Osvaldo Garcia, Individually and D/B/A Club Anarchy v. Thomas Tester

NUMBER 13-15-00498-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
OSVALDO GARCIA, INDIVIDUALLY AND Appellant,
D/B/A CLUB ANARCHY,
v.
THOMAS TESTER, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Garza
In this restricted appeal, appellant Osvaldo Garcia, individually and d/b/a Club
Anarchy, contends by three issues that the trial court erred by rendering a no-answer
default judgment in favor of appellee Thomas Tester in a negligence suit arising from a
traffic accident. We affirm in part and reverse and remand in part.
I. BACKGROUND
On the evening of November 17, 2013, Tester was struck by a vehicle driven by
Michael E. Guerrero while standing on a street corner in Brownsville, Texas. The
following month, Tester filed suit in the 357th District Court of Cameron County against
Guerrero and “SGBAK Inc. d/b/a Anarchy Club” (“SGBAK”). Tester alleged in his original
petition that, on the night in question, Guerrero had patronized Anarchy Club (“Anarchy”),
a bar serving alcoholic beverages; that Guerrero was intoxicated at the time he struck
Tester; and that Anarchy employees had continued to serve alcohol to Guerrero even
though Guerrero “was already visibly intoxicated.” See TEX. ALCO. BEV. CODE ANN.
§ 2.02(b) (West, Westlaw through 2015 R.S.).1 Tester alleged that he suffered multiple
broken bones and severe lacerations, including “the tearing of facial appendages,” as a
result of the incident.
SGBAK filed a verified answer generally denying the allegations and noting in
particular that, on August 30, 2013, it sold Anarchy to Garcia. SGBAK’s verified answer
was filed pro se by Stephen Bejarano, a corporate officer and registered agent for
SGBAK.
On June 3, 2014, Tester filed an amended petition adding Bejarano and Garcia as
1 The Texas Dram Shop Act provides in part:
Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory
cause of action under this chapter . . . upon proof that:
(1) at the time the provision occurred it was apparent to the provider that the
individual being sold, served, or provided with an alcoholic beverage was
obviously intoxicated to the extent that he presented a clear danger to himself
and others; and
(2) the intoxication of the recipient of the alcoholic beverage was a proximate
cause of the damages suffered.
TEX. ALCO. BEV. CODE ANN. § 2.02(b) (West, Westlaw through 2015 R.S.).
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defendants. Both were named in their individual capacities and “d/b/a Anarchy Club.”
The amended petition made the same allegations as the original petition and additionally
asserted that Garcia is a “purchaser/co-owner” of the bar. Bejarano filed an answer in
his individual capacity generally denying the allegations and asserting that he was an
improper party to the suit.
On August 28, 2014, Tester filed a motion for no-answer default judgment as to
Garcia, noting that Garcia had not filed an answer to the amended petition. Attached as
exhibits to the motion were: (1) hospital records documenting over $400,000 in charges
incurred between November 17 and December 18, 2013; and (2) an affidavit by a private
process server stating that he served Tester’s amended petition on Garcia at the address
provided in the petition on June 12, 2014. A hearing on Tester’s motion for no-answer
default judgment took place on September 4, 2014, but Garcia did not appear. No
testimony was taken at the hearing, but Tester’s counsel offered the hospital records into
evidence. The trial court took the matter under advisement and asked counsel to prepare
a proposed judgment that included interest calculations.
On November 24, 2014, the trial court rendered default judgment against Garcia,
awarding Tester $2,223,952.14 in damages2 along with pre- and post-judgment interest.
The trial court then granted Tester’s motion to sever his claims against the other
defendants into a separate cause number, thereby rendering the default judgment against
Garcia final. This restricted appeal followed.
2 The judgment awarded $452,895 in damages for past medical expenses, $400,000 for past
disfigurement, $450,000 for past pain and suffering, and $400,000 for future disfigurement. The judgment
also awarded an additional $400,000 in damages for “past [sic] pain and suffering.” This latter award was
presumably intended to compensate for future pain and suffering.
