      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00727-CV



                                Trudy Randall Rowsey, Appellant

                                                   v.

                                Louis Michael Matetich, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
        NO. D-1-GN-08-000762, HONORABLE JON N. WISSER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Trudy Randall Rowsey brings a restricted appeal from a no-answer

default judgment rendered against her. The judgment declared that two agreements between her and

appellee Louis Michael Matetich failed for lack of consideration and were unenforceable and

awarded Matetich $15,000 in attorney’s fees. In four points of error, Rowsey argues that (1) the

district court lacked personal jurisdiction over her because the substituted service the court ordered

was defective, (2) the district court lacked subject-matter jurisdiction over the suit because the

probate court had jurisdiction, (3) the district clerk failed to give Rowsey notice of a modified

version of the default judgment, and (4) the district court erred as a matter of law by finding that the

two agreements at issue were unenforceable for lack of consideration. Because we find no error

apparent on the face of the record, we will affirm.
                                          BACKGROUND

                According to Matetich’s petition, Rowsey’s mother, Seareatha Matetich,

married Matetich in 1985.1 Seareatha died on February 18, 2006. Rowsey was the sole beneficiary

of Seareatha’s holographic will. The will was admitted to probate on May 24, 2006, and Rowsey

was appointed independent administrator of her estate.

                About a month after Seareatha’s death, on March 27, 2006, Rowsey and Matetich

entered into two agreements, one entitled “Agreement Between the Parties Regarding the Estate of

Seareatha Carson Matetich” (“estate agreement”) and the other entitled “Agreement Between

the Parties” (“personal affairs agreement”). The estate agreement purported to constitute “all

agreements between the parties’ business affairs [sic],” while the personal affairs agreement

purported to constitute “all agreements made between the parties’ personal affairs [sic].”

                Certain provisions of the estate agreement concerned the transfer of property that

had belonged to Seareatha. Matetich agreed to “transfer, deed, convey, and/or relinquish one-half

of all that is deemed community property in the laws of the state of Texas” to Rowsey, including all

real property. He also agreed that “ALL that was Seareatha Carson Matetich’s, in life (February 18,

2006), is now legally, rightfully, and exclusively Trudy Randall Rowsey’s, regardless of its location

on the planet.” Both parties agreed that “no changes can be made to/with any asset of the estate’s

real property or intellectual properties without the written consent of the other.”

                Matetich and Seareatha owned two real properties located in New Zealand as

joint tenants with right of survivorship. Matetich alleges that based on one or both agreements,


       1
           For clarity, we will refer to Seareatha by her first name.

                                                   2
Rowsey filed a “Caveat against dealings with land under Land Transfer Act 1952” in New Zealand

on the two real properties, preventing Matetich from selling the properties. According to Matetich’s

New Zealand counsel, Matetich would be able to remove the caveat in New Zealand if he obtained

a judgment from a Texas court that the purported agreements are not valid contracts under

Texas law.

               On March 4, 2008, Matetich sued Rowsey seeking a declaration that the

two agreements failed for lack of consideration. Matetich asserted alternative claims that the

agreements were unenforceable based on fraud in the inducement and material misrepresentation,

mutual mistake, and unconscionability. He also asserted a claim for tortious interference with the

sale of the New Zealand properties and sought actual damages, lost profits, exemplary damages, and

attorney’s fees. Matetich attached both agreements and the caveat to his petition.

               After several failed attempts at serving Rowsey in person and by certified mail,

Matetich filed a motion for substituted service to which he attached three affidavits attesting to

Rowsey’s usual place of abode and two process servers’ efforts to serve Rowsey. The district court

granted the motion on April 24, 2008, and ordered that service could be made “by mailing a copy to

[Rowsey] via first class at: [Rowsey’s] usual place of abode: 203 Oxbow Trail, Marble Falls,

Texas 78654.” The executed service of citation was filed on April 28, 2008.

               After service by mail, no answer had been filed by May 19, 2008. Matetich moved

for default judgment on May 20, 2008. The district court heard the motion and signed the judgment

that same day, declaring that the agreements “fail for lack of consideration and are unenforceable.”




