Trudy Randall Rowsey v. Louis Michael Matetich ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00727-CV
Trudy Randall Rowsey, Appellant
v.
Louis Michael Matetich, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-08-000762, HONORABLE JON N. WISSER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Trudy Randall Rowsey brings a restricted appeal from a no-answer
default judgment rendered against her. The judgment declared that two agreements between her and
appellee Louis Michael Matetich failed for lack of consideration and were unenforceable and
awarded Matetich $15,000 in attorney’s fees. In four points of error, Rowsey argues that (1) the
district court lacked personal jurisdiction over her because the substituted service the court ordered
was defective, (2) the district court lacked subject-matter jurisdiction over the suit because the
probate court had jurisdiction, (3) the district clerk failed to give Rowsey notice of a modified
version of the default judgment, and (4) the district court erred as a matter of law by finding that the
two agreements at issue were unenforceable for lack of consideration. Because we find no error
apparent on the face of the record, we will affirm.
BACKGROUND
According to Matetich’s petition, Rowsey’s mother, Seareatha Matetich,
married Matetich in 1985.1 Seareatha died on February 18, 2006. Rowsey was the sole beneficiary
of Seareatha’s holographic will. The will was admitted to probate on May 24, 2006, and Rowsey
was appointed independent administrator of her estate.
About a month after Seareatha’s death, on March 27, 2006, Rowsey and Matetich
entered into two agreements, one entitled “Agreement Between the Parties Regarding the Estate of
Seareatha Carson Matetich” (“estate agreement”) and the other entitled “Agreement Between
the Parties” (“personal affairs agreement”). The estate agreement purported to constitute “all
agreements between the parties’ business affairs [sic],” while the personal affairs agreement
purported to constitute “all agreements made between the parties’ personal affairs [sic].”
Certain provisions of the estate agreement concerned the transfer of property that
had belonged to Seareatha. Matetich agreed to “transfer, deed, convey, and/or relinquish one-half
of all that is deemed community property in the laws of the state of Texas” to Rowsey, including all
real property. He also agreed that “ALL that was Seareatha Carson Matetich’s, in life (February 18,
2006), is now legally, rightfully, and exclusively Trudy Randall Rowsey’s, regardless of its location
on the planet.” Both parties agreed that “no changes can be made to/with any asset of the estate’s
real property or intellectual properties without the written consent of the other.”
Matetich and Seareatha owned two real properties located in New Zealand as
joint tenants with right of survivorship. Matetich alleges that based on one or both agreements,
1
For clarity, we will refer to Seareatha by her first name.
2
Rowsey filed a “Caveat against dealings with land under Land Transfer Act 1952” in New Zealand
on the two real properties, preventing Matetich from selling the properties. According to Matetich’s
New Zealand counsel, Matetich would be able to remove the caveat in New Zealand if he obtained
a judgment from a Texas court that the purported agreements are not valid contracts under
Texas law.
On March 4, 2008, Matetich sued Rowsey seeking a declaration that the
two agreements failed for lack of consideration. Matetich asserted alternative claims that the
agreements were unenforceable based on fraud in the inducement and material misrepresentation,
mutual mistake, and unconscionability. He also asserted a claim for tortious interference with the
sale of the New Zealand properties and sought actual damages, lost profits, exemplary damages, and
attorney’s fees. Matetich attached both agreements and the caveat to his petition.
After several failed attempts at serving Rowsey in person and by certified mail,
Matetich filed a motion for substituted service to which he attached three affidavits attesting to
Rowsey’s usual place of abode and two process servers’ efforts to serve Rowsey. The district court
granted the motion on April 24, 2008, and ordered that service could be made “by mailing a copy to
[Rowsey] via first class at: [Rowsey’s] usual place of abode: 203 Oxbow Trail, Marble Falls,
Texas 78654.” The executed service of citation was filed on April 28, 2008.
After service by mail, no answer had been filed by May 19, 2008. Matetich moved
for default judgment on May 20, 2008. The district court heard the motion and signed the judgment
that same day, declaring that the agreements “fail for lack of consideration and are unenforceable.”
3
The district court also awarded $15,000 in attorney’s fees to Matetich under section 37.009 of the
civil practice and remedies code.
Later that day, Matetich moved to modify the judgment because it incorrectly
stated that the date that the agreements were signed was March 27, 2008 instead of March 27, 2006.