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II. RESTRICTED APPEAL
To prevail in a restricted appeal, an appellant must establish that: (1) notice of the
restricted appeal was filed within six months after the judgment was signed; (2) appellant
was a party to the underlying lawsuit; (3) appellant did not participate in the hearing that
resulted in the judgment complained of and did not timely file any post-judgment motions
or requests for findings of fact and conclusions of law; and (4) error is apparent on the
face of the record. TEX. R. APP. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134
S.W.3d 845, 848 (Tex. 2004).
Here, the first three elements are undisputed; therefore, the only issue is whether
error is apparent on the face of the record. The face of the record consists of the reporter’s
record and all the papers in the clerk’s record filed prior to final judgment. Davenport v.
Scheble, 201 S.W.3d 188, 193 (Tex. App.—Dallas 2006, pet. denied) (citing Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)).
III. DISCUSSION
Garcia argues by three issues that error appears on the face of the record. He
asserts in particular that: (1) there is no evidence in the record that the private process
server was authorized to serve citations under Texas Rule of Civil Procedure 103; (2)
Tester’s amended petition “failed to assert or give fair notice of any claims or liability
against” him; and (3) the evidence adduced at the default judgment hearing was legally
insufficient to support the judgment.
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A. Service of Process
We first consider whether the record shows that the process server was authorized
to serve the citation on Garcia pursuant to Texas Rule of Civil Procedure 103. The rule
provides in relevant part as follows:
Process—including citation and other notices, writs, orders, and other
papers issued by the court—may be served anywhere by (1) any sheriff or
constable or other person authorized by law, (2) any person authorized by
law or by written order of the court who is not less than eighteen years of
age, or (3) any person certified under order of the Supreme Court. . . . But
no person who is a party to or interested in the outcome of a suit may serve
any process in that suit, and, unless otherwise authorized by a written court
order, only a sheriff or constable may serve a citation in an action of forcible
entry and detainer, a writ that requires the actual taking of possession of a
person, property or thing, or process requiring that an enforcement action
be physically enforced by the person delivering the process.
TEX. R. CIV. P. 103.
The construction of procedural rules is a legal question and is subject to de novo
review. In re OneWest Bank, FSB, 430 S.W.3d 573, 577 (Tex. App.—Corpus Christi
2014, no pet.) (citing In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex.
2007) (orig. proceeding)). We first look to the plain language of the rule and construe it
according to its plain or literal meaning.” Id. (citing Ford Motor Co. v. Garcia, 363 S.W.3d
573, 579 (Tex. 2012)).
“Strict compliance with the rules governing service of citation is mandatory if a
default judgment is to withstand attack on appeal.” Ins. Co. of the State of Pa. v. Lejeune,
297 S.W.3d 254, 256 (Tex. 2009). Failure to affirmatively demonstrate strict compliance
with the rules of civil procedure renders the attempted service of process invalid and of
no effect. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Palomin v. Zarsky Lumber
Co., 26 S.W.3d 690, 693 (Tex. App.—Corpus Christi 2000, pet. denied) (“[A] default
judgment is improper against a defendant who has not been served in strict compliance
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with the law, accepted or waived service, or entered an appearance.”); TEX. R. CIV. P.
124. In a restricted appeal, there are no presumptions in favor of valid issuance, service,
and return of citation. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573
(Tex. 2006).
Here, Tester attached to his motion for default judgment a return of service and
affidavit executed by Rogerio G. Lopez, a private process server. The affidavit indicates
that Lopez personally served Tester’s amended petition upon Garcia on June 12, 2014.
The affidavit further states:
I, Rogerio G. Lopez, am over the age of eighteen, and am neither a party to
nor interested in the outcome of the above suit. I HAVE PERSONAL
KNOWLEDGE OF THE FACTS SET FORTH ABOVE. I have never been
convicted of a felony or misdemeanor involving moral turpitude in any state
OR federal jurisdiction, and I have studied and am familiar with the TEXAS
RULES OF CIVIL PROCEDURES, VERNON’S TEXAS STATUTES, CIVIL
PRACTICE AND REMEDIES CODE and all other applicable rules and
statues [sic] relating to service of citation and/or notices. I am authorized
by written order of a court in this county to serve citations and other notices.
(Emphasis in original.) Garcia argues that the affidavit is insufficient because it stated
merely that Lopez was authorized by a written order of “a court in this county” rather than
by “a written order of the court” as required by the rule. TEX. R. CIV. P. 103 (emphasis
added). He contends that, according to the plain language of the rule, a private process
server in a given case must be authorized by a written order of the particular court in
which that case is pending.