                                                 3
The district court also awarded $15,000 in attorney’s fees to Matetich under section 37.009 of the

civil practice and remedies code.

               Later that day, Matetich moved to modify the judgment because it incorrectly

stated that the date that the agreements were signed was March 27, 2008 instead of March 27, 2006.

The court granted the motion on the same day (May 20, 2008) and signed a judgment with the

correct 2006 date for the agreements. The modified judgment also was filed with the district clerk

on May 20, 2008.

               On June 20, 2008, Rowsey filed an answer and counterclaim.2 Rowsey brought this

restricted appeal on November 20, 2008.3


                                            ANALYSIS

               A restricted appeal constitutes a direct attack on a default judgment. Tex. R. App.

P. 30; General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943

(Tex. 1991). As the party filing a restricted appeal, Rowsey must show that: (1) she brought the

appeal within six months after the trial court signed the judgment; (2) she was a party to the suit;



       2
          Rowsey also filed a motion for new trial that day. Matetich responded to the motion for
new trial asserting that the motion was not timely filed because the thirty-day deadline to file the
motion had expired on June 19, 2008. On appeal, Rowsey concedes that the motion for new trial
was not timely filed.
       3
          According to correspondence received by the Court from Rowsey’s counsel, Rowsey died
on February 25, 2009. Rowsey’s counsel requested extensions of time to file her appellant’s brief
to allow her estate time to determine whether to pursue the appeal. Rowsey’s appellant’s brief
was filed on January 6, 2010. We “will proceed to adjudicate the appeal as if all parties were alive.”
Tex. R. App. P. 7.1(a)(1). Rowsey’s appeal involves, at a minimum, $15,000 in attorney’s fees,
so her appeal is not mooted by her death. See Kenseth v. Dallas County, 126 S.W.3d 584, 593-94
(Tex. App.—Dallas 2004, pet. denied).

                                                  4
(3) she did not participate in the hearing that resulted in the complained-of judgment and did

not timely file any postjudgment motions or requests for findings of fact and conclusions of law;

and (4) error is apparent from the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander

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

apparent from the face of the record, is in dispute here. The record, for purposes of a restricted

appeal, consists of the clerk’s record and the reporter’s record if one was made, and it includes

any evidence presented to the trial court before final judgment. See Norman Commc’ns v. Texas

Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); General Elec., 811 S.W.2d at 942, 944

(“The rule has long been that evidence not before the trial court prior to final judgment may not be

considered in a [restricted appeal] proceeding.”).

                A plaintiff may take a default judgment against the defendant if the defendant has

not previously answered, as long as the citation and return of service have been on file with the clerk

for 10 days. Tex. R. Civ. P. 107, 239. A no-answer default judgment is properly granted if (1) the

plaintiff files a petition that states a cause of action, (2) the petition invokes the trial court’s

jurisdiction, (3) the petition gives fair notice to the defendant, and (4) 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 pled 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 Co., 675 S.W.2d 729, 731 (Tex. 1984). As a result, our review



                                                   5
is limited to determining whether Matetich’s petition discloses any invalidity of his claim; Rowsey

is precluded from challenging the legal and factual sufficiency of the evidence supporting her

liability. See Texaco, Inc. v. Phan, 137 S.W.3d 763, 770 (Tex. App.—Houston [1st Dist.] 2004,

no pet.) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Morgan,

675 S.W.2d at 731)).

                In her first point of error, Rowsey challenges the district court’s jurisdiction over

her, asserting that the substituted service ordered by the district court was defective. In a restricted

appeal, defective service of process constitutes error on the face of the record. Primate Constr., Inc.

v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (per curiam). Strict compliance with the procedural rules

governing citation and return of service must affirmatively appear on the record if the default

judgment is to withstand direct attack. Id. at 152; 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.).

                Matetich filed a motion for substituted service after several failed attempts at serving

Rowsey in person and by certified mail. Rule 106(b) governs substituted service. Rule 106(b)

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]



                                                   6
       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

       (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).

