Opinion
NO. 01-15-00381-CV
10-25-2016
ALI YAZDCHI, Appellant v. WELLS FARGO, Appellee
On Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2014-23577
MEMORANDUM OPINION
Appellant Ali Yazdchi appeals a default judgment in favor of appellee Wells Fargo Bank. On restricted appeal, he argues that the trial court erred in granting default judgment because service of process of the original petition was improper and that a default judgment cannot be granted when proof of service is insufficient. Yazdchi further argues that Wells Fargo should return the funds taken from Yazdchi to satisfy the default judgment because the judgment is void, and Wells Fargo committed fraud on the court when it cited an incorrect address for Yazdchi in its Motion for Default Judgment.
Wells Fargo concedes that service was defective. We reverse the trial court's judgment and remand for further proceedings.
BACKGROUND
On April 28, 2014, Wells Fargo sued Yazdchi for breach of contract, unjust enrichment, and money had and received, seeking $64,547.02 allegedly owed by Yazdchi on a credit card account. Wells Fargo requested Yazdchi be served at the Harris County Jail at 1200 Baker Street.
The Constable's Return of Service was on a preprinted form signed by Deputy O. Davis and represented that Yazdchi was served the citation, but did not identify any other document as served:
Constable Return Of Individual
Cause # 201423577 Tracking # 73016061
In the case of WELLS FARGO BANK. NA VS YAZDCHI, ALI a CITATION and attached ___was issued by the 215TH DISTRICT COURT court of HARRIS County, TEXAS and came to hand on the 10 day of June, 2014 at 9 06 AM to be delivered at 1200 Baker Street, Houston, TX 77002 by delivering to YAZDCHI. ALI
Service of Individual
Executed in HARRIS County, Texas by delivering to each of the within name defendant(s) by DROPING [sic] AT DEF FEET. a true copy of this CITATION together with the accompanying copy of the ___, at the following times and places
Name | Date | Time | Full Address ofService |
|---|---|---|---|
YAZDCHI, ALI | 6/10/2014 | 9:51 AM | 1200 Baker Street,Houston, TX 77002 |
Yazdchi did not file an answer.
On September 25, 2014, Wells Fargo filed a motion for default judgment representing that Yazdchi had been served with the citation and petition on June 10, 2014. It also filed a Certificate of Defendant's Last Known Address, averring that 1200 Baker Street, Houston, Texas 77002 was Yazdchi's last known address.
On October 20, 2014, the court entered a default judgment stating that "Defendant was duly cited as required by law to appear and answer and, that such citation and proof of service have been on file with the clerk for the requisite statutory period." The judgment awarded to Wells Fargo $64,547.02 plus attorneys' fees.
On February 16, 2015, Yazdchi filed a Motion to Set Aside the Default Judgment or to Declare Void Judgment. In that motion, Yazdchi claimed that he had been incarcerated since November 15, 2010, and that he found out about this lawsuit for the first time from a December 19, 2014 letter from Wells Fargo explaining that a default judgment had been entered in its favor. Yazdchi contacted the court and received copies of the court filing from the trial court on January 21, 2015.
Yazdchi argued that the default judgment was void because he was not properly served with the petition, and because he never received notice of the court's default judgment, given that Wells Fargo misrepresented his last address. The trial court did not rule on Yazdchi's motion. On April 17, 2015, Yazdchi filed a restricted appeal challenging the default judgment in Wells Fargo's favor.
STANDARD OF REVIEW
A restricted appeal is a direct attack on a judgment. Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 309 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The requisites of a restricted appeal are: (1) the notice of restricted appeal must be filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who neither participated in the hearing that resulted in the judgment, nor filed a timely post-judgment motion or request for findings of fact and conclusions of law; and (4) the face of the record must disclose the claimed error. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Barker CATV Constr. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Although review by restricted appeal affords review of the entire case and thus permits the same scope of review as an ordinary appeal, error must be apparent from the face of the record. See Norman, 955 S.W.2d at 270; Barker, 989 S.W.2d at 791. The face of the record in a restricted appeal consists of the papers on file with the trial court when it rendered judgment. Gen. Elec. Co. v. Falcon Ridge Apts. Joint Venture, 811 S.W.2d 942, 942 (Tex. 1991). Accordingly, we may not consider evidence or documents that were not before the trial court when it rendered judgment. See Gen. Elec. Co., 811 S.W.2d at 944; Barker, 989 S.W.2d at 794-95.
A. Service on Yazdchi was defective.
To demonstrate proper service, the return of service must include a description of what was served. TEX. R. CIV. P. 107(b)(3). Wells Fargo concedes, as it must, that the return of service was defective because it only indicated that Yazdchi had been served the citation, with no mention of Wells Fargo's petition.
The return of service is not a trivial document, as it is prima facie evidence of proper service. See Primate Const. Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex. 1994). It is the responsibility of the party seeking service to ensure that proof of proper service is completed and reflected in the record. Id. at 153. On direct appeal, there is no presumption of proper issuance, service, or return of service. Id. at 152.
In Shamrock Oil Co. v. Gulf Coast Nat. Gas, Inc., the Fourteenth Court of Appeals held that the failure of the officer to fill in a blank space designated for a description of what was served rendered the service insufficient and, thus, the court reversed the trial court's default judgment. 68 S.W.3d 737, 739 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The return must show service of the correct pleading, and omitting the type of document served to the defendant does not show service of any pleading. Id. As in Shamrock, in this case an officer used a pre-printed form to document return of service, but left blank the spot to show what pleading, if any, was served on Yazdchi. Thus, the face of the record indicates service was defective in this case. Accordingly, we agree with Yazdchi and Wells Fargo that the default judgment against Yazdchi must be reversed.
B. Yazdchi's other issues are outside the scope of this appeal.
In his brief, Yazdchi asks us to find that Wells Fargo committed fraud by representing to the trial court in its motion for default judgment that Yazdchi's last known address was the Harris County Jail, when he was actually housed in a Texas Department of Criminal Justice facility in Edinburg, Texas. He requests that we order Wells Fargo to return, with interest, money it allegedly took from his bank account to satisfy the default judgment, and award him attorneys' fees.
As support, he cites In re Discount Rental, Inc., 216 S.W.3d 831 (Tex. 2007) (per curium). In that case, a default judgment was taken against defendant Discount Rental, Inc. Id. at 832. Discount Rental filed a restricted appeal, complaining of defective service, but did not supersede the judgment. Id. While the appeal was pending, the plaintiffs obtained a writ of execution on Discount Rental's property and seized it to sell. Id. After the court of appeals reversed the default judgment because service was defective, Discount Rental filed a motion to recover its property that was seized to satisfy the default judgment. Id. When the trial court denied the motion for return of the property, Discount Rental filed a petition for writ of mandamus. Id. The supreme court granted mandamus relief, holding that Discount Rental was entitled to recover its property because the default judgment on which execution was issued had been reversed on restricted appeal. Id.
The difference in procedural posture renders Discount Rental inapposite. Here, on restricted appeal, we are limited to the record before the trial court at the time that the trial court entered the default judgment. See Gen. Elec. Co., 811 S.W.2d at 942. As in Discount Rental, on remand Yazdchi may file a motion to recover his property allegedly seized in satisfaction of the default judgment. That, as well as any fraud claim, are issues for the trial court in the first instance.
CONCLUSION
We reverse and remand the trial court's judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.