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Opinion filed November 9, 2006
In The
Eleventh Court of Appeals
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No. 11-05-00138-CV
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DARRELL WILLIAMS, Appellant
V.
PATRICK GRAFFLIN AND BETSY GRAFFLIN, Appellees
On Appeal from County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-04-05773-B
M E M O R A N D U M O P I N I O N
This is a restricted appeal from a no-answer default judgment entered against Darrell Williams d/b/a Alliance Foundation Co. See Tex. R. App. P. 30. Williams d/b/a Alliance was sued by Patrick and Betsy Grafflin for fraud, misrepresentation, breach of contract, breach of warranty, and deceptive trade practices. The trial court held a hearing and entered a default judgment awarding the Grafflins actual damages of $44,350, attorney=s fees of $3,850, and exemplary damages of $130,000. Williams appeals. We affirm.
In a pro se brief, Williams presents four issues attacking the default judgment. Williams contends that the trial court erred in entering the default judgment because the owner of Alliance was not served in accordance with Tex. R. Civ. P. 106 and 107 and because the judgment was based upon hearsay testimony, a fraudulent document, and the testimony of witnesses who lacked personal knowledge.
A restricted appeal is filed directly in an appellate court. To prevail in a restricted appeal, an appellant must establish that it filed notice of the restricted appeal within six months after the judgment was signed, that it was a party to the underlying lawsuit but did not participate in the hearing that resulted in the judgment complained of or timely file any post-judgment motions or requests for findings of fact and conclusions of law, and that error is apparent on the face of the record. Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). As in any other appeal, the appellate court does not take testimony or receive evidence. Instead, review is limited to errors apparent on the face of the record. Id.
Williams first alleges error on the face of the record with respect to the service of citation. When the adequacy of service of citation is challenged in a restricted appeal, there are no presumptions in favor of valid issuance, service, or return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Furthermore, it is well established that strict compliance with the rules for service of citation must affirmatively appear on the record. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985).
The clerk=s record in this case contains a motion and supporting affidavit in which the Grafflins requested substituted service pursuant to Rule 106(b). The supplemental clerk=s record contains the trial court=s order granting the motion for substituted service, the citation, and the officer=s return. According to the affidavit of Deputy Michael P. King in support of the motion for substituted service, Deputy King confirmed Williams=s address as his usual place of abode and made several attempts to contact him at that address at various hours of the day. On one occasion, several kids came to the door and said Williams was not home yet. Deputy King left a card for them to give Williams. Deputy King later spoke on the telephone to a woman identifying herself as Williams=s wife; she informed Deputy King that Williams was not there. On another occasion, nobody answered the door at the residence and Deputy King left his business card on the door. Several days later, a woman at the residence told Deputy King that Williams would not be home until later that night. On Deputy King=s final attempt to personally serve Williams at his residence, a young male answered the door and said that he would go get Williams; however, the young man returned and told Deputy King that Williams was not home. In the order authorizing substituted service, the trial court found that Williams was Aavoiding service.@ The order authorized Williams d/b/a Alliance to be served at 4538 Moler, Dallas, Texas B an address confirmed by Deputy King B by serving anyone over the age of sixteen at that address or by wrapping the documents in plastic and securely attaching them with duct tape to the door of the main entrance. The officer=s return shows that Deputy King delivered the citation, a copy of the original petition, and various discovery requests to Darrell Willams d/b/a Alliance Foundation Co. at 4538 Moler in Dallas, Texas. According to the return, these documents were wrapped in plastic and taped to the main entrance as authorized by the trial court=s order.
We can find no error apparent on the face of the record. The record shows that substituted service was properly authorized by the trial court pursuant to Rule 106(b) and that substituted service was executed as authorized. See Primate, 884 S.W.2d at 152 (officer=s return is prima facie evidence of the facts recited therein). The record also shows that the petition gave Williams fair notice of the claims asserted against him and that the petition did not affirmatively disclose the invalidity of the Grafflins= claims. See Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1998). The first issue is overruled.
In the remaining issues, Williams challenges the trial court=s consideration of the evidence submitted at the prove-up hearing. To the extent that these issues relate to Williams=s liability, they must be overruled because Williams=s liability was established by default. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). To the extent that they relate to unliquidated damages, they are also overruled.
Williams failed to adequately brief any issue related to hearsay; he did not specify in his brief what evidence was allegedly hearsay. See Tex. R. App. P. 38.1(h). Furthermore, with respect to the trial court=s use of the challenged evidence, there is no error apparent on the face of the record. Any alleged use of hearsay, perjured testimony, testimony not supported by personal knowledge, or fraudulent documents is not error that is revealed in the record in this case. See Tex. Commerce Bank, Nat=l Ass=n v. New, 3 S.W.3d 515, 517 (Tex. 1999) (holding that hearsay constitutes probative evidence in support of a default judgment and satisfies the requirement of evidence of unliquidated damages). Williams has attached documents to his brief in an attempt to attack evidence submitted by the Grafflins in support of the default judgment. We cannot consider any documents attached to Williams=s brief that were not included in the appellate record. See Alexander, 134 S.W.3d at 848. The second, third, and fourth issues are overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
November 9, 2006
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.