Dolores Quiroga and La Palanca, LLC D/B/A Dickey's Barbeque Pit v. El Pistolon II, LTD

NUMBER 13-18-00061-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DOLORES QUIROGA AND
LA PALANCA, LLC D/B/A
DICKEY’S BARBEQUE PIT, Appellants,
v.
EL PISTOLON II, LTD, Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Perkes
Appellee El Pistolon II, Ltd. obtained a default judgment on its breach of contract
claims against appellants Dolores Quiroga and La Palanca, LLC d/b/a Dickey’s Barbeque
Pit (Dickey’s). The trial court denied appellants’ bill of review. On appeal, Dickey’s
contends that service was defective because it was not served at the address designated
for its registered agent. Both appellants contend that the trial court erred by applying
the wrong evidentiary standard to the bill of review. We affirm.
I. BACKGROUND
On January 17, 2012, appellee filed a lawsuit against appellants to recover
damages for breach of a commercial lease agreement. Dolores Quiroga allegedly
signed the lease agreement as the authorized agent of Dickey’s and as personal
guarantor. The next day, the Hidalgo County District Clerk issued a citation to be served
on Dolores Quiroga at 1711 Lauren Lane, Mission, Texas 78572.
On February 14, 2012, the trial court granted appellee’s motion for substituted
service of process. The trial court ordered that service be had on:
Defendant DOLORES QUIROGA by leaving a true copy of the
citation and the attached Petition by attaching said citation and petition on
the front door of Dolores Quiroga’s usual place of abode at 2903 Santa
Olivia, Mission, Texas 78572-7602 and by any other manner that will be
reasonably effective to give the Defendant notice of suit; and
Defendant LA PALANCA, LLC D/B/A DICKEY’S BARBECUE by
leaving a true copy of the citation and the attached petition by attaching said
citation and petition on the front door of La Palanca’s registered agent,
Dolores Quiroga’s usual place of abode at 2903 Santa Olivia, Mission,
Texas 78572-7602.
An officer’s return was filed several days later stating that Dolores Quiroga was served
“in person” at the Santa Olivia address.
Approximately fourteen months later, on April 5, 2013, the trial court granted
appellee’s motion for default judgment. Since the damages were unliquidated, the court
considered evidence on damages and awarded appellee the sum of $432,819.13.
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On October 17, 2016, appellants filed their petition for bill of review, which was
assigned to the same trial court that granted the default judgment, but under a new cause
number. Appellants acknowledged that service of process was executed in compliance
with the order for substituted service but contended that: (1) neither party received
notice of the lawsuit; (2) each had a meritorious defense because appellee mitigated its
damages after the judgment; and (3) appellee knew of but failed to serve the parties at
their correct addresses.
More specifically, Dickey’s acknowledged that Dolores Quiroga was its registered
agent but asserted that the correct address for such purposes was 1711 Lauren Lane,
Mission, Texas 78572, not her purported home address at 2903 Santa Olivia, Mission,
Texas 78572-7602. Dolores Quiroga implicitly denied that the Santa Olivia address was
her actual home address, alleging “[appellee] knew the whereabouts of [her] residence
and or persons who knew her whereabouts but wholly failed to serve her.”
Attached to appellants’ petition were copies of the order granting substituted
service, a citation addressed to Dolores Quiroga individually and the corresponding
officer’s return, and the default judgment. Also attached to the petition was an affidavit
by Dolores Quiroga in which she attests that she “was never given a copy of the citation
and petition [and that she] . . . found out about the lawsuit after judgment was taken.”
An initial hearing was held on April 3, 2017. Without hearing any evidence, the
trial court ordered the parties to mediation. After a final hearing on December 20, 2017,
the trial court denied the bill of review, reciting in its order that it considered “the petition,
the response, the evidence, and the arguments of counsel.” This appeal ensued.