In response, Tester contends that construction of the statute in this manner
“defeats the underlying purpose of the rule by creating the extra burden of obtaining an
ex parte hearing and order rather than relieving the pressure on the sheriff’s department
by allowing persons who meet the Texas Supreme Court’s requirements to effect
service.” See id., cmt. to 2005 rule change (“The rule is amended to include among the
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persons authorized to effect service those who meet certification requirements
promulgated by the Supreme Court and to prohibit private individuals from serving certain
types of process unless, in rare circumstances, a court authorizes an individual to do
so.”).3
We disagree with Garcia’s assertion that the affidavit was insufficient. Lopez’s
averment that he is authorized “to serve citations and other notices” is sufficient to show
that he was, in fact, authorized under Rule 103 to serve process in this case. See Primate
Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (noting that “[t]he return of
service . . . has long been considered prima facie evidence of the facts recited therein,”
and that “[t]he recitations in the return of service carry so much weight that they cannot
be rebutted by the uncorroborated proof of the moving party”); see also Brown v. Clark
Cincinnati, Inc., No. 02-02-00378-CV, 2003 WL 22147555, at *5 (Tex. App.—Fort Worth
Sept. 18, 2003, no pet.) (mem. op.) (finding private process server’s affidavit stating
“I . . . have been authorized by the Denton County Courts to serve process for Denton
County” sufficient to show authorization under Rule 103); Palomin v. Zarsky Lumber Co.,
26 S.W.3d 690, 694 (Tex. App.—Corpus Christi 2000, pet. denied) (“The rules of civil
procedure do not require any specific wording to be included within the court’s order
authorizing service in order to be in compliance with the procedural rules.”).
3 Tester also attaches as an appendix to his appellee’s brief a copy of an “Order to Serve,” rendered
by the presiding judge of the 138th District Court of Cameron County and dated August 11, 2003, stating
that Lopez is “authorized to serve citations, other notices and process issuing out of the District courts of
Cameron County except in a suit in which he or she may be a party or interested in the outcome.” We do
not consider this document in our analysis because it is not part of the appellate record. See 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.”); Arbor E & T, LLC v. Lower Rio Grande Valley Workforce Dev. Bd., Inc., 476 S.W.3d 25, 29 (Tex.
App.—Corpus Christi 2013, no pet.) (noting that, except for the purpose of determining our own jurisdiction,
we “cannot consider documents cited in a brief and attached as appendices if they are not formally included
in the record on appeal”).
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Further, Garcia cites no authority, and we find none, supporting his construction of
the rule. Instead, the only court of appeals to have considered this issue reached a
contrary result. See Mayfield v. Dean Witter Fin. Services, Inc., 894 S.W.2d 502 (Tex.
App.—Austin 1995, writ denied). In Mayfield, the Austin court of appeals considered
whether service of a New York lawsuit upon a Texas defendant by a Texas-based private
process server was proper. Id. at 504–506. The appellant argued that the service was
invalid because the process server had not been authorized by the New York court—i.e.,
the court in which the lawsuit was filed. Id. The court observed that “‘Court,’ as used in
the Texas Rules of Civil Procedure, appears to indicate the court in which the action at
issue is pending.” Id. at 505 (citing TEX. R. CIV. P. 141, 143, 165a, 166, 166a, 171, 172,
174). Thus, the court noted, “a literal reading of Rule 103 could in this case require a
New York court order to authorize a private process server in Texas to serve process.”
Id. Nevertheless, the court declined to adopt this “literal reading” of Rule 103 because it
would “thwart[] the intent” of the New York rule permitting private service of process “by
any person authorized to make service by the laws of the state . . . in which service is
made . . . .” Id. Instead, the court concluded that service of the New York lawsuit was
valid pursuant to a written order authorizing the private process server “to serve citation
and other notices in any lawsuit filed in the district court of Travis County in which he was
not an interested party.” Id. at 506. This case does not involve a lawsuit filed out-of-state,
but we find that the reasoning of Mayfield is sound and applies here.
For the foregoing reasons, we overrule Garcia’s first issue.
