Williams Trenton v. Derek Hammitt ( 2010 )

MEMORANDUM OPINION
No. 04-10-00316-CV
Williams TRENTON,
Appellant
v.
Derek HAMMITT,
Appellee
From the County Court at Law No. 10, Bexar County, Texas
Trial Court No. 351837
Honorable H. Paul Canales, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: December 29, 2010
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART
Williams Trenton filed this restricted appeal of the default judgment entered against him
after substituted service. Trenton complains the substituted service was defective and the default
judgment should be set aside or, in the alternative, the damage award must be remanded because
there is no evidence to support the award. We affirm the default judgment on liability, but
reverse the award of damages and remand for a new trial on damages.
04-10-00316-CV
BACKGROUND
Derek Hammitt filed suit for injuries he allegedly received in an automobile accident that
involved Trenton. After attempting service on numerous occasions, Hammitt filed a motion
seeking authorization for substituted service on Trenton pursuant to Texas Rule of Civil
Procedure 106. Hammitt’s motion was granted and the trial court ordered that service could be
made on Trenton “by leaving a copy of the citation, with a copy of the petition and a copy of this
order attached” at a specified address. The officer’s return of service was on the bottom portion
of the page that contained the notice of citation. The return stated that “a true copy of this
citation together with the accompanying copy of plaintiff’s petition had been delivered” at the
address designated in the Rule 106 order. Stamped on the return of service was the notation
“ORDER FOR SUBSITUTED SERVICE ATTACHED.” The officer signed the return and it
was verified.
A hearing on Hammitt’s motion for default judgment was held on January 8, 2010, but
there is no record of the hearing. On January 11, 2010, the trial court rendered a default judgment
against Trenton and awarded Hammitt $525,000.00 in unliquidated damages. There is no dispute
that Trenton did not participate in the hearing that resulted in the default judgment or file any
post-judgment motions. Trenton filed his Notice of Restricted Appeal on April 26, 2010.
DISCUSSION
Restricted Appeal
A party can prevail in a restricted appeal only if: (1) the restricted appeal is filed within
six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did
not participate in the hearing that resulted in the judgment and did not timely file any
postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is
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apparent on the face of the record. Ins. Co. of State of Pennsylvania v. Lejeune, 297 S.W.3d 254,
255 (Tex. 2009); Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The only
element at issue in this case is whether there is error apparent on the face of the record.
Trenton contends there are two errors apparent on the face of the record: defective
substituted service and no evidence to support a judgment for unliquidated damages.
Substituted Service
Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of
service. Service of process must be performed in strict compliance with rule 106 to support a
default judgment. In re Z.J.W., 185 S.W.3d 905, 907 (Tex. App.—Tyler 2006, no pet.); Vespa v.
Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex. App.—Fort Worth 2003, no pet.); Becker v.
Russell, 765 S.W.2d 899, 901 (Tex. App.—Austin 1989, no writ). When a trial court orders
substituted service pursuant to rule 106, the only authority for the substituted service is the order
itself. See Vespa, 98 S.W.3d at 752; Becker, 765 S.W.2d at 901; Broussard v. Davila, 352
S.W.2d 753, 754 (Tex. Civ. App.—San Antonio 1961, no writ). Therefore, the requirements set
forth in the order must be strictly followed. See Broussard, 352 S.W.2d at 754. Any deviation
from the trial court’s order authorizing substituted service necessitates a reversal of the default
judgment. See Becker, 765 S.W.2d at 901.
The process server’s return of service is considered prima facie evidence of the facts
asserted therein. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam)
“The recitations in the return of service carry so much weight that they cannot be rebutted by the
uncorroborated proof of the moving party. The weight given to the return is no less when the
recitations impeach the judgment than when they support it.” Id. (citations omitted).
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In this case, the rule 106 order required that the order be attached to the citation. Trenton
claims that although the return reflects the citation and petition were served, it does not establish
the rule 106 order was served. Trenton also claims the stamped language regarding the Rule 106
order was located above the officer’s return section on the citation and as such was not part of
the return nor properly verified. To support his contention Trenton relies on Dolly v. Aethos
Commc’ns Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.). In Dolly, the
verification stated that “on this day personally appeared GERALD BORYCZ known to me to be
the person whose name is subscribed on the foregoing instrument and who stated under oath that
they executed the Citation in the above numbered cause pursuant to the Texas Rule of Civil
Procedure.” The court determined that because the phrase “*Posted to the Front Door*” was
located under the verification it was not in the foregoing instrument and not verified. Here, the
stamped language is below the deputy clerk’s signature on the citation and above the sheriff’s
verification. Thus, it is part of the officer’s return.
Trenton also argues the return of service does not establish that the rule 106 order was
served because there is no evidence the process server placed the stamped language on the
return. However, the record contains the original citation which did not include the stamped
language. Furthermore, language does not cease to be prima facie evidence of the facts of service
merely because it is stamped or pre-printed on the officer’s return of service. See Primate
Constr., 884 S.W.2d at 152 (return is prima facie evidence even though the facts in the form are
preprinted rather than filled in by officer); Fowler v. Quinlan Indep. Sch. Dist., 963 S.W.2d 941,
943 (Tex. App.—Texarkana 1998, no pet.)(pre-printed facts on return are prima facie evidence
of service). Accordingly, the service of citation was not defective, and the default judgment on
liability is affirmed.
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Unliquidated Damages
Trenton contends there is no evidence to support the damages awarded in the default
judgment. A restricted appeal may include review of the legal sufficiency of the evidence to
support an award of damages. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997). When a no-answer default judgment is taken on an unliquidated claim, all
allegations of fact set forth in the petition are deemed admitted, except for the amount of
damages. Tex. Commerce Bank, Nat’l. Assn. v. New, 3 S.W.3d 515, 516 (Tex. 1999) (per
curiam); Arenivar v. Providian Nat’l Bank, 23 S.W.3d 496, 497-98 (Tex. App.—Amarillo 2000,
no pet.); Transport Concepts, Inc. v. Reeves, 748 S.W.2d 302, 305 (Tex. App.—Dallas 1988, no
writ).
Hammit admits there was no record made at the hearing on the default judgment. We
hold the default judgment admitted only Trenton’s liability, and because there is no evidence in
the record to support the award of damages, we remand the cause to the trial court for a new trial
on damages. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992)(“when an
appellate court sustains a no evidence point after an uncontested hearing on unliquidated
damages following a no-answer default judgment, the appropriate disposition is a remand for a
new trial on the issue of unliquidated damages.”).
Steven C. Hilbig, Justice
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