The court granted the motion on the same day (May 20, 2008) and signed a judgment with the
correct 2006 date for the agreements. The modified judgment also was filed with the district clerk
on May 20, 2008.
On June 20, 2008, Rowsey filed an answer and counterclaim.2 Rowsey brought this
restricted appeal on November 20, 2008.3
ANALYSIS
A restricted appeal constitutes a direct attack on a default judgment. Tex. R. App.
P. 30; General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943
(Tex. 1991). As the party filing a restricted appeal, Rowsey must show that: (1) she brought the
appeal within six months after the trial court signed the judgment; (2) she was a party to the suit;
2
Rowsey also filed a motion for new trial that day. Matetich responded to the motion for
new trial asserting that the motion was not timely filed because the thirty-day deadline to file the
motion had expired on June 19, 2008. On appeal, Rowsey concedes that the motion for new trial
was not timely filed.
3
According to correspondence received by the Court from Rowsey’s counsel, Rowsey died
on February 25, 2009. Rowsey’s counsel requested extensions of time to file her appellant’s brief
to allow her estate time to determine whether to pursue the appeal. Rowsey’s appellant’s brief
was filed on January 6, 2010. We “will proceed to adjudicate the appeal as if all parties were alive.”
Tex. R. App. P. 7.1(a)(1). Rowsey’s appeal involves, at a minimum, $15,000 in attorney’s fees,
so her appeal is not mooted by her death. See Kenseth v. Dallas County, 126 S.W.3d 584, 593-94
(Tex. App.—Dallas 2004, pet. denied).
4
(3) she did not participate in the hearing that resulted in the complained-of judgment and did
not timely file any postjudgment motions or requests for findings of fact and conclusions of law;
and (4) error is apparent from the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander
v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the fourth element, whether error is
apparent from the face of the record, is in dispute here. The record, for purposes of a restricted
appeal, consists of the clerk’s record and the reporter’s record if one was made, and it includes
any evidence presented to the trial court before final judgment. See Norman Commc’ns v. Texas
Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); General Elec., 811 S.W.2d at 942, 944
(“The rule has long been that evidence not before the trial court prior to final judgment may not be
considered in a [restricted appeal] proceeding.”).
A plaintiff may take a default judgment against the defendant if the defendant has
not previously answered, as long as the citation and return of service have been on file with the clerk
for 10 days. Tex. R. Civ. P. 107, 239. A no-answer default judgment is properly granted if (1) the
plaintiff files a petition that states a cause of action, (2) the petition invokes the trial court’s
jurisdiction, (3) the petition gives fair notice to the defendant, and (4) the petition does not disclose
any invalidity of the claim on its face. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491,
494 (Tex. 1988). A no-answer default results in the defaulting defendant’s admission of all facts
properly pled in the petition (except for the amount of unliquidated damages). Dolgencorp of Tex.,
Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam). Thus, if the facts set out in the
petition allege a cause of action, the default judgment conclusively establishes the defendant’s
liability. Morgan v. Compugraphic Co., 675 S.W.2d 729, 731 (Tex. 1984). As a result, our review
5
is limited to determining whether Matetich’s petition discloses any invalidity of his claim; Rowsey
is precluded from challenging the legal and factual sufficiency of the evidence supporting her
liability. See Texaco, Inc. v. Phan, 137 S.W.3d 763, 770 (Tex. App.—Houston [1st Dist.] 2004,
no pet.) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Morgan,
675 S.W.2d at 731)).
In her first point of error, Rowsey challenges the district court’s jurisdiction over
her, asserting that the substituted service ordered by the district court was defective. In a restricted
appeal, defective service of process constitutes error on the face of the record. Primate Constr., Inc.
v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (per curiam). Strict compliance with the procedural rules
governing citation and return of service must affirmatively appear on the record if the default
judgment is to withstand direct attack. Id. at 152; see also Tex. R. Civ. P. 99, 103, 105, 106, 107.
When reviewing a default judgment, we make no presumptions in favor of valid issuance, service,
and return of citation. Primate Constr., 884 S.W.2d at 152. Whether service strictly complied
with the rules is a question of law that we review de novo. Furst v. Smith, 176 S.W.3d 864, 868-70
(Tex. App.—Houston [1st Dist.] 2005, no pet.).
