                         NUMBER 13-18-00061-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DOLORES QUIROGA AND
LA PALANCA, LLC D/B/A
DICKEY’S BARBEQUE PIT,                                                    Appellants,

                                          v.

EL PISTOLON II, LTD,                                                         Appellee.


                   On appeal from the 93rd District Court
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION

            Before Justices Benavides, Hinojosa, and Perkes
                Memorandum Opinion by Justice Perkes

      Appellee El Pistolon II, Ltd. obtained a default judgment on its breach of contract

claims against appellants Dolores Quiroga and La Palanca, LLC d/b/a Dickey’s Barbeque

Pit (Dickey’s). The trial court denied appellants’ bill of review. On appeal, Dickey’s
contends that service was defective because it was not served at the address designated

for its registered agent. Both appellants contend that the trial court erred by applying

the wrong evidentiary standard to the bill of review. We affirm.

                                    I. BACKGROUND

      On January 17, 2012, appellee filed a lawsuit against appellants to recover

damages for breach of a commercial lease agreement.            Dolores Quiroga allegedly

signed the lease agreement as the authorized agent of Dickey’s and as personal

guarantor. The next day, the Hidalgo County District Clerk issued a citation to be served

on Dolores Quiroga at 1711 Lauren Lane, Mission, Texas 78572.

      On February 14, 2012, the trial court granted appellee’s motion for substituted

service of process. The trial court ordered that service be had on:

              Defendant DOLORES QUIROGA by leaving a true copy of the
      citation and the attached Petition by attaching said citation and petition on
      the front door of Dolores Quiroga’s usual place of abode at 2903 Santa
      Olivia, Mission, Texas 78572-7602 and by any other manner that will be
      reasonably effective to give the Defendant notice of suit; and

              Defendant LA PALANCA, LLC D/B/A DICKEY’S BARBECUE by
      leaving a true copy of the citation and the attached petition by attaching said
      citation and petition on the front door of La Palanca’s registered agent,
      Dolores Quiroga’s usual place of abode at 2903 Santa Olivia, Mission,
      Texas 78572-7602.

An officer’s return was filed several days later stating that Dolores Quiroga was served

“in person” at the Santa Olivia address.

      Approximately fourteen months later, on April 5, 2013, the trial court granted

appellee’s motion for default judgment. Since the damages were unliquidated, the court

considered evidence on damages and awarded appellee the sum of $432,819.13.


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       On October 17, 2016, appellants filed their petition for bill of review, which was

assigned to the same trial court that granted the default judgment, but under a new cause

number. Appellants acknowledged that service of process was executed in compliance

with the order for substituted service but contended that:          (1) neither party received

notice of the lawsuit; (2) each had a meritorious defense because appellee mitigated its

damages after the judgment; and (3) appellee knew of but failed to serve the parties at

their correct addresses.

       More specifically, Dickey’s acknowledged that Dolores Quiroga was its registered

agent but asserted that the correct address for such purposes was 1711 Lauren Lane,

Mission, Texas 78572, not her purported home address at 2903 Santa Olivia, Mission,

Texas 78572-7602. Dolores Quiroga implicitly denied that the Santa Olivia address was

her actual home address, alleging “[appellee] knew the whereabouts of [her] residence

and or persons who knew her whereabouts but wholly failed to serve her.”

       Attached to appellants’ petition were copies of the order granting substituted

service, a citation addressed to Dolores Quiroga individually and the corresponding

officer’s return, and the default judgment. Also attached to the petition was an affidavit

by Dolores Quiroga in which she attests that she “was never given a copy of the citation

and petition [and that she] . . . found out about the lawsuit after judgment was taken.”

       An initial hearing was held on April 3, 2017. Without hearing any evidence, the

trial court ordered the parties to mediation. After a final hearing on December 20, 2017,

the trial court denied the bill of review, reciting in its order that it considered “the petition,

the response, the evidence, and the arguments of counsel.” This appeal ensued.


