in the Interest of A.R.A.-G. and C.J.A.-G., Children ( 2019 )

Opinion issued November 26, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01073-CV
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IN THE INTEREST OF A.R.A.-G. AND C.J.A.-G., CHILDREN
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2018-16151
MEMORANDUM OPINION
Appellant, Saby Nicole Barrios Garcia, appeals a default judgment in favor of
appellee, Jose Rogelio Abiles-Rivera. On restricted appeal, Garcia contends that the
trial court erred in entering a default judgment against her because the citation was
not in strict compliance with the rules for service of process. We reverse and
remand.
Background
On March 12, 2018, Abiles-Rivera filed a petition in suit affecting
parent-child relationship against Garcia, seeking to establish paternity to two minor
children, appointment as joint managing conservator, and an award of child support.
On August 2, 2018, Abiles-Rivera filed an amended petition. Garcia did not answer
or make an appearance.
On September 21, 2018, the trial court entered a default order in suit
adjudicating parentage. The trial court found that “Respondent, Saby Nicolle
Barrios Garcia, although duly and properly cited, did not appear and wholly made
default.” The trial court adjudicated Abiles-Rivera to be the father of the two minor
children, designated Abiles-Rivera and Garcia as parent joint managing conservators
and granted Abiles-Rivera the exclusive right to designate the primary residence of
the children, and ordered Garcia to pay $280 per month in child support to Abiles-
Rivera. Garcia timely filed a notice of restricted appeal.
Discussion
In her sole issue, Garcia contends that the trial court erred in entering a default
judgment against her because she did not receive proper notice of Abiles-Rivera’s
suit.
Garcia’s restricted appeal is a direct attack on the trial court’s default
judgment. See Goss v. Sillmon, 570 S.W.3d 319, 322 (Tex. App.—Houston [1st
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Dist.] 2018, no pet.). To prevail, she must show that (1) she filed a notice of
restricted appeal within six months of the judgment, (2) she was a party to the
underlying suit but (3) did not participate in the hearing that resulted in the judgment
or 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. See TEX. R. APP. P. 26.1(c),
30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The first
three elements are undisputed. The record shows that the trial court entered a default
judgment against Garcia on September 21, 2018, and Garcia filed her notice of
restricted appeal on November 30, 2018, Garcia is the defendant in the underlying
suit, and she did not appear at the hearing or file any post-judgment motion or request
for findings of fact and conclusions of law.
With regard to the fourth element, Garcia contends that error is apparent on
the face of the record because the record does not reflect strict compliance with the
rules of civil procedure. Specifically, she argues that she did not receive proper
notice because the citation was served at an incorrect address.1
A trial court must have personal jurisdiction over a defendant to issue a
binding judgment. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). There are
no presumptions in favor of valid service of process in the face of an attack on a
1
Garcia asserts that citation was served to 6310 Dumfries Drive #378, Houston,
Texas 77096 but she lives at 14085 Dublin Apt. # 2412, Houston, Texas 77085.
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default judgment by restricted appeal. See Primate Constr., Inc. v. Silver, 884
S.W.2d 151, 152 (Tex. 1994); TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 319
(Tex. App.—Austin 2002, no pet.). Strict compliance with the rules governing
issuance, service, and return of citation is mandatory. Primate Constr., 884 S.W.2d
at 152. Absent an appearance or waiver, the trial court does not have personal
jurisdiction to enter a default judgment against the defendant unless the record
affirmatively shows, “at the time the default judgment is entered,” proper service of
citation on the defendant. Marrot Commc’ns, Inc. v. Town & Country P’ship, 227
S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
The citation is not a trivial document. Its purpose is to give the court proper
jurisdiction over the parties, satisfy due process, and notify the defendant she has
been sued so that she may appear and defend herself. Goss, 570 S.W.3d at 322; see
also El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 149 (Tex. App.—El Paso
2010, no pet.). Texas Rule of Civil Procedure 99 dictates the citation’s specific
contents and notice requirements. See TEX. R. CIV. P. 99(b) (detailing form of
citation), (c) (setting out notice requirements for citation). It also mandates that the
citation be included in the record. See TEX. R. CIV. P. 99(a) (“The clerk must retain
a copy of the citation in the court’s file.”). The citation’s inclusion in the record
permits a reviewing court to confirm that the citation contained the information
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required by rule. Goss, 570 S.W.3d at 322; see also Garcia v. Ennis, 554 S.W.3d
209, 215 (Tex. App.—Fort Worth 2018, no pet.).
Abiles-Rivera contends that Garcia was properly served on April 10, 2018,
and that the citation informed her that an answer was required and that she risked a
default judgment if she failed to appear. The citation, however, is not a part of the
record on appeal. As the party requesting service, it was Abiles-Rivera’s
responsibility to ensure that service is properly reflected in the record.
Westmoreland v. State, No. 12-06-00104-CV, 2007 WL 677889, at *3 (Tex. App.—
Tyler Mar. 7, 2007, no pet.). A failure on the part of the party requesting service to
affirmatively show strict compliance renders the attempted service of process invalid
and of no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884,
885 (Tex. 1985); see also Goss, 570 S.W.3d at 323 (citing Garcia, 554 S.W.3d at
215 (“It follows that if strict compliance cannot be shown when just one of the items
required by rule 99(b) is missing, then the complete absence of the entire citation—
and the inability to confirm that the citation contains any of the information required
by rule 99(b)—surely renders service invalid as well.”)). A record that does not
include a citation does not show strict compliance with the service-of-process rules.
Goss, 570 S.W.3d at 323; Garcia, 554 S.W.3d at 215.
To show that Garcia was properly served, Abiles-Rivera includes an affidavit
from the process server in the appendix to his brief. However, documents attached
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to an appellate brief which are not part of the record may generally not be considered
by the appellate court. See Texas Windstorm Ins. Ass’n v. Jones, 512 S.W.3d 545,
552 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“The attachment of documents
as exhibits or appendices to briefs is not formal inclusion in the record on appeal,
and, therefore, the documents cannot be considered.”); see also Robb v. Horizon
Cmtys. Improvement Ass’n, 417 S.W.3d 585, 589 (Tex. App.—El Paso 2013, no
pet.); WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23
(Tex. App.—Houston [14th Dist.] 2005, pet. denied). Accordingly, we cannot
consider any documents attached to Abiles-Rivera’s brief which are not part of the
appellate record.
Since there is evidence, the process server’s affidavit, that service actually
occurred, this result seems like the triumph of form over substance. But, the strict
rule requiring the citation to be included in the record serves an important function.
The volume of cases handled by the appellate courts of this state rises to tens of
thousands. The inclusion of a citation in the record is a quick and easy way to ensure,
in each case, that service was made and due process observed. It obviates the
necessity of some more cumbersome method of proving service and aids the efficient
administration of justice.
Because Abiles-Rivera has not demonstrated strict compliance, there is error
on the face of the record, and reversal of the judgment is warranted. See Primate
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Const., 884 S.W.2d at 153; accord Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d
254, 255 (Tex. 2009) (“For well over a century, this court has required that strict
compliance with the rules for service of citation affirmatively appear on the record
in order for a default judgment to withstand direct attack.”). Accordingly, we sustain
Garcia’s issue.
Conclusion
We reverse the trial court’s default judgment and remand the cause to the trial
court for further proceedings.
Russell Lloyd
Justice
Panel consists of Justices Lloyd, Goodman, and Landau.
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