Matetich filed a motion for substituted service after several failed attempts at serving
Rowsey in person and by certified mail. Rule 106(b) governs substituted service. Rule 106(b)
provides:
Upon motion supported by affidavit stating the location of the defendant’s usual
place of business or usual place of abode or other place where the defendant can
probably be found and stating specifically the facts showing that service has been
attempted under either (a)(1) [personal service] or (a)(2) [registered or certified mail]
6
at the location named in such affidavit but has not been successful, the court may
authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with
anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows
will be reasonably effective to give the defendant notice of the suit.
Tex. R. Civ. P. 106(b).
In support of his motion, Matetich attached three affidavits, his own and two
from process servers who had attempted to serve Rowsey. Matetich attested that Rowsey’s usual
place of abode was 203 Oxbow Trail, Marble Falls, Texas 78654, based on his personal knowledge.
One private process server, Jacklynn Gaye Malarkey, attested that she had attempted to serve
Rowsey personally at the same address on three different dates at different times of day (March 13,
2008 at 6:30 p.m.; March 15, 2008 at 9:00 a.m.; and March 17, 2008 at 7:45 p.m.). For each attempt,
she noted that the residence was gated and she could not gain access to it and that she honked her
horn and there was no movement. On her first attempt, she left a notice on the gate. She noted on
the second attempt that there were four trucks in the driveway, and on the third attempt, she noted
that there were five trucks in the driveway.
The other private process server, Mike Techow, attested that he had “attempted to
make personal delivery to [Rowsey] at his/her place of abode, being 203 Oxbow Trail, Marble Falls,
TX 78654, which was established personally in my efforts.” He also documented his attempt to
serve Rowsey via certified mail. He identified the certified mail receipt number, noted that “certified
has not come back after 2 attempts, notice has been left and documents have not been claimed,” and
7
attached a tracking receipt from the United States postal service dated April 17, 2008 for same
certified mail receipt number. The tracking receipt stated that notice had been left in “Marble Falls,
Texas 78654” by the postal service and that the item could be redelivered by the postal service or
picked up at the post office, and if not claimed, would be returned to sender. Techow attested that
on April 17, 2008, he “deemed it impractical to personally deliver the Citation, Plaintiff’s Original
Petition and Plaintiff’s Request for Disclosure” to Rowsey. He also stated that he believed Rowsey
“can and will be given notice of these proceedings by delivering to anyone over the age of sixteen
(16) at the defendant’s usual place of abode or work[,] by attaching the above listed documents to
the front entrance of the defendant’s usual place of abode or work, or by first class mail.”
In his motion for substituted service, Matetich sought to serve Rowsey either by
leaving the citation with a copy of the petition and order attached “with anyone 16 years of age or
older at the location specified in the attached affidavit, by posting a copy on [Rowsey’s] front door,
by mailing a copy to [Rowsey] via first class mail or by such other order of the Court as it deems
appropriate under the circumstances.” The district court granted the motion on April 24, 2008,
crossing out the other options and ordering that “service of citation may be made on Defendant,
Trudy Elizabeth Rowsey, by mailing a copy to [Rowsey] via first class at: [Rowsey’s] usual place
of abode: 203 Oxbow Trail, Marble Falls, Texas 78654.” The court accepted the facts in both
process servers’ affidavits as true and incorporated them into its order. The court also found that
both process servers exercised due diligence in their attempts to serve Rowsey and that “[t]he
manner of service ordered herein will be reasonably effective in giving [Rowsey] notice of the suit.”
8
The court further ordered that the person executing the return must make proof of service by “stating
when the citation was served, on whom it was served, and where it was served.”
Rowsey makes two arguments in support of her claim that the substituted service was
defective. First, she challenges Matetich’s affidavit as “conclusory” because it “does not provide
any probative evidence that Rowsey’s usual abode is at that address [203 Oxbow Trail, Marble Falls,
Texas 78654].” Second, she argues that even if the affidavits are sufficient to allow the district court
to authorize substituted service, Matetich did not meet his burden of showing that service via
regular mail was reasonably calculated to give Rowsey notice of suit. She contends that Matetich
should have provided “evidence from the U.S. Post Office or elsewhere to demonstrate that Rowsey
receives mail at that address.” Rowsey complains that Techow’s statement that he believed Rowsey
could and would be served by mail is conclusory and renders his affidavit insufficient because
Techow provided no facts supporting his “legal conclusion.”
