malcolm-westbrook-jerrold-d-westbrook-carol-ann-westbrook-curtis-donald ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-335 CV ______________________

MALCOLM WESTBROOK, JERROLD D. WEST BROOK, CAROL ANN WESTBROOK CURTIS, DONALD RAY WESTBROOK, CONNIE SUE WESTBROOK, WANDA WESTBROOK PRUITT, VIRGILE STIGFIELD, JULIE HADNOT, SHAWN HADNOT AND DORIAN HADNOT, Appellants

V.

ERNEST WESTBROOK, Appellee

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On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 26673

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  MEMORANDUM OPINION

This is an appeal from a default judgment entered in favor of Ernest Westbrook. ⁽¹⁾ Appellants argue they were not served with citation. We agree. We reverse the default judgment and remand the cause to the trial court for further proceedings.

Ernest Westbrook owns an undivided interest in certain real property located in Jasper County, Texas. On July 20, 2005, he filed a forced sale of property suit against the heirs of David Crockett, whom he alleged owned undivided interests in the same property. See Tex. Prop. Code Ann. § 29.002 (Vernon Supp. 2006). Ernest filed a petition to remove cloud from and to quiet title to real property, and sought a declaratory judgment that he owned the land by adverse possession. The only named defendant was Malcolm Westbrook. The sufficiency of the citation served on Malcolm is not at issue in this appeal. ⁽²⁾   With the petition, Ernest also filed a copy of a notice to the heirs of David Crockett published in March and April 2005 in The Jasper Newsboy in an attempt to comply with section 29.0035 of the Property Code. See Tex. Prop. Code Ann. § 29.0035 (Vernon Supp. 2006). In a forced sale suit brought against unknown defendants, a petitioner must publish a demand for reimbursement of ad valorem taxes prior to filing the petition. See id. In the publication, Ernest claimed to have paid the ad valorem taxes on the property for over five years; he requested that any heirs claiming an undivided interest in the property come forward to prove their heirship; and he sought reimbursement for the taxes he paid on the unknown defendants' undivided interests.

Shortly after the petition was filed, the trial court held a default judgment hearing and signed a judgment in favor of Ernest Westbrook. The judgment declared that Ernest obtained title to the property by adverse possession. The court ordered all defendants in the action to execute any documents necessary to clear the cloud on the title of the property and enjoined them from interfering with Ernest's title, use, and possession of the property.

Malcolm filed an answer to the petition before the default judgment was signed. The trial court entered an order that vacated the default judgment as to Malcolm. Approximately seven months after the default judgment, appellants filed a motion to set aside the judgment entirely. They claimed they had not been served with citation. The trial court denied appellants' motion.

The trial court severed Ernest's causes of action against Malcolm from the causes of action against the unknown heirs of David Crockett. The appellate timetable began to run when the severance was entered. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995). Although appellants filed the notice of appeal prematurely, we treat the notice as filed on the day the severance order was signed. See Tex. R. App. P. 27.1(a). Accordingly, appellants have properly perfected appeal by filing their notice within thirty days after a final judgment was signed. See Tex. R. App. P. 26.1.

Service of citation must strictly comply with the Rules of Civil Procedure to support a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985). A citation and valid return must appear among the papers in the record. Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex. App.--Amarillo 1992, no writ). If strict compliance is not shown, the service of process is invalid and of no effect. Uvalde Country Club, 690 S.W.2d at 885. We make no presumptions of valid issuance, service, or return of citation when examining a default judgment. Id.

Service of citation by publication in actions against unknown owners of interests in land must comply with certain requirements provided in the Texas Rules of Civil Procedure. A plaintiff must file with the clerk of court an affidavit stating "the name of the grantee as set out in the conveyance constituting source of title of defendants," and that plaintiff does not know the names of any persons claiming title or interest under the conveyance other than as stated in plaintiff's petition. Tex. R. Civ. P. 113. The citation shall contain the names of the parties, a brief statement of the nature of the suit, a description of any property involved and of the interest of the named or unknown defendant or defendants, and where the suit involves land, the requisites of Rule 115. Tex. R. Civ. P. 114, see also Tex. R. Civ. P. 115. The citation shall briefly state the claim by stating the kind of suit, the number of acres of land involved in the suit, or the number of the lot and block, "or any other plat description that may be of record if the land is situated in a city or town, the survey on which and the county in which the land is situated, and any special pleas which are relied upon in such suit." Tex. R. Civ. P. 115. When issued, the citation shall be served by the sheriff or any constable of any county or by the clerk of court in which the case is pending by having the citation published in a newspaper in the county where the land is located once each week for four consecutive weeks. Tex. R. Civ. P. 116. The first publication must be at least twenty-eight days before the return day of the citation. Id. "The return of the officer executing such citation shall be indorsed or attached to the same, and show how and when the citation was executed, specifying the dates of such publication, be signed by him officially and shall be accompanied by a printed copy of such publication." Tex. R. Civ. P. 117.

