William R. Hickey v. Vanderbilt Mortgage and Finance, Inc.

Opinion filed August 8, 2019

In The

Eleventh Court of Appeals
__________

No. 11-18-00088-CV
__________

WILLIAM R. HICKEY, Appellant
V.
VANDERBILT MORTGAGE AND FINANCE, INC., Appellee

On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV1709388

MEMORANDUM OPINION
This is an appeal from a no-answer default judgment. Appearing pro se,
William R. Hickey appeals the denial of his motion to set aside a default judgment
entered against him. In a single issue on appeal, Appellant contends that the trial
court erred when it denied his motion to set aside the default judgment. We affirm
the judgment of the trial court.
 Background Facts
On September 26, 2017, Appellee, Vanderbilt Mortgage and Finance, Inc.,
filed an original petition to foreclose on its interest in Appellant’s manufactured
home after Appellant defaulted on a retail installment contract concerning the
purchase of that home. A process server, Louis C. Starzel, made numerous attempts
to serve Appellant but was unsuccessful. Appellee subsequently filed a motion for
substituted service pursuant to Texas Rule of Civil Procedure 106. Appellee
attached to the motion an “Affidavit of Due Diligence” executed by Starzel. In the
affidavit, Starzel stated that he attempted to serve Appellant numerous times at
Appellant’s home but that he was unable to access the property. Starzel also stated
that he received a telephone call from a man claiming to be Appellant who stated
that Starzel left his card on the wrong gate and that Appellant would only accept
service for his bankruptcy proceeding.
The trial court granted Appellee’s motion for substituted service by
authorizing citation “by posting to the front door or entry gate at [Appellant’s] usual
place of abode: 7820 CR 327, Blanket, TX 76432.” Appellee subsequently filed a
return of service consisting of an affidavit from Starzel entitled “Proof of Service,”
which indicated that he served citation by posting it on Appellant’s gate at 7820 CR
327, Blanket, Texas 76432. Appellant did not file an answer. Appellee then filed a
motion for entry of default judgment. The trial court subsequently entered a default
judgment against Appellant on January 18, 2018.
On February 7, 2018, Appellant filed a motion to set aside the default
judgment, asserting that it should be set aside because (1) he did not receive service
and (2) he had a meritorious defense. The trial court conducted a hearing on the
motion to set aside the default judgment. Appellant acknowledged at the hearing
that he placed a call to Starzel as described in Starzel’s affidavit. Appellant stated
that he told Starzel that Starzel would have to “walk across the pasture to
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[Appellant’s] house” if Starzel wanted to serve Appellant. Appellant attributed
Starzel’s failure to come to the house on “laziness.” The trial court denied
Appellant’s motion to set aside the default judgment.
Analysis
In his sole issue, Appellant contends that the trial court erred when it denied
his motion to set aside the default judgment. We note at the outset that Appellant
makes several additional arguments in his brief that are not amenable to resolution
in this appeal. For example, Appellant has attached several documents and
photographs to his briefs that were never presented to the trial court. The appellate
record consists of the clerk’s record and, if necessary, a reporter’s record. TEX. R.
APP. P. 34.1. Attaching documents to briefs as exhibits or appendices does not make
them part of the appellate record. Robb v. Horizon Cmtys. Improvement Ass’n, 417
S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.). An appellate court is required
to consider a case solely on the appellate record, and it cannot consider documents
attached to briefs as exhibits or appendices. Id.; Cherqui v. Westheimer St. Festival
Corp., 116 S.W.3d 337, 342 (Tex. App.—Houston [14th Dist.] 2003, no pet.);
Brown v. McGonagill, 940 S.W.2d 178, 179 (Tex. App.—San Antonio 1996, no
writ).
Additionally, Appellant argues that the default judgment violated many of his
constitutional rights. He also makes several complaints about the trial court and
opposing counsel. However, Appellant did not present these arguments to the trial
court. Rule 33.1 of the Texas Rules of Appellate Procedure requires that a party
lodge a “timely request, objection, or motion” to preserve a complaint for appellate
review. TEX. R. APP. P. 33.1(a)(1); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d
278, 280 (Tex. 1999). Appellate courts are not authorized to consider issues not
properly raised by parties at the trial court level. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 577 (Tex. 2006). Complaints cannot be raised for the first time on
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appeal, as Appellant attempts to do here. See State Office of Risk Mgmt. v. Martinez,
539 S.W.3d 266, 273 (Tex. 2017); Tex. Dep’t of Protective & Regulatory Servs. v.
Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (constitutional claim on appeal was waived
by failure to raise complaint at trial).
A no-answer default judgment is properly granted if (1) the plaintiff files a
petition that states a cause of action and invokes the trial court’s jurisdiction, (2) the
petition gives fair notice to the defendant, and (3) the petition does not disclose any
invalidity of the claim on its face. Paramount Pipe & Supply Co. v. Muhr, 749
S.W.2d 491, 494 (Tex. 1988). A no-answer default results in the defaulting
defendant’s admission of all facts properly pleaded in the petition (except for the
amount of unliquidated damages). Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d
922, 930 (Tex. 2009) (per curiam). Thus, if the facts set out in the petition allege a
cause of action, the default judgment conclusively establishes the defendant’s
liability. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984).
Appellant primarily contends that he was not properly served. Strict
compliance with the procedural rules governing citation and return of service must
affirmatively appear on the record if a default judgment is to withstand direct attack.
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); see
also TEX. R. CIV. P. 99, 103, 105, 106, 107. When reviewing a default judgment,
we make no presumptions in favor of valid issuance, service, and return of citation.
Primate Constr., 884 S.W.2d at 152. Whether service strictly complied with the
rules is a question of law that we review de novo. Furst v. Smith, 176 S.W.3d 864,
868–70 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
As previously noted, Appellee filed a motion for substituted service after
several failed attempts at serving Appellant in person. Appellant appears to be
asserting that the failure to personally serve him results in a lack of proper service.

