that defective proof of service constitutes error apparent on the face of the record. "[S]trict compliance with the rules for service of citation [must] affirmatively appear on the record in order for a default judgment to withstand direct attack." Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). "There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment." Id. The rules of civil procedure allow for liberal amendment of the return of service to show the true facts of service, but "the one requesting service must amend the return prior to judgment." Id. at 153; see Tex.R. Civ. P. 118.

Williamson argues there is no error on the face of the record because she corrected the return of service. The corrected return is included in the appendix to her brief but is not contained in the clerk's record. Even if it were, it cannot be considered on appeal because it was on file with the trial court no earlier than December 3, 2003. Review by restricted appeal affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (writ of error appeal). Evidence not before the trial court prior to final judgment is beyond the scope of review and may not be considered. See General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 944 (Tex.1991) (writ of error appeal). Thus, in a restricted appeal the "face of the record" consists of all documents on file with the trial court at the time of judgment. Armendariz v. Barragan, 143 S.W.3d 853, 854 (Tex.App.-El Paso 2004, no pet.). While the face of the record includes the reporter's record of the default hearing, it does not include documents placed in the record after judgment. Stankiewicz v. Oca, 991 S.W.2d 308, 311-12 (Tex.App.-Fort Worth 1999, no pet.) (return label affixed to envelope returned to trial court after judgment); Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 73 (Tex.App.-Waco 1997, writ denied) (affidavit explaining usual procedures for service of process).² Williamson did not amend the return of service before judgment; therefore, the purported amendment did not cure the alleged defect.

Williamson relies upon Dawson v. Briggs, 107 S.W.3d 739, 744-45 (Tex.App.-Fort Worth 2003, no pet.). Dawson rejected as dicta the statement that the citation must be amended prior to judgment. Id. at 746-47. Dawson reasoned the statement in Primate conflicts with Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695, 697 (Tex.1990), which held that the trial court effectively granted a Rule 118 motion to amend the return in the course of considering a timely filed motion for new trial. Higginbotham distinguished regular appeals from what is now a restricted appeal, as follows:

Most of these opinions addressing the requirement that the record show strict compliance are writ of...