Fredis Benitez, Margarita Benitez, and Roberto Viera-Segura DBA Viera's Body Shop/Viera's Kustoms/Viera's Kustomz v. City of Dallas ( 2015 )

Affirmed and Opinion Filed June 3, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01368-CV
FREDIS BENITEZ, MARGARITA BENITEZ, AND ROBERTO VIERA-SEGURA DBA
VIERA'S BODY SHOP/VIERA'S KUSTOMS/VIERA'S KUSTOMZ, Appellants
V.
CITY OF DALLAS, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 13-03671
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Evans
Opinion by Justice Bridges
Fredis Benitez, Margarita Benitez, and Roberto Viera-Segura d/b/a Viera’s Body
Shop/Viera’s Kustoms/Viera’s Kustomz appeal the trial court’s default judgment in favor of the
City of Dallas. In two points of error, appellants argue they are entitled to reversal of the default
judgment because they were not properly served under rule of civil procedure 107 and the
evidence does not support the trial court’s award of $100,000 damages. We affirm the trial
court’s judgment.
On April 2, 2013, the City filed its original petition alleging appellants were using their
property illegally for outside salvage and reclamation and vehicle or engine repair or
maintenance. In addition, the City alleged numerous health and safety violations. The City
sought an injunction under section 211.012(c) of the local government code enjoining appellants’
illegal land uses alleged in the petition. Pursuant to sections 54.016 and 54.018 of the local
government code, the City sought civil penalties of $1000 per day per violation.
On April 3 and 4, 2013, the process server served appellants individually with a copy of
the petition and citation. On May 8, 2013, the City filed a motion for leave to file amended
returns of service pursuant to rule of civil procedure 118. The City stated it sought leave to
amend “in order to strictly comply with Texas Rule of Civil Procedure 107 by adding the process
server’s certification expiration date and a more precise description of the pleading served.
Appellants did not file an answer. The City filed a motion for default judgment, and the
trial court set the matter for a hearing on June 20, 2013. At the hearing, Kate Lawler, a code
officer for the City, testified appellants did not have a specific use permit which would have
permitted them to “have outside salvage reclamation.” The City introduced photographs of
appellant’s property, and Lawler testified the same violations as were alleged in the City’s
petition were still present on a subsequent investigation on June 18, 2013. Counsel stated
appellants committed nine health and safety violations over seventy-seven days, entitling the
City to $693,000 in civil penalties. Nevertheless, counsel for the City requested $100,000 in
civil penalties. The trial court entered a default judgment granting the City certain injunctive
relief and awarding $100,000 in civil penalties. Appellants filed a motion to set aside the default
judgment and for new trial, which was overruled by operation of law. This appeal followed.
In their first issue, appellants argue they are entitled to a reversal of the default judgment
and a remand for new trial because the record reflects the City failed to strictly comply with rule
of civil procedure 107. Specifically, appellants argue “the amended return of service was not
located on the citation or attached to it.” Appellants argue the first sentence of rule 107 “is
framed in mandatory terms: the return of the officer or authorized person executing the citation
shall be endorsed on or attached to the same.” However, appellants cite the former rule 107.
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The current version of rule 107, effective since January 1, 2012, states: “The officer or
authorized person executing the citation must complete a return of service. The return may, but
need not, be endorsed on or attached to the citation.” TEX. R. CIV. P. 107. Thus, Rule 107 did
not require the amended return of service in this case to be attached to the citation. See id. We
overrule appellants’ first issue.
In their second issue, appellants argue they are entitled to a reversal of the default
judgment and a remand for new trial because there is no evidence or insufficient evidence to
support the award of $100,000 in civil penalties.
We will sustain a legal sufficiency or “no evidence” challenge if the record shows one of
the following: (1) a complete absence of a vital fact; (2) rules of law or evidence bar the court
from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to
prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the
opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In
reviewing a legal sufficiency complaint, we consider the evidence in the light most favorable to
the prevailing party, crediting favorable evidence if a reasonable fact finder could, and
disregarding contrary evidence unless a reasonable fact finder could not. Id. at 827. A legal
sufficiency challenge fails if there is more than a scintilla of evidence to support the finding.
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006). When confronted by both
a legal and factual sufficiency challenge, an appellate court must first review the legal
sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).
In reviewing a factual sufficiency challenge, we examine all the evidence. Castanon v.
Monsevais, 703 S.W.2d 295, 297 (Tex. App.—San Antonio 1985, no writ). We will reverse only
if the finding is against the great weight and preponderance of the evidence. Id.
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When a no-answer default judgment is entered against a party on an unliquidated claim,
the non-answering party is deemed to have admitted all facts properly pleaded, except for the
amount of damages. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per
curiam); Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999). Thus, if the
facts set out in the petition allege a cause of action, the default judgment conclusively establishes
the defendant’s liability. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984).
Thus, appellants are deemed to have admitted the health and safety violations alleged in
the City’s petition. As further set out in the City’s petition, section 54.017 of the local
government code permits an imposition of $1000 per violation per day. See TEX. LOC. GOV’T
CODE ANN. § 54.017 (West 2008). Lawler testified that the health and safety violations at
appellants’ property were still present on June 18, 2013. Counsel for the City argued there were
nine violations over seventy-seven days, entitling the City to $693,000 in civil penalties.
Nevertheless, counsel for the City requested $100,000 in civil penalties. Thus, the trial court’s
award of $100,000 in civil penalties is actually less than it could have properly awarded,
considering the number of violations. We conclude the evidence is legally and factually
sufficient to support the trial court’s award. See City of Keller, 168 S.W.3d at 810; Castanon,
703 S.W.2d at 297. We overrule appellant’s second issue.
We affirm the trial court’s judgment.
131368F.P05
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FREDIS BENITEZ, MARGARITA On Appeal from the 14th Judicial District
BENITEZ, AND ROBERTO VIERA- Court, Dallas County, Texas
SEGURA DBA VIERA'S BODY Trial Court Cause No. 13-03671.
SHOP/VIERA'S KUSTOMS/VIERA'S Opinion delivered by Justice Bridges.
KUSTOMZ, Appellant Justices Lang and Evans participating.
No. 05-13-01368-CV V.
CITY OF DALLAS, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee CITY OF DALLAS recover its costs of this appeal from
appellants FREDIS BENITEZ, MARGARITA BENITEZ, AND ROBERTO VIERA-SEGURA
DBA VIERA'S BODY SHOP/VIERA'S KUSTOMS/VIERA'S KUSTOMZ.
Judgment entered June 3, 2015.
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