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II. STANDARD OF REVIEW AND APPLICABLE LAW
A bill of review is an independent, equitable action to set aside a judgment that is
no longer appealable or subject to a motion for new trial. Caldwell v. Barnes (Caldwell
II), 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) (citing Baker v. Goldsmith, 582 S.W.2d
404, 406 (Tex. 1979)). “We review the granting or denial of a bill of review under an
abuse of discretion standard.” Temple v. Archambo, 161 S.W.3d 217, 224 (Tex. App.—
Corpus Christi–Edinburg 2005, no pet.) (citing Manley v. Parsons, 112 S.W.3d 335, 338
(Tex. App.—Corpus Christi–Edinburg 2003, pet. denied)). A trial court abuses its
discretion if its actions were arbitrary and unreasonable or if it acted without reference to
any guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985)). However, when the issue raised concerns a question
of law, such as the legal sufficiency of the evidence, we review the trial court’s decision
de novo. See id. (citing Goldsmith, 582 S.W.2d at 409).
Generally, a party seeking a bill of review must allege and prove that (1) it had a
meritorious defense to the underlying cause of action, (2) which it was prevented from
making because of fraud, accident, or a wrongful act by the opposite party, (3) that was
untainted by any fault or negligence of its own. Caldwell II, 154 S.W.3d at 96 (citing
Goldsmith, 582 S.W.2d at 406–08). When a bill of review is based solely on a claim of
non-service, however, the defendant is only required to prove the third element. Id. at
96–97. An individual who is not served with process cannot be at fault or negligent in
allowing a default judgment to be rendered; therefore, the third element is conclusively
established if the defendant proves non-service. Id. at 97 (citing Caldwell v. Barnes
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(Caldwell I), 975 S.W.2d 535, 537 (Tex. 1998)).
An officer’s return is prima facie evidence of the facts of service, regardless of
whether those facts are recited in a form or filled in by the officer. Primate Constr., Inc.
v. Silver, 884 S.W.2d 151, 152–53 (Tex. 1994). “The recitations in the return of service
carry so much weight that they cannot be rebutted by the uncorroborated proof of the
moving party.” Id. at 152 (citing Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972)).
Accordingly, “the testimony of a bill of review plaintiff alone, without corroborating
evidence, is insufficient to overcome the presumption that the plaintiff was served.”
Caldwell II, 154 S.W.3d at 97 n.3.
III. DISCUSSION
This matter presents a threshold issue concerning the adequacy of the appellate
record. Dickey’s contends that service was defective because it was not served at the
address provided for its registered agent. But the citation and officer’s return for Dickey’s
are not in the appellate record, nor is the motion for substituted service. Additionally,
both appellants contend that the trial court applied the wrong evidentiary standard and
failed to give due consideration to their testimony at the final hearing on December 20,
2017. Yet appellants have never requested a reporter’s record of that evidentiary
hearing (or any other hearing), even after appellee cited the absence of the reporter’s
record as a basis for denying appellants’ appeal. Based on the record before us,
appellants have failed to demonstrate reversible error. See TEX. R. APP. P. 44.1(a).
“If the proceeding’s nature, the trial court’s order, the party’s briefs, or other
indications show that an evidentiary hearing took place in open court, then a complaining
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party must present a record of that hearing to establish harmful error.” Vernco Constr.,
Inc. v. Nelson, 460 S.W.3d 145, 150 (Tex. 2015) (per curiam) (quoting Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005)); see also TEX. R. APP. P.
34.1 (“The appellate record consists of the clerk’s record and, if necessary to the appeal,
the reporter’s record.”) (emphasis added); id. R. 34.6(b)(1) (“At or before the time for
perfecting the appeal, the appellant must request in writing that the official reporter
prepare the reporter’s record.”) (emphasis added).