We disagree with Rowsey’s characterization of the affidavits. Matetich, Rowsey’s
stepfather, attested to her usual place of abode based on his personal knowledge. This satisfies
rule 106(b)’s requirement that the affiant state “the location of the defendant’s usual place
of business or usual place of abode or other place where the defendant can probably be found.”
Tex. R. Civ. P. 106(b). Moreover, in addition to Matetich’s affidavit, Techow also attested that
he had personally established that the Oxbow Trail address was Rowsey’s usual place of abode
in his attempt to personally serve her. In addition, Techow attested to his unsuccessful attempts
to serve Rowsey both personally and by certified mail. These are facts within the affiants’ personal
knowledge, not legal conclusions. The evidence before the district court was sufficient
9
under rule 106(b) to support the court’s finding that Rowsey’s usual place of abode was at
203 Oxbow Trail and to support its order allowing substituted service.
The evidence was also sufficient to support the district court’s order allowing
substituted service by regular mail. Malarkey attested that the residence was gated, which indicates
that neither service at the residence by delivery to a person over 16 nor service by posting a copy on
the front door would be reasonably effective methods of giving Rowsey notice of the suit, leaving
only regular mail and publication as viable alternatives. Rowsey contends that Matetich did not
meet his burden of showing that service by regular mail would be reasonably effective to give
her notice of the suit because he did not present evidence that Rowsey “was actually receiving mail
at the address for service.” Rowsey asserts that the supreme court’s holding in Hubicki v. Festina,
226 S.W.3d 405, 408 (Tex. 2007) (per curiam), requires a plaintiff to present such evidence before
service by regular mail may be authorized.
Hubicki does not impose such a requirement. Hubicki involved substituted service
authorized by the trial court to be made on the defendant Hubicki by first class mail and
certified mail at a post office box associated with a house he owned in Mexico. Id. at 406. The
plaintiff’s petition alleged that Hubicki had a Texas “residential address” and could be served at
his house in Mexico. Id. The plaintiff made only one attempt to serve Hubicki by certified mail
in Mexico before moving for substituted service. Id. at 407-08. There are several important
differences between Hubicki and this case. One is that the address at which the substituted service
was authorized was not Hubicki’s “residential address,” in contrast to the testimony here that the
Oxbow Trail address was Rowsey’s usual place of abode. In addition, the court found that there was
10
no evidence that Hubicki was in Mexico at the time the plaintiff attempted service there because
almost a month passed between the date of the affidavit stating that Hubicki was in Mexico and the
attempted service. Id. at 408. The court noted that “there is no evidence that Hubicki was actually
receiving mail at the address [the plaintiff] provided,” when differentiating the circumstances present
in Hubicki from those present in State Farm Fire & Casualty Co. v. Costley, 868 S.W.2d 298, 299
(Tex. 1993) (per curiam).
In Costley, the supreme court held that the trial court properly authorized substituted
service upon a defendant by first class mail. Id. State Farm made ten failed attempts to achieve
personal service on the defendant, who was a State Farm homeowners’ insurance policyholder,
before requesting substituted service. Id. at 298. State Farm presented the trial court with evidence
of various correspondence between it and the defendant related to his homeowners’ policy. Id.
at 299. The correspondence included documents that State Farm had sent to the defendant’s mailing
address and a response from the defendant to correspondence sent to his mailing address. Id. The
supreme court held “[t]his was sufficient evidence to establish that notice sent to this address would
be reasonably effective to give Costley notice of the suit.” Id. The court noted that “[s]ervice by
mail achieves a similar result [to service by leaving copies with someone over the age of 16 at the
defendant’s place of abode] because it allows a plaintiff to properly post a return of service which
demonstrates that the plaintiff has precisely followed the court’s order of service by means
reasonably calculated to provide actual notice.” Id. Thus, service by mail achieves the purpose of
rule 106(b) which is “to allow plaintiffs to effect service where proof of actual notice under
Rule 106(a) is impractical.” Id. at 298.
