Solis v. Garcia

• Decision Date: 31 October 1985
• Docket Number: No. C14-85-279-CV,C14-85-279-CV
• Citation: 702 S.W.2d 668
• Parties: Lamberto SOLIS, Appellant, v. Jose GARCIA, et al, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 668

702 S.W.2d 668

Lamberto SOLIS, Appellant, v. Jose GARCIA, et al, Appellees.

No. C14-85-279-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Oct. 31, 1985.

Rehearing Denied Nov. 27, 1985.

James L. Ware, Otto D. Hewitt, III, of McLeod, Alexander, Powell, & Apffel, Houston, for appellant.

Frank T. Carmona, of Martin, Cruse, Garza & Bunce, Houston, for appellees.

Before JUNELL, ROBERTSON and CANNON, JJ.

OPINION

CANNON, Justice.

Lamberto Solis appeals by writ of error from default judgment in a suit under the Wrongful Death Statute, TEX.REV.CIV.STAT.ANN. art. 4671 (Vernon Supp.1985), brought by Jose and Sylvia Garcia for the death of their son. Appellant complains that the trial court erred in entering default judgment because service and return of service were improper, the local rules of court prohibited the Family District Court from entering default judgment, default judgment was rendered before the answer date, and there is no evidence or alternatively, insufficient evidence to support the damage award of $154,481. We find that the trial court erred in assessing damages and reverse and remand for a new trial of damages only.

Appellant complains in his first four points of error that service of process was invalid. Appellant alleges the return of service is defective both in the appellant's name and the date of receipt of service. Appellant asserts that some of the letters and numbers in the name and the date on the return are illegible and can be read as being incorrect. Similar facts were presented to the court in Popkowsi v. Gramza, 671 S.W.2d 915, 918 (Tex.App.--Houston [1st Dist.] 1984, no writ). That court noted that the line of Texas authority holding that a mistake in the defendant's name on the citation requires reversal of a default judgment did not involve the determination of whether a symbol in the citation was one letter or another. Because there were no findings of fact or conclusions of law, the court presumed that the disputed letter was correct. We have carefully examined the citation in this case and conclude that citation can reasonably be construed as correct. Because there were no findings of fact and conclusions of law we presume that the trial court found in support of the judgment that the citation was correct.

Appellant also asserts that his copy of the citation did not have the date of delivery endorsed thereon as required by Rule 106(a)(1) of the Texas Rules of Civil Procedure. Appellant's proof of this allegation is his affidavit which was filed with his petition for writ of error. In a writ of error appeal the error must be apparent from the face of the record. Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 392 (Tex.1982). The affidavit which was not filed with the trial court is not part of the face of the record and cannot be considered as a basis for reversal. Tankard-Smith, Inc. General Contractors v. Thursby, 663 S.W.2d 473 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.); TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706 (Tex.App.--Fort Worth 1982, no writ). Because no error in the service of appellant is apparent from the face of the record the first four points of error are overruled.

Appellant contends in his fifth point of error that the Local Rules of the Galveston County District Courts prohibited the trial court, the 306th Family District Court, from rendering default judgments in non-domestic matters. Rule I(d) provides: "each District Judge, except the Family District Judge, shall be presiding judge...." Rule I(d)(3) states that the duties of the presiding judge shall include hearing uncontested civil cases and default judgments. Rule I(h) states: "All suits authorized under the Family Code shall be filed in the 306th Family District Court." These rules do not prohibit the judge of the 306th District Court from entering default judgments. They simply assign that responsibility to the other district courts.

Furthermore, TEX.REV.CIV.STAT.ANN. art. 200b § 2 (Vernon Supp.1985) grants the judges of district courts authority to hear and determine any matter pending in any other of the courts having district court jurisdiction, whether the matter is preliminary, or final, or after judgment in the matter. A district court judge may sign any judgment or order in any of the courts. This section grants the judge of the 306th District Court authority to enter default judgments. Section 3(b) of Article 200b prohibits judges from making rules of practice and procedure in the courts inconsistent with the statutes of this State. If the Local Rules were interpreted to prohibit the 306th District Court from entering default judgment in non-domestic suits, then the Local Rules would violate Section 3(b). Point of error five is overruled.

Appellant contends in his sixth point of error that default judgment was rendered before his answer was due. TEX.R.CIV.P. 101 provides that a defendant's written answer shall be filed "at or before 10 o'clock a.m. of the Monday next after expiration of twenty days after the date of service." Appellant was served on January 28. The twenty-day period expired on Sunday, February 17. The next Monday was February 18, a legal holiday. TEX.R.CIV.P. 4 extended the answer date to Tuesday, February 19. The default judgment was properly rendered after 11 o'clock a.m. on February 19.

Appellant argues that Rule 4 extended the 20 day period to Monday, February 18 and that the next Monday and answer date was Monday, February 25. For the reasons stated by the court in Proctor v. Green, 673 S.W.2d 390, 392 (Tex.App.--Houston [1st Dist.] 1984, no writ) we hold that Rule 4 does not apply to extend the twenty day period of Rule 101. Point of error six is overruled.

Appellant contends in point of error seven that there is no evidence, or alternatively, insufficient evidence to support the damage award of $154,481. Appellees pled for damages for (1) pecuniary loss; (2) loss of the parent-child relationship (i.e. companionship); (3) mental anguish, past and future; and (4) burial expenses of $4,481. Although he did not plead for it, counsel for appellees orally requested at trial damages for the pain and suffering of appellees' son. Appellees requested judgment for damages of $154,481 as reasonable compensation for all the elements of damages stated above. The trial court granted judgment for the exact amount requested without specifying what portion of the amount was allocated to each category of damages. The fact that the trial court awarded exactly what appellees requested strongly implies that the trial court awarded some amount for...