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In advancing this argument, Appellant appears to be asserting that substituted service
is ineffectual to constitute proper service. We disagree.
“Texas law prefers personal service over substituted service.” Vespa v. Nat’l
Health Ins. Co., 98 S.W.3d 749, 751 (Tex. App.—Fort Worth 2003, no pet.);
Mylonas v. Tex. Commerce Bank–Westwood, 678 S.W.2d 519, 522 (Tex. App.—
Houston [14th Dist.] 1984, no writ). However, Texas law allows substituted service
if personal service fails. State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298,
298–99 (Tex. 1993) (per curiam). As noted by the Texas Supreme Court in Costley,
“[s]ubstituted service exists to allow plaintiffs to effect service where proof of actual
notice under Rule 106(a) is impractical.” 1 Id. at 298. Accordingly, valid service by
substituted service is effective to constitute proper service.
When substituted service occurs, it must strictly comply with the order
authorizing it because the order “is the sole basis of authority authorizing substituted
service.” Taylor v. State, 293 S.W.3d 913, 916 (Tex. App.—Austin 2009, no pet.);
Vespa, 98 S.W.3d at 752. Rule 106(b) governs substituted service. It provides:
Upon motion supported by affidavit stating the location of the
defendant’s usual place of business or usual place of abode or other
place where the defendant can probably be found and stating
specifically the facts showing that service has been attempted under
either (a)(1) [personal service] or (a)(2) [registered or certified mail] at
the location named in such affidavit but has not been successful, the
court may authorize service

(1) by leaving a true copy of the citation, with a
copy of the petition attached, with anyone over sixteen
years of age at the location specified in such affidavit, or