11
The circumstances of this case are more similar to Costley than to Hubicki.4 Only
after multiple attempts at service at Rowsey’s gated residential address did Matetich move for
substituted service. Under these circumstances, Matetich’s testimony that the Oxbow Trail address
was Rowsey’s usual place of abode, combined with Techow’s testimony that he had personally
established it was her place of abode in the same time frame as the motion’s filing, was sufficient
evidence to support the district court’s finding that service by mail would be reasonably effective in
giving Rowsey notice of the suit. Thus, the record affirmatively shows that the district court properly
authorized substituted service in compliance with rule 106(b).
Matetich’s return of service also strictly complied with the rules of civil procedure,
as required for the default judgment to withstand direct attack. See Primate Constr., 884 S.W.2d
at 152. Rule 107 requires an adequate return of service before a court may grant a default judgment.
The rule provides that “[w]here citation is executed by an alternative method as authorized by
4
Rowsey also relies on this Court’s prior opinion in Titus v. Southern County Mut. Ins.,
No. 03-05-00310-CV, 2009 WL 2196041 (Tex. App.—Austin July 24, 2009, no pet.) (mem. op.).
Rowsey asserts that this Court reversed a default judgment in a case with similar facts to this one
in Titus. We disagree that the facts of this case are similar to those in Titus. The relevant facts
in Titus were more similar to Hubicki. Id. at *4. In Titus, the insurance company had made only a
single attempt to serve Titus via certified mail at the service address; no personal service had
been attempted. Id. at *3. The process server had not personally verified that the address was
the defendant’s usual place of abode, and his affidavit did not state that the address was the
defendant’s usual place of abode or other place where she could probably be found. Id. Unlike this
case, the parties to the lawsuit did not have a personal relationship. The only evidence the insurance
company submitted to support that the address was a place where the defendant received mail was
a form from the postal service that confirmed “Address good. No change of address order on file.”
Id. We found this form, “without more, does not affirmatively show that the location stated in
the affidavit was, at that time or ever, Titus’s usual place of abode” because people can receive
mail at locations other than their usual place of abode. Id. Under those circumstances, we held the
insurance company had not established either that substituted service was required or that service
via regular mail was reasonably calculated to provide notice. Id. at *4.
12
Rule 106, proof of service shall be made in the manner ordered by the court.” Tex. R. Civ. P. 107.
Here, the district court ordered that the person executing the return must make proof of service
by “stating when the citation was served, on whom it was served, and where it was served.” The
citation filed with the process server’s service-return affidavit stated that the petition was served on
“Trudy Elizabeth Randall, aka Trudy Rowsey, 203 Oxbow Trail, Marble Falls, Texas 78654,” and
the affidavit stated that he “served citation . . . via first class mail per order for substitute service”
on April 24, 2008 at 2:30 pm. A copy of the order and the stamped envelope addressed to Rowsey
were also attached to the executed citation. Since the return of service states the date of service on
Rowsey at her Oxbow Trail address by first-class mail, in accordance with the court’s order,
the record affirmatively shows strict compliance with rule 107. Accordingly, we hold that the
district court had jurisdiction over Rowsey because the substituted service was not defective, and we
overrule Rowsey’s first point of error.
In Rowsey’s second point of error, she challenges the district court’s subject-matter
jurisdiction over the case. Rowsey argues that instead the probate court had jurisdiction under
former probate code sections 5 and 5A because probate proceedings were pending in the
probate court at the time Matetich filed his suit and this is a matter “appertaining to an estate or
incident to an estate.” See Act of May 28, 2003, 78th Leg., R.S., ch.1060, §§ 2, 4, 2003 Tex. Gen.
Laws 3052, 3053-54. Rowsey contends that Matetich’s claims directly affected the estate’s
administration because he sought a determination “whether certain land is property of the estate” and
that the agreements were not valid contracts. She argues that this error is apparent from the face of
the record because Matetich’s petition refers to the probate proceedings.
13
Former section 5 of the probate code provides that “[a] statutory probate court has
jurisdiction over any matter appertaining to an estate or incident to an estate and has jurisdiction
over any cause of action in which a personal representative of an estate pending in the statutory
probate code is a party.” See Act of May 28, 2003, 78th Leg., R.S., ch.1060, § 2, 2003 Tex. Gen.
