                            NUMBER 13-08-00039-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


GUILLERMO GONZALEZ,                                                         Appellant,

                                           v.

EUGENIO M. TAPIA,                                                           Appellee.


              On appeal from the County Court at Law No. 2
                      of Cameron County, Texas.


                                   OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Vela
                   Opinion by Chief Justice Valdez

      Appellant, Guillermo Gonzalez, appeals from an order denying his petition for bill

of review. By two issues, Gonzalez contends that the trial court erred (1) by allowing

appellee, Eugenio M. Tapia, to amend proof of service of citation after the trial court’s

plenary power had expired, and (2) by denying his petition for bill of review because the
default judgment was rendered after invalid service. We affirm.

                                              I. BACKGROUND

        On September 29, 2006, Tapia sued Gonzalez for breach of contract.1 On October

2, 2006, Gonzalez was personally served with citation by Able Bentancourt Jr., a private

process server, and Gonzalez signed the return of citation. The return of citation, however,

was not verified. But see TEX . R. CIV. P. 107 (“The return of citation by an authorized

person shall be verified.”). Gonzalez never filed an answer, and on November 13, 2006,

the trial court rendered a default judgment for $11,280 in damages, post-judgment interest,

and $1,000 in attorney’s fees. The clerk mailed a notice of default judgment on December

6, 2006. See id. 239a. On January 5, 2007, Gonzalez filed a motion for new trial, which

the trial court denied on February 15, 2007.

        On April 5, 2007, a writ of execution was issued. A notice of sheriff’s sale on a

parcel of Gonzalez’s nonexempt real property was advertised on the courthouse door, and

on June 5, 2007, Eric Williams and Dale Robertson purchased the property for $14,499.50.

        On August 10, 2007, Gonzalez filed a petition for bill of review, asserting that the

default judgment was “void” because the clerk failed to immediately and properly notify him

under Rule 239a of the Texas Rules of Civil Procedure. See id. Attached to his petition

was an affidavit by Gonzalez, which, in relevant part, states:

        I am the Defendant in Cause No. 2006-CCL-1559-B. When I got served with
        papers by Mr. Tapia I immediately went to Mr. Kowalski’s office and asked
        him if he could handle it. He said he would look into it but I understood he
        1
          In his petition, Tapia, a realtor, alleged that: (1) Gonzalez, through an exclusive listing agreem ent,
hired him to sell a piece of com m ercial real estate; (2) pursuant to the agreem ent, he found a buyer; (3) on
Decem ber 15, 2005, Gonzalez and Irm a Garza, the buyer, executed an earnest m oney contract for $188,000;
and (4) G onzalez refused to close the transaction. Tapia asserted that Gonzalez breached the listing
agreem ent and earnest m oney contract, and he prayed for dam ages of $11,280, which represented a six-
percent com m ission owed to him under the listing agreem ent, interest, and attorney’s fees.
                                                       2
       was going to take care of it. In late December I found out a no answer
       default judgment had been rendered against me since November 13, 2006
       and I contacted Mr. Kowalski. I wanted to know why he never filed an
       answer on my behalf and he explained that he was under the impression that
       I no longer needed his services because I never went back to see him to
       discuss if he had looked into the matter or not. Nonetheless, as soon as we
       both realized our mistake we filed a Motion for New Trial relying on the notice
       from the Court dated December 6, 2006.

Gonzalez also asserted that his failure to present a defense was the result of an accident

and not the result of his fault or negligence.

       Tapia answered the bill of review petition by arguing that Gonzalez waived his right

to obtain relief because he failed to pursue a direct or restricted appeal. See generally,

TEX . R. APP. P. 30.

       At a November 7, 2007 hearing on Gonzalez’s petition for bill of review, Gonzalez

argued that the clerk mailed the notice of default judgment late, thereby preventing him

from timely filing a motion for new trial, and that Bentancourt’s return of citation was not

properly verified. See TEX . R. CIV. P. 107. Tapia objected to the return of citation

argument on the basis that it was not pleaded.         Additionally, Tapia reasserted the

argument raised in his answer, and he also argued that Gonzalez’s signature on the

citation constituted a waiver of citation. The trial court continued the hearing so that the

parties could submit legal memorandums. Gonzalez filed a memorandum of law. Tapia

filed a motion to amend proof of service that included an affidavit by Bentancourt, executed

on December 12, 2007, in which Bentancourt averred that he personally delivered Tapia’s

original petition to Gonzalez on October 2, 2006.

       On December 11, 2007, the trial court granted Tapia’s motion to amend proof of

service and denied the bill of review. This appeal followed.


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                                  II. STANDARD OF REVIEW

       We review the trial court’s grant or denial of a bill of review for an abuse of

discretion, and every presumption is indulged in favor of the court’s ruling. Interaction, Inc.

v. State, 17 S.W.3d 775, 778 (Tex. App.–Austin 2000, pet. denied). We review the trial

court’s ruling on pleadings for an abuse of discretion. Hardin v. Hardin, 597 S.W.2d 347,

349-50 (Tex. 1980). A trial court abuses its discretion if it misapplies the law to established

facts. State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975); In re Talco-Bogata

Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d 343, 347 (Tex. App.–Texarkana

1999, no pet.).

