Christopher Lee Phillips v. State , 398 S.W.3d 255 ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00260-CR

Christopher Lee Phillips,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 08-01833-CRF-85

ABATEMENT ORDER

            This order is an effort by this Court, working with the trial court, under the current version of the rules of appellate procedure to ensure that the appellate record is timely filed.  Tex. R. App. P. 35.3(c).  This order is also a departure from previous orders of this Court and is our effort to empower the trial court and parties with a procedure to obtain a timely record by establishing a more formal and certain process for early intervention upon the identification of potentially late filed records. 

            As stated above, the responsibility for assuring the record is timely filed is now the responsibility of the appellate court and the trial court, jointly.  Tex. R. App. P. 35.3(c).  Previously, prior to the current rule, it was the responsibility of the litigants to ensure the timely filing of the record.  Tex. R. App. P. 53(k), amended eff. Sept. 1, 1997.  This is not to say, however, litigants are prohibited from participating in the process.  We believe the attorneys representing the parties play a valuable role in assisting the Courts by appearing at any hearing ordered and (1) making a record of the reason(s) the record has not been timely filed and (2) making a record of the actual or potential prejudice to the parties when a record is filed late.

Background

            The reporter’s record in this appeal was originally due on August 3, 2009.  Tex. R. App. P. 35.2(a).  Two reporters were responsible for the preparation of this record.  The first reporter received an extension of time to September 30, 2009 to file the record.  On that date, the Court received a notice from the first reporter explaining that she could not file the reporter’s record because the second reporter had not completed her portion of the reporter’s record. Both reporters received an extension to November 5, 2009 to file the record.  No reporter’s record was filed.  On January 5, 2010, the Court received a request for extension of time from the second reporter, Helen Wooten.  The request was granted, and the date to file the reporter’s record was extended until February 11, 2010.  Meanwhile, on January 22, 2010, the portion of the reporter’s record from the first reporter was received. 

            The portion of the reporter’s record from Helen Wooten was not filed.  On March 24, 2010, the Clerk of this Court notified Wooten that her portion of the reporter’s record had not been filed and that she had previously indicated it would be filed by February 11, 2010.  Wooten was given 10 days to contact the Court.  On April 5, 2010, Wooten requested another extension of time to file her portion of the reporter’s record.  The request was granted and the date to file her portion of the reporter’s record was extended to May 3, 2010.  Wooten was warned that if the record was not filed by May 3, 2010, the matter would be referred to the Court.  Wooten’s portion of the reporter’s record was not filed.

            In an order dated May 19, 2010, this Court held:

            It is the joint responsibility of this Court and the trial court to ensure that the appellate record is timely filed. Tex. R. App. P. 35.3(c). Further, this Court may enter any order necessary to ensure the timely filing of the appellate record.  Id.  Accordingly, Helen Wooten’s portion of the reporter’s record is ORDERED to be filed no later than 7 days from the date of this order. 

            Failure to file the reporter’s record as herein ordered will result in an abatement order for the trial court, the Honorable J.D. Langley of the 85th District Court, to determine, working with the deputy reporter, Helen Wooten, a date certain by which the supplemental (sic) reporter’s record will be filed.

Even after issuance of the May 19, 2010 order, Wooten’s portion of the reporter’s record was not filed.

            We abated this appeal on June 2, 2010 to the trial court so that the trial court could determine a date certain by which Wooten’s portion of the reporter’s record would be filed.  By written order, the trial court relayed that Wooten assured the trial court the record would be filed with this Court by Friday, June 25, 2010.  The trial court also recommended that this Court grant Wooten one last extension of time to file her portion of the record to June 25, 2010.

            We then reinstated the appeal and ordered Wooten to file her portion of the record by 10:00 a.m. on June 25, 2010.  The record was not filed.

            By letter dated July 5, 2010, the Clerk of this Court provided a schedule of overdue records to Wooten and requested that Wooten enter a date and initial for each case and return to the Clerk by fax no later than 5:00 p.m. on Tuesday, July 6, 2010.  Wooten was informed that it was imperative that the deadline date given for each case be a date by which she felt certain the reporter’s records could be filed.  Wooten returned the schedule and entered July 26, 2010 as the date this record would be filed.  On July 8, 2010, the Court ordered the record to be filed by July 26, 2010. 

            On July 26, 2010, two volumes of record were received from Wooten.  The Clerk noticed, however, that the record was still not complete.  On July 30, 2010, the Clerk spoke with Wooten who stated that another volume should have been delivered.  She said she would talk to her office and get back with the Clerk.  On August 6, 2010, the two volumes which had been received on July 26 were picked up by Wooten’s court reporting firm.  The Clerk left messages with Wooten on August 10, 2010 and August 11, 2010 regarding the status of the record.  The Clerk’s calls were not returned. 

