Opinion
NO. 09-19-00153-CV
07-16-2020
IN THE INTEREST OF A.C.S.
On Appeal from the 418th District Court County, Texas
Trial Cause No. 17-06-07099-CV
MEMORANDUM OPINION
This is a restricted appeal from a default judgment entered against appellant J.C.S., the father of A.C.S., a minor child. In two issues, appellant argues that the trial court erred in rendering a default judgment because the face of the record fails to show that (1) he was properly served, and (2) a party in interest was properly cited or waived appearance at the default hearing. We affirm the trial court's judgment.
Procedural Background
In October 2018, Mother filed a petition to modify the parent-child relationship seeking to modify the geographical restriction in the prior order relating to A.C.S. Mother's petition indicated that appellant could be served at his last known mailing address in Lubbock, Texas, and that the Texas Office of the Attorney General ("OAG") was a party in interest but no service was necessary. The trial court conducted a hearing on Mother's petition and determined that (1) all persons entitled to citation were properly cited, and (2) although appellant had been duly and properly cited, he failed to appear and wholly made default. Following the hearing, the trial court entered a default judgment against appellant, granting Mother's request to designate the primary residence of A.C.S. within the State of Texas. Appellant filed this restricted appeal.
Analysis
To prevail on a restricted appeal, appellant must show that (1) he brought the appeal within six months after the trial court signed the judgment; (2) he was a party to the suit; (3) he did not participate in the hearing that resulted in the complained-of judgment and did not 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. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see also Tex. R. App. P. 26.1(c), 30. "These requirements are jurisdictional and will preclude a party's right to seek relief by way of a restricted appeal if they are not met." Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 315 (Tex. App.—Fort Worth 2015, no pet.).
Review by restricted appeal affords the appellant the same scope of review as an ordinary appeal, which is a review of the entire case. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). Our review is limited to the face of the record, consisting of all documents on file with the trial court at the time of judgment, including the clerk's record and any reporter's record. Laas v. Williamson, 156 S.W.3d 854, 857 (Tex. App.—Beaumont 2005, no pet.); see Norman Commc'ns, 955 S.W.2d at 270. Conversely, "[e]vidence not before the trial court prior to final judgment is beyond the scope of review and may not be considered." Laas, 156 S.W.3d at 857.
The record shows that the trial court entered the final judgment on December 27, 2018, and that appellant filed his notice of restricted appeal on May 15, 2019, which was within the requisite six-month period. See Tex. R. App. P. 26.1(c). Appellant was a party to the underlying suit, as evidenced by the petition, but appellant did not appear at the hearing on December 27, which resulted in a default judgment against him. The record shows that appellant did not file any post-judgment motions or requests for findings of fact and conclusions of law. Thus, the only element left to examine is whether error is apparent on the face of the record. See Alexander, 134 S.W.3d at 848.
In his first issue, appellant argues that service was ineffective because the face of the record fails to show that the process server was authorized to serve citations under Rule 103. See Tex. R. Civ. P. 103. According to appellant, strict compliance with the rules governing service of citation is mandatory for a default judgment to withstand an attack on appeal. Appellant argues that the default judgment was supported by an affidavit of service executed by the private process server, Mark Flock, and that Flock's affidavit is insufficient because it fails to state that he was authorized by law to effect service. Mother argues that a process server who is certified under order of the Supreme Court only has to provide his identification number and the expiration date of his certification, and that Flock fulfilled the requirements by including the information in his signature block.
"Strict compliance with the rules governing service of citation is mandatory if a default judgment is to withstand an attack on appeal." Ins. Co. of the State of Pa. v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009); see Tex. R. Civ. P. 124. The failure to affirmatively demonstrate strict compliance with the rules of civil procedure renders the attempted service of process invalid. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). 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., Inc., 186 S.W.3d 571, 573 (Tex. 2006). Rule 103 provides that citation and other notices and papers issued by the court may be served anywhere by, among others, any person certified under order of the Supreme Court. Tex. R. Civ. P. 103. Rule 107 requires that the return of service include the name and signature of the person who served the citation, and if that person was a process server certified under order of the Supreme Court, his identification number and the expiration date of the certificate must be disclosed in the return. Tex. R. Civ. P. 107(b)(9), (10), (e). No default judgment shall be granted until proof of service as provided by Rule 107 has been on file with the clerk of the court for ten days, excluding the day of filing and the day of judgment. Tex. R. Civ. P. 107(h). Whether service strictly complied with the rules is a question of law that we review de novo. See Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The record shows that Flock's affidavit of service includes both his identification number and the expiration date of his certificate as required by Rule 107. See Tex. R. Civ. P. 107(b)(10); see also Le Nguyen v. Lopez, 582 S.W.3d 468, 472 (Tex. App.—Amarillo 2018, no pet.), modified on other grounds, No. 07-15-00128-CV, 2018 WL 5093286 (Tex. App.—Amarillo Oct. 18, 2018, no pet.) (mem. op. on reh'g). Because the face of the record shows that citation and its return strictly complied with the rules of civil procedure, appellant has failed to show that error is apparent on the face of the record. See Tex. R. Civ. P. 103, 107(b)(10); Lejeune, 297 S.W.3d at 256; Alexander, 134 S.W.3d at 848. We overrule issue one.
In issue two, appellant argues that the face of the record fails to show that the OAG, a party in interest, was properly cited or waived appearance at the default hearing. Appellant complains that the judgment did not dispose of all parties whose rights were affected by the modification suit and that there can be no judgment without service of the OAG. Mother argues that appellant failed to request the reporter's record from the default hearing which contains findings made by the court, judicial notice taken, and other critical information relevant to this matter. According to Mother, the face of the record is incomplete without the reporter's record, and appellant cannot show that error exists on the face of the record, because the absence of proof does not establish error. Mother further argues that the final order did not result in a judgment against the OAG, because the OAG has no interest in a suit relating to the modification of a geographic restriction, and that appellant lacks standing to assert error on behalf of the OAG. The OAG declined to file a brief.
A party has standing to appeal when his interest has been prejudiced or adversely affected by the trial court's judgment. Tex. Comm'n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887, 892 (Tex. App.—Austin 2014, no pet.). An appellant may not complain of errors that do not injuriously affect him or that merely affect the rights of others. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973); K.B. v. N.B., 811 S.W.2d 634, 641 (Tex. App.—San Antonio 1991, writ denied). The record shows that the trial court's order in Mother's suit to modify the parent-child relationship did not affect the OAG's interest. The record further shows that the OAG did not file any type of pleading in Mother's suit, and the OAG declined to file a brief in this appeal. We conclude that appellant lacks standing to complain that the OAG was not served. See Jackson, 499 S.W.2d at 92; Bonser-Lain, 438 S.W.3d at 892; K.B., 811 S.W.2d at 641. We overrule issue two. Having overruled each of appellant's issues, we affirm the trial court's judgment.
AFFIRMED.
/s/_________
STEVE McKEITHEN
Chief Justice Submitted on February 18, 2020
Opinion Delivered July 16, 2020 Before McKeithen, C.J., Horton and Johnson, JJ.