Davie Westmoreland, D/B/A Allegheny Casualty Co., and Allegheny Casualty Company v. State ( 2007 )

                NO. 12-06-00104-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVIE WESTMORELAND D/B/A

ALLEGHENY CASUALTY CO.,

ALLEGHENY CASUALTY COMPANY,   §          APPEAL FROM THE 349TH

AND DERRON DANTE FLOWERS,

APPELLANTS

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §          HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

            Appellants Davie Westmoreland d/b/a Allegheny Casualty Co. and Allegheny Casualty Company appeal the trial court’s default judgment in a bail bond forfeiture case.  In two issues, Appellants argue that the trial court erred in granting a default judgment because the citation was defective.  We dismiss the appeal for want of jurisdiction in part and reverse and remand in part.

Background

            Allegheny Casualty Company was surety on the bond of Derron Dante Flowers.  Flowers failed to appear for trial and a judgment nisi declaring forfeiture of the bond was issued.  Allegheny was served with process through a general citation by certified mail.  On October 3, 2005, after Allegheny and Flowers failed to answer or make an appearance, the trial court rendered a default final judgment against them.  On March 28, 2006, Westmoreland and Allegheny filed a notice of restricted appeal.

Restricted Appeal

   A restricted appeal is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment.  TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318 (Tex. App.–Austin 2002, no pet.).  For a restricted appeal to be successful, a notice of restricted appeal must be (1) filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment complained of; (4) who did not file a timely post judgment motion or request for findings of fact and conclusions of law; and (5) error must be apparent on the face of the record.  Id.; Regalado Bail Bonds v. State, 934 S.W.2d 852, 853 (Tex. App.–Corpus Christi 1996, no writ).  The face of the record, for purposes of restricted appeal, consists of all papers on file in the appeal.  TAC Americas, Inc., 94 S.W.3d at 318.

Party to the Lawsuit

   In its appellee’s brief, the State argues that Davie Westmoreland d/b/a Allegheny Casualty Co. was not a party to the suit and, thus, has no standing to pursue a restricted appeal.  Generally, a restricted appeal is available only to parties of record.  Johnson v. Johnson, 841 S.W.2d 114, 115 (Tex. App.–Houston [14th Dist.] 1992, no writ).  The judgment nisi listed the bond agency or surety as “Allegheny Casualty Co.” In the original bond, the surety was “Allegheny Casualty Co.” and the signature of the company’s representative was illegible.  The power of attorney was provided by Allegheny Casualty Company.  The signatures of the president and secretary of the corporation did not include Davie Westmoreland nor was there a “doing business as” status listed on the form.  Both the general citation and the default judgment were against “Allegheny Casualty Co.” Westmoreland’s name did not appear until the notice of restricted appeal.  As such, Westmoreland was not a party to the suit.  See TAC Americas, Inc., 94 S.W.3d at 318; Johnson, 841 S.W.2d at 115.

   However, there is an exception to the general rule that allows nonparties to bring such an appeal.  Johnson, 841 S.W.2d at 115.  Specifically, the exception requires Westmoreland to be one whose privity of estate, title, or interest appears from the record of the cause in the court below, or one who is the legal representative of such a party. Id. (citing Mobil Exploration & Producing U.S., Inc. v. McDonald, 810 S.W.2d 887, 889 (Tex. App.–Beaumont 1991, writ denied)).  Nothing in the record indicates that Westmoreland is the legal representative of Allegheny.  Privity has been found in three types of cases: (1) class actions; (2) will contests; and (3) suits where the parties come under the doctrine of virtual representation.  Id. (citing Mobil Exploration & Producing U.S., Inc., 810 S.W.2d at 889).  This suit is neither a class action nor a will contest and, thus, Westmoreland must show privity through virtual representation.  In order to do that, he must be so connected in law with a party to the judgment, Allegheny, “as to have such an identity of interests that the party to the judgment represented the same legal right.”  Id. (quoting Mobil Exploration & Producing U.S., Inc., 810 S.W.2d at 890).  Those in privity include (1) those who control an action although not a party to it; (2) those whose interests are represented by a party to the action; and (3) successors in interest.  Id. (citing Mobil Exploration & Producing U.S., Inc., 810 S.W.2d at 890).  The record in this case fails to show that Westmoreland is in privity with Allegheny such that the trial court’s judgment affects any property interest of his, nor does it reveal that he is a successor in interest to Allegheny.  See id.  The record also fails to show that Westmoreland has any interest as a surety in the bail bond. See id. Thus, we conclude that Westmoreland is not in privity through virtual representation with Allegheny.  Because Westmoreland was not a party to the lawsuit, we conclude that he has not demonstrated standing to pursue a restricted appeal.  Therefore, we dismiss the restricted appeal as to Westmoreland.