In this case, there is no indication in the record of any service by publication or otherwise on the appellants other than Malcolm Westbrook. Ernest did not file with the clerk of court an affidavit complying with Rule 113. See Tex. R. Civ. P. 113. The demand notice included with the original petition does not refer to the lawsuit because no pleading had been filed at the time of that publication. Section 29.0035 of the Property Code requires that the final demand notice by publication occur "not later than the 30th day before the date on which the petition is filed." Tex. Prop. Code Ann. § 29.0035. Publication of the demand notice to unknown defendants required by section 29.0035 is a requirement that must be met before the petition is filed. See id. §§ 29.003(2), 29.0035.

There is nothing in the record to indicate that service of citation was made on any of the appellants other than Malcolm. Therefore, the default judgment is not supported by service of process. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) ("In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance.").

Ernest argues that the notice of appeal was not timely filed because it was filed approximately one year after the default judgment was signed. He contends that because the trial court set aside the default judgment only as to Malcolm, the case against Malcolm was essentially severed from the suit against the remaining defendants. Accordingly, Ernest argues, the default judgment was final when originally entered. By vacating the default judgment in part, however, the trial court made the remainder of the default judgment interlocutory because it does not dispose of all claims and parties before the court. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001).

Ernest contends compliance with the Property Code's demand requirement should be considered sufficient service of citation by publication because he used the word "defendant" in the published demand. Publication of the pre-suit demand for reimbursement of ad valorem taxes pursuant to the Property Code is not service of process in a subsequent lawsuit. Ernest argues that even if the trial court made a "procedural error," such error was harmless because the judgment granted him what he would be entitled to "if the Appellants had presented their case in its entirety." Due process requires appellants be given notice of the pendency of the action filed against them and the opportunity to present their objections. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988). The lack of service of process is not harmless error. Ernest also argues appellants "lack standing to bring this appeal because they were never proper parties before the trial court." Ernest argues, "Appellants have proferred no evidence to illustrate heirship or that they own an interest in the property in question." Appellants were not made parties by service of process before a default judgment was entered against them. Whether they will be successful on the merits is not the issue in this appeal. Rather, the issue is appellants' entitlement to notice and an opportunity to be heard before judgment is entered against them. See id. Finally, appellee cites appellants' lack of compliance with Tex. R. Civ. P. 329, and argues appellants have failed to perfect appeal. Rule 329 is not applicable. The default judgment had not become final when appellants filed their appearance and motion. Furthermore, service of process by publication was never attempted in this case. See Wiebusch v. Wiebusch, 636 S.W.2d 540, 542 (Tex. App.--San Antonio 1982, no writ) (stating Rule 329 applies only when there has been a valid citation by publication).

Appellants' issue is sustained. We reverse the trial court's judgment and remand this cause for further proceedings.

REVERSED AND REMANDED.

____________________________

DAVID GAULTNEY

Justice

Submitted on October 19, 2006

Opinion Delivered January 11, 2007

Before McKeithen, C.J., Gaultney and Kreger, J.J.

1. Appellants are Jerrold D. Westbrook, Carol Ann Westbrook Curtis, Donald Ray Westbrook, Connie Sue Westbrook, Wanda Westbrook Pruitt, Virgil Strigfield, Julie Hadnot, Shawn Hadnot, and Dorian Hadnot. Virgile Stigfield's name is spelled differently in the Notice of Appeal and Answer.

2. Malcolm Westbrook is named in the Notice of Appeal. No issue is raised in the brief concerning service on Malcolm. He timely filed an answer before the default judgment was signed.