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                     II. STANDARD OF REVIEW AND APPLICABLE LAW

       A bill of review is an independent, equitable action to set aside a judgment that is

no longer appealable or subject to a motion for new trial. Caldwell v. Barnes (Caldwell

II), 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) (citing Baker v. Goldsmith, 582 S.W.2d

404, 406 (Tex. 1979)). “We review the granting or denial of a bill of review under an

abuse of discretion standard.” Temple v. Archambo, 161 S.W.3d 217, 224 (Tex. App.—

Corpus Christi–Edinburg 2005, no pet.) (citing Manley v. Parsons, 112 S.W.3d 335, 338

(Tex. App.—Corpus Christi–Edinburg 2003, pet. denied)).           A trial court abuses its

discretion if its actions were arbitrary and unreasonable or if it acted without reference to

any guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985)). However, when the issue raised concerns a question

of law, such as the legal sufficiency of the evidence, we review the trial court’s decision

de novo. See id. (citing Goldsmith, 582 S.W.2d at 409).

       Generally, a party seeking a bill of review must allege and prove that (1) it had a

meritorious defense to the underlying cause of action, (2) which it was prevented from

making because of fraud, accident, or a wrongful act by the opposite party, (3) that was

untainted by any fault or negligence of its own. Caldwell II, 154 S.W.3d at 96 (citing

Goldsmith, 582 S.W.2d at 406–08). When a bill of review is based solely on a claim of

non-service, however, the defendant is only required to prove the third element. Id. at

96–97. An individual who is not served with process cannot be at fault or negligent in

allowing a default judgment to be rendered; therefore, the third element is conclusively

established if the defendant proves non-service. Id. at 97 (citing Caldwell v. Barnes


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(Caldwell I), 975 S.W.2d 535, 537 (Tex. 1998)).

        An officer’s return is prima facie evidence of the facts of service, regardless of

whether those facts are recited in a form or filled in by the officer.   Primate Constr., Inc.

v. Silver, 884 S.W.2d 151, 152–53 (Tex. 1994). “The recitations in the return of service

carry so much weight that they cannot be rebutted by the uncorroborated proof of the

moving party.” Id. at 152 (citing Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972)).

Accordingly, “the testimony of a bill of review plaintiff alone, without corroborating

evidence, is insufficient to overcome the presumption that the plaintiff was served.”

Caldwell II, 154 S.W.3d at 97 n.3.

                                       III. DISCUSSION

        This matter presents a threshold issue concerning the adequacy of the appellate

record. Dickey’s contends that service was defective because it was not served at the

address provided for its registered agent. But the citation and officer’s return for Dickey’s

are not in the appellate record, nor is the motion for substituted service. Additionally,

both appellants contend that the trial court applied the wrong evidentiary standard and

failed to give due consideration to their testimony at the final hearing on December 20,

2017.    Yet appellants have never requested a reporter’s record of that evidentiary

hearing (or any other hearing), even after appellee cited the absence of the reporter’s

record as a basis for denying appellants’ appeal.          Based on the record before us,

appellants have failed to demonstrate reversible error. See TEX. R. APP. P. 44.1(a).

        “If the proceeding’s nature, the trial court’s order, the party’s briefs, or other

indications show that an evidentiary hearing took place in open court, then a complaining


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party must present a record of that hearing to establish harmful error.” Vernco Constr.,

Inc. v. Nelson, 460 S.W.3d 145, 150 (Tex. 2015) (per curiam) (quoting Michiana Easy

Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005)); see also TEX. R. APP. P.

34.1 (“The appellate record consists of the clerk’s record and, if necessary to the appeal,

the reporter’s record.”) (emphasis added); id. R. 34.6(b)(1) (“At or before the time for

perfecting the appeal, the appellant must request in writing that the official reporter

prepare the reporter’s record.”) (emphasis added).

