Affirmed and Opinion Filed June 3, 2015




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01368-CV

 FREDIS BENITEZ, MARGARITA BENITEZ, AND ROBERTO VIERA-SEGURA DBA
    VIERA'S BODY SHOP/VIERA'S KUSTOMS/VIERA'S KUSTOMZ, Appellants
                                 V.
                       CITY OF DALLAS, Appellee

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                             Trial Court Cause No. 13-03671

                              MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Evans
                                   Opinion by Justice Bridges
       Fredis Benitez, Margarita Benitez, and Roberto Viera-Segura d/b/a Viera’s Body

Shop/Viera’s Kustoms/Viera’s Kustomz appeal the trial court’s default judgment in favor of the

City of Dallas. In two points of error, appellants argue they are entitled to reversal of the default

judgment because they were not properly served under rule of civil procedure 107 and the

evidence does not support the trial court’s award of $100,000 damages. We affirm the trial

court’s judgment.

       On April 2, 2013, the City filed its original petition alleging appellants were using their

property illegally for outside salvage and reclamation and vehicle or engine repair or

maintenance. In addition, the City alleged numerous health and safety violations. The City

sought an injunction under section 211.012(c) of the local government code enjoining appellants’
illegal land uses alleged in the petition. Pursuant to sections 54.016 and 54.018 of the local

government code, the City sought civil penalties of $1000 per day per violation.

       On April 3 and 4, 2013, the process server served appellants individually with a copy of

the petition and citation. On May 8, 2013, the City filed a motion for leave to file amended

returns of service pursuant to rule of civil procedure 118. The City stated it sought leave to

amend “in order to strictly comply with Texas Rule of Civil Procedure 107 by adding the process

server’s certification expiration date and a more precise description of the pleading served.

       Appellants did not file an answer. The City filed a motion for default judgment, and the

trial court set the matter for a hearing on June 20, 2013. At the hearing, Kate Lawler, a code

officer for the City, testified appellants did not have a specific use permit which would have

permitted them to “have outside salvage reclamation.” The City introduced photographs of

appellant’s property, and Lawler testified the same violations as were alleged in the City’s

petition were still present on a subsequent investigation on June 18, 2013. Counsel stated

appellants committed nine health and safety violations over seventy-seven days, entitling the

City to $693,000 in civil penalties. Nevertheless, counsel for the City requested $100,000 in

civil penalties. The trial court entered a default judgment granting the City certain injunctive

relief and awarding $100,000 in civil penalties. Appellants filed a motion to set aside the default

judgment and for new trial, which was overruled by operation of law. This appeal followed.

       In their first issue, appellants argue they are entitled to a reversal of the default judgment

and a remand for new trial because the record reflects the City failed to strictly comply with rule

of civil procedure 107. Specifically, appellants argue “the amended return of service was not

located on the citation or attached to it.” Appellants argue the first sentence of rule 107 “is

framed in mandatory terms: the return of the officer or authorized person executing the citation

shall be endorsed on or attached to the same.” However, appellants cite the former rule 107.

                                                –2–
The current version of rule 107, effective since January 1, 2012, states: “The officer or

authorized person executing the citation must complete a return of service. The return may, but

need not, be endorsed on or attached to the citation.” TEX. R. CIV. P. 107. Thus, Rule 107 did

not require the amended return of service in this case to be attached to the citation. See id. We

overrule appellants’ first issue.

        In their second issue, appellants argue they are entitled to a reversal of the default

judgment and a remand for new trial because there is no evidence or insufficient evidence to

support the award of $100,000 in civil penalties.

        We will sustain a legal sufficiency or “no evidence” challenge if the record shows one of

the following: (1) a complete absence of a vital fact; (2) rules of law or evidence bar the court

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the

opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In

reviewing a legal sufficiency complaint, we consider the evidence in the light most favorable to

the prevailing party, crediting favorable evidence if a reasonable fact finder could, and

disregarding contrary evidence unless a reasonable fact finder could not. Id. at 827. A legal

sufficiency challenge fails if there is more than a scintilla of evidence to support the finding.

Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006). When confronted by both

a legal and factual sufficiency challenge, an appellate court must first review the legal

sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).

In reviewing a factual sufficiency challenge, we examine all the evidence.           Castanon v.

Monsevais, 703 S.W.2d 295, 297 (Tex. App.—San Antonio 1985, no writ). We will reverse only

if the finding is against the great weight and preponderance of the evidence. Id.




                                               –3–
       When a no-answer default judgment is entered against a party on an unliquidated claim,

the non-answering party is deemed to have admitted all facts properly pleaded, except for the

amount of damages. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per

curiam); Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999). 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).

       Thus, appellants are deemed to have admitted the health and safety violations alleged in

the City’s petition.   As further set out in the City’s petition, section 54.017 of the local

government code permits an imposition of $1000 per violation per day. See TEX. LOC. GOV’T

CODE ANN. § 54.017 (West 2008). Lawler testified that the health and safety violations at

appellants’ property were still present on June 18, 2013. Counsel for the City argued there were

nine violations over seventy-seven days, entitling the City to $693,000 in civil penalties.

Nevertheless, counsel for the City requested $100,000 in civil penalties. Thus, the trial court’s

award of $100,000 in civil penalties is actually less than it could have properly awarded,

considering the number of violations.       We conclude the evidence is legally and factually

sufficient to support the trial court’s award. See City of Keller, 168 S.W.3d at 810; Castanon,

703 S.W.2d at 297. We overrule appellant’s second issue.

       We affirm the trial court’s judgment.



131368F.P05

                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE




                                                –4–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

FREDIS BENITEZ, MARGARITA                            On Appeal from the 14th Judicial District
BENITEZ, AND ROBERTO VIERA-                          Court, Dallas County, Texas
SEGURA DBA VIERA'S BODY                              Trial Court Cause No. 13-03671.
SHOP/VIERA'S KUSTOMS/VIERA'S                         Opinion delivered by Justice Bridges.
KUSTOMZ, Appellant                                   Justices Lang and Evans participating.

No. 05-13-01368-CV         V.

CITY OF DALLAS, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee CITY OF DALLAS recover its costs of this appeal from
appellants FREDIS BENITEZ, MARGARITA BENITEZ, AND ROBERTO VIERA-SEGURA
DBA VIERA'S BODY SHOP/VIERA'S KUSTOMS/VIERA'S KUSTOMZ.


Judgment entered June 3, 2015.




                                               –5–
