Maria Fidelfa Marcia Guadalupe Perez Cantu v. Manuel Lopez and Nilda v. Lopez

NUMBER 13-20-00398-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARIA FIDELFA MARCIA
GUADALUPE PEREZ CANTU, Appellant,
v.
MANUEL LOPEZ AND
NILDA V. LOPEZ, Appellees.
On appeal from the 332nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Tijerina
The trial court granted a default judgment in favor of appellees Manuel Lopez and
Nilda V. Lopez (the Lopezes). By one issue in this restricted appeal, appellant Maria
Fidelfa Marcia Guadalupe Perez Cantu argues the trial court abused its discretion in
imposing a constructive trust and equitable lien on property owned by PCR Consulting
Services, LLC, d/b/a PCR Consulting Group (PCR) and 3 Perez Management, LLC,
(Perez) and appointing a receiver to sell it. We affirm.
I. BACKGROUND
On August 11, 2017, the Lopezes filed an original petition asserting fraud, civil
conspiracy, and breach of contract against appellant and six other defendants including
PCR and Perez. According to the Lopezes, appellant and the defendants made false
representations, which they relied on to their detriment, causing them to enter into multiple
contracts. The Lopezes further alleged that appellant and the defendants conspired to
defraud them by representing that their funds were invested and would “earn an above-
market rate of return on their investment.”
The Lopezes requested substituted service on Perez and PCR, asserting that a
process server discovered their premises abandoned and vacant, and they attached an
affidavit of due diligence. The trial court granted the Lopezes permission to serve the
Secretary of State (SOS) as Perez’s and PCR’s agent. See TEX. BUS. ORGS. CODE ANN.
§§ 5.251–.252.
Following service on the SOS, on February 21, 2018, the Lopezes filed a motion
for default judgment, requesting that the trial court enter a default judgment against PCR
and Perez. They further requested to sever their causes of action against appellant and
the remaining defendants, as they had not yet been served. The trial court held a hearing
on August 9, 2018, on the Lopezes’ motion for default judgment.
On March 2, 2020, the Lopezes amended their petition, adding seven additional
defendants. They further clarified that PCR and Perez were limited liability companies
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whose charters were forfeited, had been served by the SOS, and defaulted. On March
18, 2020, the trial court entered a “Final Default Judgment” against PCR and Perez and
granted severance on the remaining claims. In the judgment, the trial court awarded the
Lopezes $9,422,204.84, in addition to punitive damages, attorney’s fees, court costs, and
post-judgment interest. The trial court further ordered that the Lopezes held a
“constructive trust and equitable lien” for their benefit on real property owned by PCR and
Perez, and it appointed a receiver for the purposes of selling the property. Finally, the trial
court severed the default final judgment into a separate cause number from the original
cause. With regard to the severed cause, the judgment disposed of all claims and causes
of action against PCR and Perez and was final and appealable. With regard to the original
cause, the final default judgment clarified that “all claims and causes of action against the
remaining [twelve] defendants,” including appellant, “shall remain pending in this original
cause.”
On September 14, 2020, in the severed cause, appellant filed an answer generally
denying the Lopezes’ claims and filed a motion for sanctions. Appellant also filed this
restricted appeal.
II. RESTRICTED APPEAL
To prevail on a restricted appeal, appellant must demonstrate: (1) she filed notice
of the restricted appeal within six months after the judgment was signed; (2) she was a
party to the underlying lawsuit; (3) she did not participate in the hearing that resulted in
the complained-of judgment 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
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record.1 Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) (citing Pike-Grant v. Grant, 447
S.W.3d 884, 886 (Tex. 2014) (per curiam)); see TEX. R. APP. P. 30. “For these purposes,
the ‘face of the record’ consists of all the papers that were before the trial court at the time
it rendered judgment.” Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi–
Edinburg 2016, no pet.). “The requirement that error be apparent on the face of the record
means that ‘error that is merely inferred [from the record] will not suffice.’” Id. (quoting
Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam) (alteration in original)).
Appellant asserts that error is apparent on the face of the record because: (1) the
purported service on PCR and Perez “occurred in a proceeding which was initiated more
than three years after those entities were terminated”; (2) the Lopezes “failed to provide
her with service of process, and “absent notice and the opportunity to heard, appellant
was deprived of the opportunity to prepare a defense and state her objections”; and (3)
the Lopezes failed to serve her with an amended petition. As “evidence” to support these
contentions, appellant relies on her motion for sanctions and the attached exhibits, which
she filed on September 14, 2020—approximately six months after the trial court signed
the final default judgment.
“When extrinsic evidence is necessary to challenge a judgment, the appropriate
remedy is by motion for new trial or by bill of review filed in the trial court so that the trial
court has the opportunity to consider and weigh factual evidence.” Ginn, 282 S.W.3d at
432; see also Convergence Aviation, Inc. v. Onala Aviation, LLC, No. 05-19-00067-CV,
1Because it is dispositive, we only address whether error was apparent on the face of the record.
See Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020).
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2020 WL 29716, at *2 (Tex. App.—Dallas Jan. 2, 2020, no pet.) (mem. op.) (“Extrinsic
evidence not before the trial court at the time of the default judgment may be considered
in a motion-for-new-trial or bill-of-review proceeding, but it cannot be considered in a
restricted appeal.”). Moreover, “[t]he rule has long been that evidence not before the trial
court prior to final judgment may not be considered in a writ of error proceeding.”
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848–49 (Tex. 2004); MG Int’l Menswear,
Inc. v. Robert Graham Designs LLC, No. 05-18-00517-CV, 2019 WL 642724, at *2 (Tex.
App.—Dallas Feb. 15, 2019, no pet.) (mem. op.) (“[T]he error alleged by the appealing
party must be apparent on the face of the record that existed at the time the default
judgment was rendered.”).
Here, the evidence appellant relies on to show error on the face of the record was
not presented to the trial court when it signed the default judgment, and it was not filed
until after the trial court lost plenary power to set aside the default judgment. See TEX. R.
CIV. P. 329b(d); Ex parte Vega, 510 S.W.3d at 547. Therefore, it is extrinsic evidence that
cannot be considered in a restricted appeal to determine whether there is error on the
face of the record. See Alexander, 134 S.W.3d at 848; Ex parte Vega, 510 S.W.3d at 547.
In any event, appellant has attempted to appeal a final default judgment against
PCR and Perez, to which she is not a party. See In re Lumbermens Mut. Cas. Co., 184
S.W.3d 718, 723, 724 (Tex. 2006) (“Generally, only parties of record may appeal a trial
court’s judgment.”). In her reply brief, appellant asserts she has standing to appeal a
judgment for which she is not a party under the virtual-representation doctrine. As
previously stated, because appellant relies on extrinsic evidence not before the trial court
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when it rendered the default judgment, we cannot address her virtual-representation
doctrine argument in this restricted appeal. See Alexander, 134 S.W.3d at 848–49. We
overrule her sole issue. See Ex parte E.H., 602 S.W.3d at 495.
III. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Delivered and filed on the
9th day of June, 2022.
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