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B. Fair Notice of Claims
We next consider whether Tester’s amended petition gave fair notice to Garcia of
the claims being made against him. See Stoner v. Thompson, 578 S.W.2d 679, 685 (Tex.
1979) (holding that a default judgment will be held erroneous if, among other things, “the
petition does not give fair notice to the defendant of the claim asserted”); Hahn v. Whiting
Petroleum Corp., 171 S.W.3d 307, 316 (Tex. App.—Corpus Christi 2005, no pet.); see
also TEX. R. CIV. P. 45, 47.
The amended petition stated in relevant part, under a section entitled “Parties,” the
following:
5. Defendant SGBAK INC. d/b/a Anarchy Club (hereinafter, “Anarchy”)
is a Texas corporation doing business in Cameron County and has
answered herein.
6. Defendant Osvaldo Garcia, Individually and d/b/a Anarchy Club is an
individual who is alleged to be a purchaser/co-owner of Anarchy
Club.
(Parenthetical remark in original.) The amended petition then set forth the alleged facts,
including: (1) that “employees of Anarchy” served Guerrero alcohol even though he was
“already visibly intoxicated”; and (2) “[a]s the employer of the alcohol server who
negligently served alcohol to [Guerrero], Anarchy is vicariously liable for all damages
incurred by [Tester] that were proximately caused by such negligence.” The amended
petition further alleged that “Anarchy”: (1) negligently failed to train its servers about “the
safe and prudent service of alcoholic beverages”; (2) negligently failed to supervise its
servers; and (3) “aided, abetted, and encouraged” its servers to “violate laws regulating
the service of alcoholic beverages.”
Garcia contends that the amended petition did not provide fair notice because
references to “Anarchy” in the factual allegations referred only to SGBAK, not Garcia. We
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disagree. The amended petition clearly identified Garcia as a defendant both in his
individual capacity and “d/b/a Anarchy Club,” and it alleged that Garcia was a co-owner
of the club. The amended petition then set forth allegations of negligence pertaining to
“Anarchy.” In light of the entire pleading, it is not reasonable to view the references to
“Anarchy” as referring only to SGBAK. See SmithKline Beecham Corp. v. Doe, 903
S.W.2d 347, 354 (Tex. 1995) (“We do not, as a rule, give pleadings a too cabined reading.
A court should uphold the petition as to a cause of action that may be reasonably inferred
from what is specifically stated, even if an element of the cause of action is not specifically
alleged.”). Accordingly, the pleadings in Tester’s amended petition were sufficient to fairly
notify Garcia of the claims being made against him. We overrule his second issue.
C. Evidentiary Sufficiency
Finally, we consider Garcia’s third issue, arguing that the evidence adduced at the
default judgment hearing was insufficient to support the damages award.
In a no-answer default judgment, the defendant’s failure to answer operates as an
admission of all of the material facts alleged in the plaintiff’s petition, except for
unliquidated damages. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex.
2009); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When a
specific attack is made on the legal or factual sufficiency of the evidence to support the
trial court’s determination of damages in a default judgment, the appellant is entitled to a
review of the evidence produced. See Norman Comm’ns, 955 S.W.2d at 270; Rogers v.
Rogers, 561 S.W.2d 172, 173–74 (Tex. 1978). When reviewing the legal sufficiency of
the evidence, we consider the evidence in the light most favorable to the challenged
finding and indulge every reasonable inference that would support it. City of Keller v.
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Wilson, 168 S.W.3d 802, 823 (Tex. 2005). The final test for legal sufficiency is whether
the evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review. Id. at 822. The factfinder is the only judge of witness credibility and the
weight to be given to testimony. Id. at 819.
Garcia argues that the evidence was insufficient to support the damages award
because: (1) the hospital records were not supported by affidavit or medical expert
testimony; (2) the hospital records were in the name of “Tester William”; (3) there was no
evidence that the hospital charges were reasonable or necessary; (4) there was no
evidence of any pain and suffering; (5) there was no evidence of any disfigurement; and
(6) there was no evidence to establish Garcia’s liability.
