AFFIRM; and Opinion Filed April 30, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-01722-CV

                        NATIONSTAR MORTGAGE, LLC,
              F/K/A CENTEX HOME EQUITY COMPANY, LLC, Appellant
                                      V.
                  TURTLE CREEK 3838 #1816 LAND TRUST, Appellee

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-05443-A

                             MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Lewis
                                    Opinion by Justice Lewis
       In this restricted appeal, appellant Nationstar Mortgage, LLC (“Nationstar”) challenges

the trial court’s default judgment in favor of appellee Turtle Creek 3838 #1816 Land Trust

(“Turtle Creek”). Nationstar contends (1) Turtle Creek’s pleadings are insufficient to establish

its superior right to the property at issue, (2) a misnomer in the pleadings invalidates the default

judgment, and (3) the trial court erred in granting the default judgment. Because the issues in

this appeal involve the application of well-settled principles of law, we issue this memorandum

opinion. See TEX. R. APP. P. 47.4. We affirm the trial court’s judgment.

       Turtle Creek purchased a condominium (the “Condominium”) in a foreclosure sale,

when the Condominium’s homeowners’ association foreclosed on its assessment lien. At the

time of    Turtle Creek’s purchase, Nationstar held a deed of trust on the Condominium;
Nationstar’s deed of trust was the second deed of trust filed on the Condominium. In an effort to

quiet title, Turtle Creek filed suit, seeking a declaration that its property interest in the

Condominium was superior to Nationstar’s interest and that Nationstar’s lien was extinguished

by the foreclosure. Turtle Creek urged two grounds in support of its claim. First, it alleged the

terms of the Condominium’s homeowners’ association Declaration made the association’s

assessment lien superior to all but first mortgage liens. Second, it alleged Nationstar did not own

or hold the note secured by the deed of trust and, therefore, could not enforce the lien rights

represented by the deed of trust.

       Nationstar was served with the suit, but it failed to answer or otherwise appear. Turtle

Creek filed a motion for entry of default judgment with a supporting affidavit. The trial court

signed a default judgment declaring: Turtle Creek was the owner of the Condominium; Turtle

Creek’s title was not subject to any lien or encumbrance, save for taxes and assessments;

Nationstar owned no interest in the Condominium; and Nationstar’s deed of trust was “hereby

terminated, discharged and unenforceable.” Nationstar did not file any post-trial motions or

requests for findings of fact and conclusions of law, but it did timely file this restricted appeal.

       A restricted appeal is available when (1) it is filed within six months after the trial court

signed the judgment; (2) by a party to the suit; (3) who, either in person or through counsel, did

not participate at trial and did not timely file any post-judgment motions or requests for findings

of fact and conclusions of law; and (4) error is apparent from the face of the record. Alexander v.

Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the fourth element—whether error is

apparent on the face of the record—is disputed in this appeal. In a restricted appeal, the face of

the record consists of all papers on file in the appeal. Texas Dep’t of Pub. Safety v. Foster, 398

S.W.3d 887, 890 (Tex. App.—Dallas 2013, no pet.).




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       In its first issue, Nationstar challenges both of Turtle Creek’s grounds for declaratory

judgment. Nationstar concedes that by failing to answer it admitted all facts properly pleaded in

Turtle Creek’s petition. See Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex.

2009). Thus, Nationstar admitted the Declaration provides the assessment lien was superior to

all but first mortgage liens.     However, Nationstar contends Turtle Creek failed to allege

additional facts that would establish the Declaration was the proper authority for determining

priority of interests. Nationstar cites to the Uniform Condominium Act (the “Act”), and argues

Turtle Creek’s pleading is insufficient to establish that the Act does not govern this issue.

       The Act provides that it governs a condominium in Texas if its declaration was recorded

before January 1, 1994. TEX. PROP. CODE ANN. § 82.002(a) (West Supp. 2013). And when the

Act governs, priority of a homeowners’ association assessment lien is governed by section

82.113, which provides:

       The association’s lien for assessments has priority over any other lien except:

               (1) a lien for real property taxes and other governmental assessments or
               charges against the unit unless otherwise provided by Section 32.05, Tax
               Code;

               (2) a lien or encumbrance recorded before the declaration is recorded;

               (3) a first vendor’s lien or first deed of trust lien recorded before the date
               on which the assessment sought to be enforced becomes delinquent under
               the declaration, bylaws, or rules; and

               (4) unless the declaration provides otherwise, a lien for construction of
               improvements to the unit or an assignment of the right to insurance
               proceeds on the unit if the lien or assignment is recorded or duly perfected
               before the date on which the assessment sought to be enforced becomes
               delinquent under the declaration, bylaws, or rules.