            The Clerk was finally able to reach Wooten by telephone on October 12, 2010.  Wooten informed the Clerk that the record was at a typist who would not return any of Wooten’s calls.  Wooten also told the Clerk that she would send a letter to the Court explaining her situation.  No letter was sent, and the Clerk has had no further communications from Wooten.

            To this date, Wooten’s portion of the record in this appeal has not been filed.  The record is now over one year past due.  Since the date of the Clerk’s last conversation with Wooten, the Court has received a motion from appellant’s counsel for this Court to initiate contempt proceedings against Wooten. 

Order

            This appeal is ORDERED abated to the trial court, the 85th District Court, the Honorable J.D. Langley, presiding, to hold a hearing as soon as practicable but not later than 28 days after the date of this Order to determine:

(1) The reason for the lack of response from Helen Wooten;

(2)  The reasons why Helen Wooten’s portion of the reporter’s record is late;

(3) A date certain when Helen Wooten’s portion of the reporter's record can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving appellant of his right to appeal; and

(4)  Whether Helen Wooten is in contempt of court by having failed to file the record with this Court by the date set by order of the Court upon her representation of the date the record would be filed.

            Counsel for the parties are ordered to assist the trial court in making its determinations through subpoena and questioning of Helen Wooten and any other necessary witnesses.  Helen Wooten shall closely examine her professional and personal schedules and provide those schedules to the trial court in an effort to assist the trial court with a determination of a date certain that her portion of the reporter’s record will be filed.  The parties’ counsel shall also make the trial court aware of any actual or potential prejudices to the parties by the lateness of this reporter’s record.

            The trial court must order Helen Wooten to file the record by the date determined.  Further, if at this hearing the trial court does not find Helen Wooten to be in contempt of court, the trial court must inform Helen Wooten of the consequences of failing to file the record by the date determined and ordered.  Those consequences include:

            (1)        abating the proceeding again to the trial court for a contempt of court                                 hearing;

            (2)        imposing a lump sum monetary fine;

            (3)        imposing a daily fine for each day the record is late beyond the date                                   previously determined by the trial court; and

            (4) confinement in jail until the record is completed.

            The trial court shall require the hearing to be transcribed.  To the extent necessary or pertinent to obtaining compliance with the rules regarding preparation of the reporter’s record, the trial court must: (1) prepare findings of fact and conclusions of law addressing the above issues; (2) require the preparation of a supplemental clerk's record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in the matter; and (3) require the preparation of a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the trial court’s findings and orders must be provided to the trial court clerk within 7 days from the date of the hearing. 

            The trial court clerk is ORDERED to provide a supplemental clerk’s record, containing the written findings and orders of the trial court, to this Court within 14 days from the date of the hearing. 

            Further, the trial court’s official reporter is ORDERED to provide a record of the hearing held to this Court within 14 days from the date of the hearing.

                                                                        PER CURIAM          

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Order issued and filed December 15, 2010

Publish

x. App.—Austin Nov. 9, 2000, no pet.) (not designated for publication).

We agree with the Fourteenth Court’s conclusion in Moreno that “an order erroneously granting a bill of review is merely voidable, not void:”

[B]ecause the trial court’s ruling on a bill of review is appealable after the court denies the bill, or after the court grants the bill and rules on the merits, the court’s ruling is ‘binding until disaffirmed’ and thus, merely voidable.    

Moreno, 4 S.W.3d at 280-81; Tex. R. Civ. P. 329b(f).  However, we disagree with the Fourteenth Court’s finding that Moreno had an “adequate remedy by appeal of the eventual final judgment in the underlying case.”  Moreno, 4 S.W.3d at 281.

Since Moreno, the Texas Supreme Court has relaxed the standards for establishing an adequate remedy.  Today, “[t]he adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments.”  In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding); see In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).  In evaluating benefits and detriments, we consider whether mandamus will: (1) “preserve important substantive and procedural rights from impairment or loss;” (2) “‘allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments;’” and (3) “spare litigants and the public ‘the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’”  Team Rocket, 256 S.W.3d at 262.  “‘[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ’…but extraordinary relief can be warranted when a trial court subjects taxpayers, defendants, and all of the state’s district courts to meaningless proceedings and trials.”  Id. at 262 (citing Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) and Prudential, 148 S.W.3d at 137).