Laws 3052, 3053 (former Tex. Prob. Code Ann. § 5(h)). Former section 5A of the probate code
provides that a matter is appertaining to or incident to an estate if, among other things, it is a claim
“by or against an estate,” an action for trial of title to land, or a matter “relating to the settlement,
partition and distribution” of an estate. See Act of May 28, 2003, 78th Leg., R.S., ch.1060, § 4,
2003 Tex. Gen. Laws 3052, 3054 (former Tex. Prob. Code Ann. § 5A(b)). To determine whether
this case is a matter appertaining to or incident to Seareatha’s estate, we review Matetich’s pleadings.
See In re SWEPI, L.P., 85 S.W.3d 800, 805 (Tex. 2002) (determining whether controlling issue is
settlement, partition, or distribution of estate); In re Graham, 971 S.W.2d 56, 59 (Tex. 1998)
(determining whether divorce proceeding is appertaining to or incident to guardianship estate).
A review of Matetich’s pleadings shows that the probate court does not have subject-
matter jurisdiction over Matetich’s suit. Matetich sued Rowsey personally, not in her capacity
as personal representative of Seareatha’s estate. And contrary to Rowsey’s characterization of
his petition, Matetich did not “seek to determine whether certain land is property of the estate.” He
did not seek to try the title of the New Zealand properties—he sought a declaration that the
agreements between him and Rowsey were invalid as contracts. Although Matetich alleges that
the declaration that he seeks will have the effect of allowing a New Zealand court to remove the
14
caveat from the title to the New Zealand properties, he did not seek that result (a clear title) from the
district court here.
In addition, Matetich’s claim here cannot be considered a claim “seeking settlement,
partition, [or] distribution of [Seareatha’s] estate.” Matetich alleged that he and Seareatha owned
the New Zealand properties as “joint tenants with right of survivorship.” As stated above, a no-
answer default judgment results in admission by the defaulting defendant of all facts properly pled
in the plaintiff’s petition (except for the amount of unliquidated damages). Dolgencorp, 288 S.W.3d
at 930. Property owned by spouses as joint tenants with a right of survivorship is a nontestamentary
asset and is governed by chapter XI of the probate code concerning nontestamentary transfers. See
Holmes v. Beatty, 290 S.W.3d 852, 855 (Tex. 2009); see also Tex. Prob. Code Ann. §§ 451,
454 (West 2003). Nothing on the face of the record indicates that the New Zealand properties
are part of Seareatha’s estate. Therefore, the district court, not the probate court, had jurisdiction
over this case, and there is no error apparent on the face of the record. We overrule Rowsey’s
second point of error.
Rowsey contends in her third point of error that the district clerk’s alleged failure to
send notice of the modified final judgment was reversible error. Rowsey argues that the district clerk
had an obligation under rule 306a to notify her that the modified judgment had been entered. See
Tex. R. Civ. P. 306a(3), (4). The first final judgment and the modified judgment were both signed
on May 20, 2008. While the first final judgment, which contained the incorrect date for the
agreements, is stamped “NOTICE MAILED,” the modified final judgment was not stamped.
Rowsey contends that because the record indicates that the clerk gave notice of the first judgment,
15
but does not provide the same indication that notice was given of the second judgment, the alleged
lack of notice of the second judgment is error apparent on the face of the record.
Failure to give notice is not reversible error in this context. The supreme court has
held that “the rules do not impose on the clerk an affirmative duty to record the mailing of
the required notices; accordingly, the absence of proof in the record that notice was provided does
not establish error on the face of the record.” Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009)
(per curiam) (citing Alexander, 134 S.W.3d at 849). Furthermore, Rowsey cannot demonstrate
harm based on the alleged failure to send notice of the modified final judgment. See Tex. R. App.
P. 44.1 (2). Rule 306a provides a procedure by which a party can obtain a finding that it received
notice of the signing of a judgment more than twenty days but less than ninety days after it was
signed, thus resetting the deadlines for post-judgment motions. See Tex. R. Civ. P. 306a(4), (5). In
this case, it is apparent from the record that Rowsey received notice that a default judgment had
been taken against her sometime before the expiration of the ninety-day period because she filed
an answer and a motion for new trial thirty-one days after the judgment was signed.5 No rule 306a
motion by Rowsey appears in the record, and she does not explain how the clerk’s alleged failure
to send notice of the modified final judgment, which was signed the same day as the first judgment,
prevented her from properly presenting her case to this Court. We overrule Rowsey’s
third point of error.