                              III. AMENDING PROOF OF SERVICE

       By his second issue, Gonzalez argues that the trial court erred by granting Tapia’s

motion to amend proof of service because the trial court’s plenary power expired before

the motion was filed. Tapia responds by arguing that Rule 118 of the Texas Rules of Civil

Procedure allows a trial court to amend proof of service at any time, even after the trial

court’s plenary power has expired.

       Before a default judgment is properly rendered, the record must reflect that the trial

court has jurisdiction and that the case is ripe for judgment. Finlay v. Jones, 435 S.W.2d

136, 138 (Tex.1968). When determining whether the case is ripe for judgment, the trial

judge has a mandatory duty to determine that the defendant was duly served with citation

and has no answer on file. Id. at 138-39. Unless the record affirmatively shows, at the

time the default judgment is entered, either an appearance by the defendant, proper

service of citation on the defendant, or a written memorandum of waiver, the trial court

does not have in personam jurisdiction to enter a default judgment against the defendant.

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Am. Universal Ins. Co. v. D.B. & B., Inc., 725 S.W.2d 764, 766 (Tex.App.–Corpus Christi

1987, writ ref'd n.r.e.).

       Rule 107 of the Texas Rules of Civil Procedure states in relevant part:

       The return of the officer or authorized person executing the citation shall be
       endorsed on or attached to the same; it shall state when the citation was
       served and the manner of service and be signed by the officer officially or by
       the authorized person. The return of citation by an authorized person shall
       be verified.

Tex. R. Civ. P. 107 (emphasis added). In Carmona v. Bunzl Distribution this Court,

following two of its sister courts, held that a private process server’s return of citation must

strictly comply with the rules of civil procedure or service of process will be deemed invalid.

76 S.W.3d 566, 569 (Tex. App.–Corpus Christi 2002, no pet.); see Garza v. Zavala, 905

S.W.2d 312, 313 (Tex.App.–El Paso 1995, no writ); McGraw-Hill, Inc. v. Futrell, 823

S.W.2d 414, 415-16 (Tex.App.–Houston [1st Dist.] 1992, writ denied). Gonzalez argues

that our holding in Carmona controls this case and that reversal is required.

       Tapia disagrees, and he posits that Walker v. Brodhead supports the trial court’s

decision to amend the process server’s proof of service after its plenary power has expired.

828 S.W.2d 278, 282 (Tex. App.–Austin 1992, writ denied). We agree. The Walker court

held that Rule 118 allows a trial court to grant an amendment to a process server’s proof

of service twenty-two months after the default judgment had become final and that the

amendment related back to the original service date. Id. at 281-82. As support for its

decision, the court pointed to Rule 118's opening phrase—“[a]t any time”—and the

supreme court case of Higginbotham v. General Life and Accident Insurance Company.

See Tex. R. Civ. P. 118; 796 S.W.2d 695 (Tex. 1990).

       Rule 118 states:

                                               5
        At any time in its discretion and upon such notice and on such terms as it
        deems just, the court may allow any process or proof of service thereof to be
        amended, unless it clearly appears that material prejudice would result to the
        substantial rights of the party against whom the process issued.

TEX . R. CIV. P. 118. In Higginbotham, the supreme court held that an order denying a

default judgment debtor’s motion for new trial implicitly allowed the underlying plaintiffs to

amend proof of citation through affidavit testimony that was submitted at the hearing on the

default-judgment debtor’s timely-filed motion for new trial. 796 S.W.2d at 696-97.

        Gonzalez attempts to distinguish Walker by arguing that in this case he was

wronged by: (1) the clerk’s tardy notice of a default judgment, (2) the execution and sale

of his real property upon what he contends is a “void judgment,”2 and (3) the fact that the

amendment to the proof of service was made after the default judgment was executed.

These are certainly unfortunate events. However, the reality is that Gonzalez could have

availed himself of an out-of-time motion for new trial once he received the clerk’s notice,

but he did not do so. See TEX . R. CIV. P. 306a. Gonzalez’s property being sold before the

amendment to the proof of service was ordered does not change the fact that he was

served with citation, consulted an attorney, and allowed a default judgment to be taken.

In other words, the timing of the execution and sale did not diminish the notice that

Gonzalez was afforded. See Walker, 828 S.W.2d at 282 (providing that “as a matter of

law the trial court was authorized to allow the amendment of the officer’s return to reflect

the service actually had and to allow verification of the facts contained therein.”). Thus,

nothing in the record indicates that Gonzalez’s substantial rights were materially

prejudiced. See Tex. R. Civ. P. 118 (providing that a trial court may at any time allow proof


        2
          Although Gonzalez contends that the default judgm ent in this case was void, he does not cite any
authority or develop an argum ent as to how the judgm ent was void rather than voidable. See T EX . R. A PP . P.
38.1(i).
                                                       6
of service to be amended “unless it clearly appears that material prejudice would result to

the substantial rights of the party against whom the process issued.”).

       Because the Texas Supreme Court’s opinion in Higginbotham and the Austin Court

of Appeals opinion in Walker apply, Gonzalez’s second issue is overruled. Furthermore,

because the trial court amended the proof of service, the default judgment was not

rendered on invalid service, as Gonzalez argues in his first issue. Accordingly, Gonzalez’s

first issue is overruled.

                                       IV. CONCLUSION

       The trial court’s denial of Gonzalez’s petition for bill of review is affirmed.


                                                   ROGELIO VALDEZ
                                                   Chief Justice


Opinion delivered and filed on
this the 23rd day of April, 2009.




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