[I]nsisting on a wasted trial simply so that it can be reversed and tried all over again creates the appearance not that the courts are doing justice, but that they don’t know what they are doing.  Sitting on our hands while unnecessary costs mount up contributes to public complaints that the civil justice system is expensive and outmoded.

In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 466 (Tex. 2008) (orig. proceeding).

If Respondent erroneously granted the bill of review, then Spiller is entitled to a default judgment against Boon without the necessity of a meaningless trial.  Absent mandamus relief, he loses his right to a default judgment.  See Tex. R. Civ. P. 239.  Thus, a conclusion that Spiller has an adequate remedy by appeal after final judgment would impair Spiller’s procedural rights and require the parties to participate in a “wasted trial simply so that it can be reversed and tried all over again.”  McAllen Med. Ctr., 275 S.W.3d at 466.  After balancing the benefits and the detriments, we conclude that Spiller does not have an adequate remedy by appeal.  See Team Rocket, 256 S.W.3d at 262; see also Prudential, 148 S.W.3d at 136.  Mandamus relief is the proper remedy in this case. 

ABUSE OF DISCRETION

            In two issues, Spiller argues that Respondent abused its discretion by finding that Boon: (1) “conclusively prove[d] non-service of process upon the named GLORIA BOONE;” and (2) did not participate in the motion for new trial.  See Bexar County, 224 S.W.3d at 185 (abuse of discretion standard); see also Stearman, 252 S.W.3d at 115 (same). 

Non-Service of Process

In issue one, Spiller argues that Boon failed to establish non-service of process because her testimony denying service is uncorroborated. 

 “[S]trict compliance with the rules for service of citation [must] affirmatively appear on the record in order for a default judgment to withstand direct attack.”  Primate Constr. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).  “There are no presumptions in favor of valid issuance, service, and return of citation.”  Id.  “The return of service is not a trivial, formulaic document,” but is “prima facie evidence of the facts recited therein.”  Id.  “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.

The prohibition against considering the challenger’s evidence applies only if the evidence does not rise above mere denial of service, or mere denial of service buttressed only by the serving officer’s inability to remember serving that particular party.  The test of the evidence, from whatever source, is whether it demonstrates independent facts and circumstances that support, and thus corroborate, the challenger’s claim.

Min v. Avila, 991 S.W.2d 495, 503 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

The officer’s return, signed by Deputy Richard Tackett, states that Boon was personally served at 10:05 a.m. on August 18.  Boon testified that she was not personally served on this date and no citation was affixed to her door.  She found a citation, signed by Tackett and dated August 19, in her mailbox.  Boon wrote on the citation: “Found in mail box open faced - no envelope.”  Tackett did not testify.

Boon faxed the citation and petition to Dottie Melko at Germania Insurance.  Melko sent a letter to Spiller’s counsel stating that the petition was left in Boon’s mailbox, which is “hardly proper service,” requesting proper service of the suit, and informing counsel that Germania did not accept service for its insureds.  Counsel provided Melko with a copy of the petition and order for substituted service.  Boon testified that she was not thereafter served and never authorized Germania to accept service for her.  She was unaware that Melko asked for an extension to file an answer.

Boon argues that her handwritten notation on the citation and Melko’s letter corroborate her testimony.  Spiller contends that this evidence is insufficient corroboration because Boon is the source of the information.  See Davis v. Davis, 521 S.W.2d 952, 954 (Tex. Civ. App.—Forth Worth 1975, no writ) (“There should be at least two witnesses or one witness with strong corroborative facts and circumstances proceeding from a source other than the witness.”); see also Garza v. Phil Watkins, P.C., No. 04-07-00848-CV, 2009 Tex. App. LEXIS 1588, at *6-8 (Tex. App.—San Antonio Mar. 4, 2009, no pet.) (mem. op.) (Garza and his wife testified to an absence of service, but process server gave detailed information regarding service on Garza).

Boon’s delivery of the citation and petition to Melko is some evidence supporting her contention that she was not served.  See Ward v. Nava, 488 S.W.2d 736, 737-38 (Tex. 1972) (Declining to disturb trial court’s finding to the contrary, but concluding: “The actions of Ward in searching for the papers and in promptly taking the papers to the insurance agent on their discovery constitute some corroborating evidence of Ward’s contention that he had not been served.”).  Additionally, corroborating evidence need not be direct, but may be circumstantial.  See Sanders v. Harder, 227 S.W.2d 206, 209, 148 Tex. 593 (1950); see also Min, 991 S.W.2d at 501.  The record contains such evidence. 