In her fourth point of error, Rowsey asserts that the district court erred as a matter of
law by finding that there was no consideration for the agreements and that this error appears on the
5
Rowsey does not assert that she did not receive notice of the first final judgment.
16
face of the record. We construe this as an argument that Matetich’s petition discloses the invalidity
of his claim on its face. Matetich’s petition stated that the agreements showed that “while there [is]
a list of things [Matetich] agrees to do, [Rowsey] does not agree to perform any act or to pay any
consideration,” rendering the contract unenforceable because it “lacks mutuality of obligation.”
Rowsey argues that the agreements, which were attached to the petition, disclose the consideration
on their face because both parties agree to various obligations to do certain things. Thus, we must
examine the agreements because if the pleading conflicts with the agreements, the agreements
control. See Cecil v. Hydorn, 124 S.W.2d 781, 782 (Tex. App.—San Antonio 1987, no writ)
(holding exhibit governed and pleadings did not support default judgment because attached
agreement differed from agreement described in petition). Rowsey also contends that because the
documents were signed contemporaneously, the consideration expressed in each agreement should
apply as consideration in the other agreement. Rowsey focuses in particular on the provision in the
estate agreement that “[t]he parties agree that no changes can be made to/with any assets of the
estate’s real property or intellectual properties without the consent of the other” as “the clearest
example of consideration.”
We agree with Matetich that each independent agreement must be supported
by independent consideration. The general rule is that separate instruments “executed at the
same time, for the same purpose, and in the course of the same transaction are to be considered
as one instrument, and are to be read and construed together.” Jones v. Kelley, 614 S.W.2d 95, 98
(Tex. 1981) (construing four documents together where primary purpose was conveyance of
entire tract of land). By their terms, these agreements purport to have different purposes, and
17
each agreement purports to be the exclusive agreement regarding its topic. The estate agreement
states it “constitutes all agreements made” regarding the parties’ business affairs, and the personal
affairs agreement states it “constitutes all agreements made” regarding their personal affairs.
Accordingly, we will examine each agreement individually to determine whether it was supported
by valid consideration.
Consideration is a present exchange bargained for in return for a promise. Roark
v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). It can be either a benefit to the
promisor or a detriment to the promisee. Id. The detriment must induce the making of the promise,
and the promise must induce the incurring of the detriment. Id. Surrendering a legal right can be
valid consideration. Northern Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998).
In this case, both agreements are unenforceable for lack of consideration. The estate
agreement primarily consists of provisions in which Matetich agrees to obligations that he
would have under the probate code even if the agreement did not exist (e.g., to honor Seareatha’s
will and to relinquish one-half of all community property). These promises do not constitute
consideration because “discharge of a legal duty is not consideration.” Martens v. Prairie Producing
Co., 668 S.W.2d 889, 891 (Tex. App.—Houston [14th Dist.] 1984, no writ). And as Matetich points
out, the provision upon which Rowsey primarily relies—the provision that states the parties’
agreement not to change any of the estate’s assets without consent of the other—is a meaningless
provision. At the time of Seareatha’s death, her property vested in her beneficiaries immediately,
subject only to the payment of the debts of the testator. See Tex. Prob. Code Ann. § 37 (West 2003);
Woodward v. Jaster, 933 S.W.2d 777, 780 (Tex. App.—Austin 1996, no writ). Thus, the parties
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were not agreeing to surrender any legal right, and the exchange of promises not to do anything
with the property without each other’s consent is not valid consideration. The district court correctly
concluded that this agreement is not supported by valid consideration.
The district court also correctly concluded the personal affairs agreement is not
supported by valid consideration. There is no identifiable bargained-for exchange. It is unclear
whether the promises made are to benefit Matetich or Rowsey. Instead, the agreement consists of
vague statements about Matetich’s and Rowsey’s familial relationship and participation in family
events, in terms that are not specific enough to be enforced by a court. See T.O. Stanley Boot Co.
v. Bank of El Paso, 847 S.W.2d 218, 221-22 (Tex. 1992). We overrule Rowsey’s fourth point of
error because Matetich’s petition stated a valid cause of action on its face for a declaratory judgment
that the agreements are unenforceable and fail for lack of consideration.
CONCLUSION
Having overruled Rowsey’s issues, we affirm the district court’s judgment.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Affirmed
Filed: August 12, 2010
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