       Unlike a restricted appeal, a bill of review allows the parties to develop evidence

beyond the face of the record. Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (per

curiam). Indeed, because they alleged non-service, appellants were required to prove

that the default judgment was untainted by any fault or negligence of their own by

conclusively establishing non-service. See Caldwell II, 154 S.W.3d at 96–97. In their

briefs to this Court, the parties agree that the trial court received evidence at the final

hearing. Appellants complain that the trial court failed to give due consideration to “the

uncontroverted testimony of Dolores Quiroga.” (Emphases added). Appellee responds

that, although not in the appellate record, the only evidence offered by appellants at the

final hearing was the testimony of Dolores Quiroga, and her testimony alone was legally

insufficient to carry appellants’ burden.    See Primate Constr., 884 S.W.2d at 152;

Caldwell II, 154 S.W.3d at 97 n.3. Finally, the trial court states in its order denying the

bill of review that it considered “the petition, the response, the evidence, and the

arguments of counsel.” (Emphases added). Without presenting a record of the final

hearing—clearly, an evidentiary hearing—appellants have failed to establish harmful


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error. See Vernco Constr., 460 S.W.3d at 150.

       Out of an abundance of caution, we also reviewed the clerk’s record, see TEX. R.

APP. P. 34.5, for evidence that would conclusively establish non-service. See Vernco

Constr., 460 S.W.3d at 147–51 (remanding to the court of appeals to consider evidence

in the clerk’s record that was improperly disregarded by the court). The only evidence in

the clerk’s record that supports non-service is the affidavit of Dolores Quiroga attached

to appellants’ petition. In it she attests that she “was never given a copy of the citation

and petition [and that she] . . . found out about the lawsuit after judgment was taken.”

Without corroborating evidence, her testimony alone was legally insufficient as a matter

of law to overcome the presumption that appellants were served. See Primate Constr.,

884 S.W.2d at 152; Caldwell II, 154 S.W.3d at 97 n.3.

       Because Dickey’s contends that its service was defective, we also reviewed the

clerk’s record for any facial defects in service. Again, our review was hampered by an

incomplete record. The only additional items appellants designated for inclusion in the

clerk’s record were the petition for bill of review and appellee’s amended answer. See

TEX. R. APP. P. 34.5(a), (b). The entire clerk’s record spans thirty-eight pages and the

only documents from the underlying lawsuit before us were those attached to appellants’

petition, which included copies of the order granting substituted service, the default

judgment, and the citation and corresponding officer’s return for Dolores Quiroga

individually. Thus, although Dickey’s argues that its service was defective, it failed to

provide us with copies of the citation issued to Dickey’s, see TEX. R. CIV. P. 99, the motion




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for substituted service, see id. R. 106(b), or the corresponding officer’s return.1 See id.

R. 107. Our review is limited to the contents of the record. See TEX. R. APP. P. 34;

Eagle Fabricators, Inc. v. Rakowitz, 344 S.W.3d 414, 421 (Tex. App.—Houston [14th

Dist.] 2011, no pet.). Therefore, based on the record before us, we conclude there is no

independent basis in the clerk’s record for overturning the trial court’s decision. See

Vernco Constr., 460 S.W.3d at 147–51.

        Lastly, we note that this outcome should not come as a surprise to appellants. In

its brief to this Court, appellee repeatedly cites the “absence of a proper record” before

concluding appellants’ appeal must fail because “there is no evidence on the bill of review

before the court.” Nonetheless, appellants elected not to file a reply brief, see TEX. R.

APP. P. 38.3, and did not seek leave to file an untimely reporter’s record. See id. R.

34.6(b)(3). Appellants’ issues are overruled.

                                           IV.     CONCLUSION

        We affirm the trial court’s judgment.


                                                                            GREGORY T. PERKES
                                                                            Justice

Delivered and filed the
12th day of September, 2019.




        1  The citation issued for Dolores Quiroga individually was addressed to her at 1711 Lauren Lane,
Mission, Texas 78572. According to Dickey’s, that same address is also her designated address as
Dickey’s registered agent, and thus it was the proper address for serving Dickey’s. We note that there is
no evidence in the appellate record establishing the designated address for Dickey’s registered agent.
Nevertheless, it stands to reason that appellee attempted service on Dolores Quiroga at this very address—
at least in her individual capacity—before the trial court granted substituted service for both parties at the
Santa Olivia address. See TEX. R. CIV. P. 106(b). Of course, that’s pure speculation, which only highlights
the limits of our review with an incomplete record.
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