Unlike a restricted appeal, a bill of review allows the parties to develop evidence
beyond the face of the record. Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (per
curiam). Indeed, because they alleged non-service, appellants were required to prove
that the default judgment was untainted by any fault or negligence of their own by
conclusively establishing non-service. See Caldwell II, 154 S.W.3d at 96–97. In their
briefs to this Court, the parties agree that the trial court received evidence at the final
hearing. Appellants complain that the trial court failed to give due consideration to “the
uncontroverted testimony of Dolores Quiroga.” (Emphases added). Appellee responds
that, although not in the appellate record, the only evidence offered by appellants at the
final hearing was the testimony of Dolores Quiroga, and her testimony alone was legally
insufficient to carry appellants’ burden. See Primate Constr., 884 S.W.2d at 152;
Caldwell II, 154 S.W.3d at 97 n.3. Finally, the trial court states in its order denying the
bill of review that it considered “the petition, the response, the evidence, and the
arguments of counsel.” (Emphases added). Without presenting a record of the final
hearing—clearly, an evidentiary hearing—appellants have failed to establish harmful
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error. See Vernco Constr., 460 S.W.3d at 150.
Out of an abundance of caution, we also reviewed the clerk’s record, see TEX. R.
APP. P. 34.5, for evidence that would conclusively establish non-service. See Vernco
Constr., 460 S.W.3d at 147–51 (remanding to the court of appeals to consider evidence
in the clerk’s record that was improperly disregarded by the court). The only evidence in
the clerk’s record that supports non-service is the affidavit of Dolores Quiroga attached
to appellants’ petition. In it she attests that she “was never given a copy of the citation
and petition [and that she] . . . found out about the lawsuit after judgment was taken.”
Without corroborating evidence, her testimony alone was legally insufficient as a matter
of law to overcome the presumption that appellants were served. See Primate Constr.,
884 S.W.2d at 152; Caldwell II, 154 S.W.3d at 97 n.3.
Because Dickey’s contends that its service was defective, we also reviewed the
clerk’s record for any facial defects in service. Again, our review was hampered by an
incomplete record. The only additional items appellants designated for inclusion in the
clerk’s record were the petition for bill of review and appellee’s amended answer. See
TEX. R. APP. P. 34.5(a), (b). The entire clerk’s record spans thirty-eight pages and the
only documents from the underlying lawsuit before us were those attached to appellants’
petition, which included copies of the order granting substituted service, the default
judgment, and the citation and corresponding officer’s return for Dolores Quiroga
individually. Thus, although Dickey’s argues that its service was defective, it failed to
provide us with copies of the citation issued to Dickey’s, see TEX. R. CIV. P. 99, the motion
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for substituted service, see id. R. 106(b), or the corresponding officer’s return.1 See id.
R. 107. Our review is limited to the contents of the record. See TEX. R. APP. P. 34;
Eagle Fabricators, Inc. v. Rakowitz, 344 S.W.3d 414, 421 (Tex. App.—Houston [14th
Dist.] 2011, no pet.). Therefore, based on the record before us, we conclude there is no
independent basis in the clerk’s record for overturning the trial court’s decision. See
Vernco Constr., 460 S.W.3d at 147–51.
Lastly, we note that this outcome should not come as a surprise to appellants. In
its brief to this Court, appellee repeatedly cites the “absence of a proper record” before
concluding appellants’ appeal must fail because “there is no evidence on the bill of review
before the court.” Nonetheless, appellants elected not to file a reply brief, see TEX. R.
APP. P. 38.3, and did not seek leave to file an untimely reporter’s record. See id. R.
34.6(b)(3). Appellants’ issues are overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Delivered and filed the
12th day of September, 2019.
1 The citation issued for Dolores Quiroga individually was addressed to her at 1711 Lauren Lane,
Mission, Texas 78572. According to Dickey’s, that same address is also her designated address as
Dickey’s registered agent, and thus it was the proper address for serving Dickey’s. We note that there is
no evidence in the appellate record establishing the designated address for Dickey’s registered agent.
Nevertheless, it stands to reason that appellee attempted service on Dolores Quiroga at this very address—
at least in her individual capacity—before the trial court granted substituted service for both parties at the
Santa Olivia address. See TEX. R. CIV. P. 106(b). Of course, that’s pure speculation, which only highlights
the limits of our review with an incomplete record.
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