For instance, the record contains two citations signed by Tackett, each with a different date.  Constable Bill Pearce identified Tackett’s initials on the citation found in Boon’s mailbox.  Both citations incorrectly name “Gloria Boone,” not “Gloria Jean Boon.”  See Medeles v. Nunez, 923 S.W.2d 659, 662 (Tex. App.—Houston [1st Dist.] 1996, writ denied), overruled on other grounds by Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792-93  (Tex. App.—Houston [1st Dist.] 1999, no pet.) (Citation defective, in part, because it named “‘Maria Mendeles’ (not Maria Medeles) as the defendant”).  Respondent authorized service by leaving a copy of the citation and the petition with anyone over the age of sixteen at 7324 W. FM 916 or by affixing the citation and petition to the front door at 12547 CR 117.  Tackett’s return states that service was accomplished “in person,” but the document attached to the citation states: “RETURNED[] COURTS.  REQ 106 ADDRESS VERIFIED REC’D OK TO HANG 08-01-2008.”  Not only is this inconsistent, but the manner of service alleged in the return does not comport with that authorized by Respondent’s order.  See Dolly v. Aethos Commc’n. Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.).

The citations for Glenda and Jerry list the Rio Vista address and state that service was achieved on August 18 at 9:05 a.m., one hour before Boon was allegedly served at the 12547 CR 117 address. Both Glenda and Jerry testified that they were not personally served on this date and were not even home at 9:00 a.m. on the 18th.  Glenda and Jerry both testified that they were never served any papers on Boon’s behalf and never found any papers affixed to the front door of their residence.

            Moreover, Pearce testified that Tackett quit work a few days after August 18.  Deputy Constable Lou Corwin testified that she had to retrieve Tackett’s official vehicle and conduct a welfare check at his home.  Corwin found several unserved and served documents in the vehicle.  Laura Summey, a clerk for Constable Pearce, testified that Tackett dropped off several such documents at her home.  Corwin testified that she notarized Tackett’s affidavit, but he had attempted to write, not print, his signature.

Spiller contends that this evidence does not affect Boon’s service because Pearce and Summey received no complaints regarding unserved documents in Tackett’s possession or documents he claimed to have served, Corwin testified that Tackett was aware of the proper procedures regarding completion of documents, and Pearce testified that he had no reason to doubt the veracity of the return.  However, Tackett’s behavior in the days following the alleged service of Boon raises questions regarding Tackett’s credibility, and thus, the veracity of the return.  See Min, 991 S.W.2d at 503 (Officer’s testimony raised questions regarding proper service of other papers).

Whether Boon was served with citation is at least within the zone of reasonable disagreement.  See Sanders, 227 S.W.2d at 209 (Despite officer’s return and deputy’s testimony claiming service, various circumstances “while not as strong as might be desired, [] constitute[d] some competent evidence corroborating the testimony of the petitioners [denying service].”).  Respondent did not abuse his discretion by finding that Boon conclusively proved non-service of process.

Motion for New Trial

In issue two, Spiller argues that Boon participated in the filing of the motion for new trial and failed to exhaust her legal remedies.

Traditionally, a bill of review requires proof of three elements: (1) a meritorious defense, (2) that was not asserted due to fraud, accident, or wrongful act of an opponent or official mistake, (3) unmixed with any fault or negligence by the movant.  Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006).  However, “a defendant who is not served with process is entitled to a bill of review without a further showing, because the Constitution discharges the first element, and lack of service establishes the second and third.”  Id. “A party who becomes aware of the proceedings without proper service of process has no duty to participate in them.”  Id. (quoting Caldwell v. Barnes, 154 S.W.3d 93, 97 n.1 (Tex. 2004)). “While diligence is required from properly served parties or those who have appeared…those not properly served have no duty to act, diligently or otherwise.”  Id. at 798.

Boon was not required to file a motion for new trial before seeking a bill of review.  See Ross, 197 S.W.3d at 797.  Nevertheless, Spiller contends that a motion for new trial and supporting affidavit were filed on Boon’s behalf.

When she discovered the default judgment, Boon contacted Glenda and told her to “take care of it.”  She also contacted Glenda’s attorney, Josh Turman.  Boon testified that a motion for new trial may have been mentioned, but that Turman was not her attorney and she had no “specific knowledge” of how he planned to remedy the situation.  She had no knowledge of the status of the case until she received a notice for post-trial deposition.  Boon did not recall signing an affidavit, receiving an affidavit from Turman, or signing an affidavit in Turman’s office.  She testified that the signature on her alleged affidavit was not her signature and she did not know whose signature it was.  She did not recall authorizing anyone to sign the affidavit on her behalf.