Defective Citation

   In its first issue, Allegheny argues that the trial court erred in granting a default judgment because the citation was defective in three ways.  First, Allegheny complains that a copy of the judgment nisi was not attached to the citation as required by article 22.04 of the Texas Code of Criminal Procedure. Second, the citation did not notify Allegheny to appear and show cause why the judgment nisi should not be made final as required by articles 22.03 and 22.04 of the Texas Code of Criminal Procedure.  Finally, the citation did not notify Allegheny that the bond had been forfeited as required by article 22.03 of the Texas Code of Criminal Procedure.  The State argues that the contention that Allegheny was not served with the judgment nisi is without merit, and that the judgment nisi indicated that the bond was forfeited and that the judgment would become final unless good cause was shown.

Applicable Law

  There are no presumptions in favor of valid issuance, service, and return of citation in the face of an attack on a default judgment by restricted appeal.  TAC Americas, Inc., 94 S.W.3d at 319. For a default judgment to withstand direct attack, the record must show strict compliance with the rules of service of citation.  Id.; GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 59 (Tex. App.–Fort Worth 2003, pet. denied).  A plaintiff defending a default judgment must show strict compliance with the procedural rules governing citation and return of service. TAC Americas, Inc., 94 S.W.3d at 319.  In other words, it is the responsibility of the one requesting service, not the process server, to see that service is properly accomplished.  Laidlaw Waste Systems, Inc. v. Wallace, 944 S.W.2d 72, 75 (Tex. App.–Waco 1997, writ denied).  This responsibility extends to assuring that service is properly reflected in the record.  Id.  Accordingly, when strict compliance is not demonstrated, there is error on the face of the record, and reversal of the judgment is warranted. Regalado Bail Bonds, 934 S.W.2d at 854.  “Strict compliance” means literal compliance with the rules.  In re Z.J.W., 185 S.W.3d 905, 908 (Tex. App.–Tyler 2006, no pet.).

  Bond forfeitures are entirely statutory.  Hubbard v. State, 814 S.W.2d 402, 403 (Tex. App.–Waco 1991, no writ).  The statutory provisions concerning citations in bond forfeitures are found in articles 22.03 and 22.04 of the Texas Code of Criminal Procedure. See id.  Article 22.04 states as follows:

A citation shall be sufficient if it be in the form provided for citations in civil cases in such court; provided, however, that a copy of the judgment of forfeiture entered by the court, a copy of the forfeited bond, and a copy of any power of attorney attached to the forfeited bond shall be attached to the citation and the citation shall notify the parties cited to appear and show cause why the judgment of forfeiture should not be made final.

Tex. Code Crim. Proc. Ann. art. 22.04 (Vernon Supp. 2006).

Analysis

     In this case, the citation was a general citation and appeared to be the form for civil citations used in the trial court. However, the citation failed to notify the parties to appear and show cause why the judgment of forfeiture should not be made final as required by article 22.04 of the Texas Code of Criminal Procedure.  We agree with the Waco court that this language is mandatory.   Hubbard, 814 S.W.2d at 404.  The State argues that the judgment nisi contained the language mandated by article 22.04 and that a copy of the judgment nisi was attached to the citation.  However, attaching a copy of the judgment nisi to the citation, even though the judgment includes the statutorily mandated language, is insufficient to meet the mandatory requirement that the citation notify the parties to appear and show cause. See id.

   Moreover, the record does not show that a copy of the judgment nisi was attached to the citation.  Nonetheless, the State contends that the final judgment stated that Allegheny was served with citation and a copy of the judgment nisi and that, absent a contrary indication in the record, compliance with the code of criminal procedure is presumed.  As we previously explained, there are no presumptions in favor of valid issuance, service, and return of citation in the face of an attack on a default judgment by restricted appeal.  See TAC Americas, Inc., 94 S.W.3d at 319.  Thus, we cannot presume that a copy of the judgment  nisi was attached to the citation and served on Allegheny.  See id.  Because the citation served on Allegheny did not contain the mandatory language of article 22.04 and the record did not affirmatively show that a copy of the judgment nisi was attached to Allegheny’s citation as required by article 22.04, the default final judgment rendered against Allegheny was improper.  Allegheny’s first issue is sustained.  Because Allegheny’s first issue is dispositive, we need not consider its remaining arguments.

Disposition

   Having found that Westmoreland had no standing to appeal, we dismiss his restricted appeal for want of jurisdiction. Having sustained Allegheny’s first issue, we reverse the trial court’s default final judgment as to Allegheny and remand the cause for a new trial.

                                                                                         JAMES T. WORTHEN   

                                                                                                     Chief Justice

Opinion delivered March 7, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)