Id. § 82.113(b). Nationstar argues Turtle Creek’s failure to plead the Declaration’s filing date

renders its pleading insufficient to support the court’s declaratory judgment. The Declaration’s

filing date is the only specific fact Nationstar argues is necessary to, but absent from, Turtle

Creek’s pleadings.
                                                 –3–
       Nationstar’s argument fails for two reasons. Initially, the pleading’s assertion that the

Declaration governs priority of interests is not erroneous on its face. It is not incorrect standing

alone, and no other assertion in the pleading contradicts it. The only way Turtle Creek’s

assertion could be proven erroneous is by introduction of evidence outside the record, and

Nationstar may not offer such defensive evidence in a restricted appeal. See Ginn v. Forrester,

282 S.W.3d 430, 432 (Tex. 2009) (“When extrinsic evidence is necessary to challenge a

judgment, the appropriate remedy is by motion for new trial or by bill of review filed in the trial

court so that the trial court has the opportunity to consider and weigh factual evidence.”).

Likewise, in the absence of evidence outside the record, Nationstar cannot establish that a

different order of priority would be established under the Act. Proof of any of the four statutory

exceptions to assessment-lien priority would require extrinsic evidence from Nationstar, which is

not permitted in this restricted appeal. See TEX. PROP. CODE ANN. § 82.113(b); Ginn, 282

S.W.3d at 432.

       Nationstar analogizes this case to one in which a plaintiff fails to plead facts establishing

a duty owed by the defendant, or pleads facts that—on their face—negate a duty to the

defendant. Such a pleading cannot support a default judgment. See, e.g., Schieffer v. Patterson,

440 S.W.2d 124, 126 (Tex. App.—Austin 1969, no writ); see also Doubletree Hotels Corp. v.

Person, 122 S.W.3d 917, 921–922 (Tex. App.—Corpus Christi 2003, no pet.). But Turtle Creek

pleaded a claim for declaratory judgment, offering two arguments for the declarations it sought.

It was not, as Nationstar claims, impossible for the trial court to determine whether either of

those arguments served as a basis for legal relief for Turtle Creek. The record before us

establishes how Turtle Creek obtained its interest in the property, the nature of Nationstar’s deed

of trust, and the Declaration’s resolution of the priority issue. On its face, the record contains no
                                                –4–
ambiguity, contradiction, or misstatement of the law.                                       We reject Nationstar’s argument

concerning the inadequacy of Turtle Creek’s pleadings, and we conclude Turtle Creek’s

pleadings are sufficient to support the default judgment. Given this resolution, we need not

address Turtle Creek’s second argument for judgment, i.e., the fact that Nationstar no longer

owns or holds the note secured by the deed of trust. We decide Nationstar’s first issue against it.

           In its second issue, Nationstar argues that Turtle Creek misnamed itself in the caption of

this lawsuit and, therefore, the default judgment should be reversed. Nationstar asks us to take

judicial notice of an online document from the Dallas County Appraisal District. The document

purportedly identifies Turtle Creek as “Turtle Creek 3883 #1816 Land Trust,” rather than as

“Turtle Creek 3838 #1816 Land Trust,” the name used in this lawsuit. There is no misnomer

apparent on the face of the record. We decline Nationstar’s request to expand the record by

taking judicial notice of evidence not properly before us in a restricted appeal. 1 Because the face

of the record does not show misnomer, we need not address either whether Nationstar was

misled, or what the effect of a misnomer would be on the default judgment.                                                       We decide

Nationstar’s second issue against it as well.

           Nationstar has failed to identify error on the face of the record in this case. We affirm the

trial court’s judgment.




                                                                            /David Lewis/
                                                                            DAVID LEWIS
                                                                            JUSTICE

121722F.P05

     1
         Nationstar cites to Norman Commc’ns, Inc. v. Tex. Eastman Co., 956 S.W.2d 68, 70–71 (Tex. App.—Tyler 1997), rev’d in part on other
grounds, 955 S.W.2d 269 (Tex. 1997), in support of its request. But we see a clear distinction between taking judicial notice of the trial court’s
local rules, and taking judicial notice of an online record offered as defensive evidence.



                                                                      –5–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

NATIONSTAR MORTGAGE, LLC, F/K/A                        On Appeal from the 14th Judicial District
CENTEX HOME EQUITY COMPANY,                            Court, Dallas County, Texas
LLC, Appellant                                         Trial Court Cause No. DC-12-05443-A.
                                                       Opinion delivered by Justice Lewis.
No. 05-12-01722-CV         V.                          Justices Francis and Lang-Miers
                                                       participating.
TURTLE CREEK 3838 #1816 LAND
TRUST, Appellee

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

        It is ORDERED that appellee TURTLE CREEK 3838 #1816 LAND TRUST recover its
costs of this appeal from appellant NATIONSTAR MORTGAGE, LLC, F/K/A CENTEX
HOME EQUITY COMPANY, LLC.


Judgment entered this 30th day of April, 2014.




                                                       /David Lewis/
                                                       DAVID LEWIS
                                                       JUSTICE




                                                 –6–