Glenda testified that she signed the affidavit, believing that she had Boon’s permission because Boon wanted her to “take care of it.”  She knew that Turman was filing the motion for new trial on Boon’s behalf, but she never directly told Boon that an affidavit would be filed on her behalf and was not certain that she told Boon about the motion for new trial.  She further testified that Turman was not Boon’s attorney. 

Spiller contends that Boon and Glenda established an agency relationship whereby Glenda “took affirmative steps to seek relief from the default judgment,” including “”hiring of counsel to prepare and present the motion, the preparation of an affidavit on behalf of Ms. Boon, and signing the affidavit of Ms. Boon.”

However, both Boon and Glenda testified that Turman was not Boon’s attorney and that Boon was unaware that a motion or affidavit would be filed on her behalf.  Even assuming that Glenda was authorized to act as Boon’s agent, “[a] statement signed on behalf of the affiant…is not a valid affidavit even if the affiant expressly authorizes the signature.”  De Los Santos v. Sw. Tex. Methodist Hosp., 802 S.W.2d 749, 755 (Tex. App.—San Antonio 1990), overruled on other grounds by Lewis v. Blake, 876 S.W.2d 314 (Tex. 1994); see Tex. Gov’t Code Ann. § 312.011(1) (Vernon 2005) (An “affidavit” is a “statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.”); see also Hatcher v. TDCJ-Inst’l Div., 232 S.W.3d 921, 925 (Tex. App.—Texarkana 2007, pet. denied) (“An affidavit must be signed by the affiant for such an instrument to have any effect.”).  Boon’s affidavit was invalid because she did not personally sign the affidavit in the presence of the notary.  See De Los Santos, 802 S.W.2d at 755; see also Hatcher, 232 S.W.3d at 925.

Nor was Boon required to file a notice of appeal.  Having established non-service of process, she was not required to exhaust all legal remedies.[4] See Cash v. Beaumont Dealers Auto Auction, Inc., 275 S.W.3d 915, 919 (Tex. App.—Beaumont 2009, no pet.) (notice of appeal); see also Ross, 197 S.W.3d at 797 (motion for new trial); Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (restricted appeal).

In summary, whether Boon participated in the motion for new trial is at least within the zone of reasonable disagreement.  Respondent did not abuse his discretion by finding that Boon did not so participate.

CONCLUSION

            Because Spiller has not established his right to mandamus relief, we deny his petition for writ of mandamus.

FELIPE REYNA

Justice

Before Chief Justice Gray

Justice Reyna, and

Justice Davis

(Chief Justice Gray dissenting with note)*

Writ denied

Opinion delivered and filed January 13, 2010

[OT06]

*           (Chief Justice Gray would deny the petition for writ of mandamus without an opinion. A separate opinion will not issue.  He notes, however, that once the Court determined, as he had when it was first filed, that the petition should be denied, there would be no wasted trial and thus there is adequate relief by appeal notwithstanding the “relaxing” of this factor when balanced with cost. The Court simply engages in giving Spiller the bad news now rather than overruling an issue if Spiller must appeal later.  Chief Justice Gray joins no part of the opinion.)

---

[1] The petition and citation both name “Gloria Boone.”

[2] This proceeding was filed under a new cause number.

[3]               Respondent orally granted Boon’s bill of review at the conclusion of a hearing on April 8, 2009.

[4]               Spiller cites several cases for the proposition that Boon must exhaust legal remedies even when alleging non-service.  See In re Botello, No. 04-08-00562-CV, 2008 Tex. App. LEXIS 8875, at *10-11 (Tex. App.—San Antonio Nov. 26, 2008, orig. proceeding) (mem. op.); see also In the Interest of A.G.G., 267 S.W.3d 165, 168-69 (Tex. App.—San Antonio 2008, pet. denied); Morgan v. Bracken, No. 05-03-01813-CV, 2004 Tex. App. LEXIS 11112, at *3-4 (Tex. App.—Dallas Dec. 10, 2004, no pet.) (mem. op.); Ledbetter v. State, No. 02-03-00058-CV, 2004 Tex. App. LEXIS 7295, at *2-7 (Tex. App.—Fort Worth Aug. 12, 2004, no pet.) (mem. op.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 294-95 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Brooks v. Assoc. Fin. Servs. Corp., 892 S.W.2d 91, 94 (Tex. App.—Houston [14th Dist.] 1994, no writ).  The Texas Supreme Court, however, has made clear that this is not the case when a party proves non-service of process.  See Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 797 (Tex. 2006).