As noted, a defendant’s failure to answer a properly-served lawsuit operates as an
admission of liability arising out of causes of action properly pleaded by the plaintiff. See
Dolgencorp of Tex., 288 S.W.3d at 930; Holt Atherton Indus., 835 S.W.2d at 83. We have
already held that Tester’s amended petition was properly served and the claims made
therein against Garcia were properly pleaded; therefore, Garcia cannot now attack the
sufficiency of the evidence supporting the liability finding. We overrule his third issue
insofar as it attacks the sufficiency of the evidence supporting liability.
However, Garcia’s failure to answer did not absolve Tester of his responsibility to
prove unliquidated damages. See Dolgencorp of Tex., 288 S.W.3d at 930; Holt Atherton
Indus., 835 S.W.2d at 83. The only evidence before the trial court as to damages were
the hospital records. These records alone were insufficient to establish the damages
assessed in the judgment, for several reasons. First, even assuming that the name
appearing on the records—“Tester William”—actually refers to the appellee herein, the
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records were not supported by any affidavit or other testimony establishing their
authenticity. See TEX. R. EVID. 901, 902(10). Second, as Garcia correctly notes, there
was no evidence, such as an affidavit filed under section 18.001 of the Texas Civil
Practice and Remedies Code, establishing that the expenses reflected in the records
were reasonable or necessary. See Walker v. Ricks, 101 S.W.3d 740, 746 (Tex. App.—
Corpus Christi 2003, no pet.) (“A claim for past medical expenses must be supported by
evidence that such expenses were reasonably necessary for the plaintiff to incur as a
result of her injuries. . . . Proof of amounts charged or paid for past medical expenses is
not proof of the reasonableness of those expenses.”); Jackson v. Gutierrez, 77 S.W.3d
898, 903 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“The fact that the testimony
was adduced in a default judgment hearing does not relieve appellee of her burden to
prove the reasonableness and necessity of her medical expenses.”); see also TEX. CIV.
PRAC. & REM. CODE ANN. § 18.001 (West, Westlaw through 2015 R.S.). Third, there was
no evidence whatsoever as to any non-economic damages that Tester may have
suffered—for example, there was no evidence regarding Tester’s past pain and suffering
or disfigurement, nor was there any evidence indicating that Tester would likely suffer
pain or disfigurement in the future. See Biggs v. GSC Enters., Inc., 8 S.W.3d 765, 769
(Tex. App.—Fort Worth 1999, no pet.) (“The mere fact of injury does not prove
compensable pain and suffering or impairment.”); see also Rentech Steel, L.L.C. v. Teel,
299 S.W.3d 155, 165 (Tex. App.—Eastland 2009, pet. dism’d) (“The term ‘disfigurement’
includes an impairment or injury to the beauty, symmetry, or appearance of a person or
thing, rendering it unsightly, misshapen, imperfect, or deformed in some manner.”)
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In sum, no reasonable fact-finder could have concluded, from the hospital records
alone, that Tester suffered $2,223,952.14 in damages as a proximate result of Garcia’s
negligence. Accordingly, error is apparent on the face of the record, and we sustain
Garcia’s third issue insofar as it attacks the sufficiency of the evidence supporting the
damages award. See TEX. R. APP. P. 26.1(c), 30; Alexander, 134 S.W.3d at 848.
IV. CONCLUSION
The Texas Supreme Court has stated:
[A]s a practical matter, in an uncontested hearing, evidence of unliquidated
damages is often not fully developed. This is particularly true when the trial
judge expresses a willingness to enter judgment on the evidence that has
been presented. Therefore, 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.
Holt Atherton Indus., 835 S.W.2d at 86. We therefore affirm that portion of the trial court’s
judgment finding Garcia liable for the claims asserted by Tester in his amended petition,
reverse that portion of the judgment awarding unliquidated damages, and remand for a
new trial on the issue of unliquidated damages only.4 See id.
DORI CONTRERAS GARZA
Justice
Delivered and filed the
1st day of September, 2016.
4 Texas Rule of Appellate Procedure 44.1(b) states we “may not order a separate trial solely on
unliquidated damages if liability is contested.” TEX. R. APP. P. 44.1(b). However, when a defendant appeals
a no-answer default judgment, liability issues are not considered “contested” under the rule. See Fleming
Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d 405, 408 (Tex. App.—Austin 1987, writ ref’d n.r.e.) (applying
predecessor rule).
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