1
As noted in Costley, a plaintiff that utilizes substituted service pursuant to an order from the trial
court is not required to provide proof of actual notice to the defendant because such a requirement would
frustrate Rule 106(b)’s purpose. 868 S.W.2d at 299.
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 (2) in any other manner that the affidavit or other
evidence before the court shows will be reasonably
effective to give the defendant notice of the suit.
TEX. R. CIV. P. 106(b). When a trial court orders substituted service under Rule 106,
the only authority for the substituted service is the order itself. Vespa, 98 S.W.3d at
752. As a result, any deviation from the trial court’s order necessitates a reversal of
the default judgment based on service. Id. When citation is made by an alternative
method of service under Rule 106(b), proof of service must be made in the manner
ordered by the court. TEX. R. CIV. P. 107. The return of service is prima facie
evidence of how service was performed. Vespa, 98 S.W.3d at 752.
As noted previously, the trial court’s order permitting substituted service
provided that service could be accomplished by posting citation “to the front door or
entry gate at [Appellant’s] usual place of abode: 7820 CR 327, Blanket, TX 76432.”
In his proof of service, Starzel averred that he executed service at 7820 CR 327,
Blanket, Texas 76432 by posting to Appellant’s gate. Thus, Starzel’s affidavit
attached to the return of service established that substituted service was
accomplished on Appellant under Rule 106 in a manner and at the address specified
in the order for substituted service.
Appellant contends that Starzel did not post anything on his gate or his
property. However, the trial court confirmed with Appellant that his address was
7820 CR 327, Blanket, Texas 76432, and Starzel’s affidavit stated that he posted
citation at this address. Appellant’s statement was evidence that service pursuant to
the trial court’s order for substituted service was reasonably effective to give
Appellant notice of the suit. See Costley, 868 S.W.2d at 299. Furthermore,
Appellant’s statement acknowledging that he spoke with Starzel about Starzel’s
efforts to serve him indicates that Appellant was aware that Appellee was trying to
serve him. Accordingly, the trial court did not err by denying Appellant’s motion to

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set aside the default judgment on the basis that Appellee did not properly serve
Appellant.
Appellant prepared his motion to set aside the default judgment on a form
provided by TexasLawHelp.org. The form provided two choices for Appellant to
check: “Check box 5a or box 5b.” Box 5a applied to a claim of “Lack of Notice.”
Appellant checked box 5a on the form, indicating that “[he] did not file an answer
because [he] was not properly served with citation.” Appellant also wrote under box
5b that he had a meritorious defense. His meritorious defense concerned his claim
that the manufactured home had an improperly installed roof. However, he did not
check box 5b indicating that he did not file an answer because of accident or mistake.
A meritorious defense is one of the three elements for an equitable motion for
new trial under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.
1939). Under Craddock, a trial court must set aside a default judgment and grant a
new trial if (1) the failure of the defendant to answer or appear was not intentional
or the result of conscious indifference on his part, but was due to a mistake or an
accident; (2) the motion for new trial sets up a meritorious defense; and (3) the
granting of the motion for new trial will occasion no delay or otherwise work an
injury to the plaintiff. Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d
307, 309 (Tex. 2012) (citing Craddock, 133 S.W.2d at 126). We review a trial
court’s refusal to set aside a default judgment and grant an equitable motion for new
trial for abuse of discretion. Lerma, 288 S.W.3d at 926. When, as here, no findings
of fact and conclusions of law are filed, the denial of a motion to set aside the default
judgment and for new trial must be upheld on any legal theory supported by the
evidence. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).
As noted above, Appellant did not assert that his failure to answer or appear
was not intentional but was due to an accident or mistake. In considering the first
prong of the Craddock test—whether the failure to answer was not intentional, or
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the result of conscious indifference, but was due to a mistake or accident—we must
look to the knowledge and acts of the defendant as shown by all the evidence
contained in the record before the court. Dir., State Emps. Workers’ Comp. Div. v.
Evans, 889 S.W.2d 266, 269 (Tex. 1994). Appellant acknowledged that he spoke
with Starzel concerning the attempt to serve him with process. In light of this
conversation and Appellant’s knowledge that Starzel was trying to serve him, the
trial court could have reasonably found that Appellant’s failure to answer was the
result of conscious indifference, thereby failing to satisfy the first prong of the
Craddock test. Because Appellant failed to satisfy the first prong of Craddock, the
trial court did not abuse its discretion by denying Appellant’s motion for new trial.
Accordingly, we do not consider whether Appellant had a meritorious defense. We
overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

August 8, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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