               In support of his motion, Matetich attached three affidavits, his own and two

from process servers who had attempted to serve Rowsey. Matetich attested that Rowsey’s usual

place of abode was 203 Oxbow Trail, Marble Falls, Texas 78654, based on his personal knowledge.

One private process server, Jacklynn Gaye Malarkey, attested that she had attempted to serve

Rowsey personally at the same address on three different dates at different times of day (March 13,

2008 at 6:30 p.m.; March 15, 2008 at 9:00 a.m.; and March 17, 2008 at 7:45 p.m.). For each attempt,

she noted that the residence was gated and she could not gain access to it and that she honked her

horn and there was no movement. On her first attempt, she left a notice on the gate. She noted on

the second attempt that there were four trucks in the driveway, and on the third attempt, she noted

that there were five trucks in the driveway.

               The other private process server, Mike Techow, attested that he had “attempted to

make personal delivery to [Rowsey] at his/her place of abode, being 203 Oxbow Trail, Marble Falls,

TX 78654, which was established personally in my efforts.” He also documented his attempt to

serve Rowsey via certified mail. He identified the certified mail receipt number, noted that “certified

has not come back after 2 attempts, notice has been left and documents have not been claimed,” and



                                                  7
attached a tracking receipt from the United States postal service dated April 17, 2008 for same

certified mail receipt number. The tracking receipt stated that notice had been left in “Marble Falls,

Texas 78654” by the postal service and that the item could be redelivered by the postal service or

picked up at the post office, and if not claimed, would be returned to sender. Techow attested that

on April 17, 2008, he “deemed it impractical to personally deliver the Citation, Plaintiff’s Original

Petition and Plaintiff’s Request for Disclosure” to Rowsey. He also stated that he believed Rowsey

“can and will be given notice of these proceedings by delivering to anyone over the age of sixteen

(16) at the defendant’s usual place of abode or work[,] by attaching the above listed documents to

the front entrance of the defendant’s usual place of abode or work, or by first class mail.”

               In his motion for substituted service, Matetich sought to serve Rowsey either by

leaving the citation with a copy of the petition and order attached “with anyone 16 years of age or

older at the location specified in the attached affidavit, by posting a copy on [Rowsey’s] front door,

by mailing a copy to [Rowsey] via first class mail or by such other order of the Court as it deems

appropriate under the circumstances.” The district court granted the motion on April 24, 2008,

crossing out the other options and ordering that “service of citation may be made on Defendant,

Trudy Elizabeth Rowsey, by mailing a copy to [Rowsey] via first class at: [Rowsey’s] usual place

of abode: 203 Oxbow Trail, Marble Falls, Texas 78654.” The court accepted the facts in both

process servers’ affidavits as true and incorporated them into its order. The court also found that

both process servers exercised due diligence in their attempts to serve Rowsey and that “[t]he

manner of service ordered herein will be reasonably effective in giving [Rowsey] notice of the suit.”




                                                  8
The court further ordered that the person executing the return must make proof of service by “stating

when the citation was served, on whom it was served, and where it was served.”

                Rowsey makes two arguments in support of her claim that the substituted service was

defective. First, she challenges Matetich’s affidavit as “conclusory” because it “does not provide

any probative evidence that Rowsey’s usual abode is at that address [203 Oxbow Trail, Marble Falls,

Texas 78654].” Second, she argues that even if the affidavits are sufficient to allow the district court

to authorize substituted service, Matetich did not meet his burden of showing that service via

regular mail was reasonably calculated to give Rowsey notice of suit. She contends that Matetich

should have provided “evidence from the U.S. Post Office or elsewhere to demonstrate that Rowsey

receives mail at that address.” Rowsey complains that Techow’s statement that he believed Rowsey

could and would be served by mail is conclusory and renders his affidavit insufficient because

Techow provided no facts supporting his “legal conclusion.”

                We disagree with Rowsey’s characterization of the affidavits. Matetich, Rowsey’s

stepfather, attested to her usual place of abode based on his personal knowledge. This satisfies

rule 106(b)’s requirement that the affiant state “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.”

Tex. R. Civ. P. 106(b). Moreover, in addition to Matetich’s affidavit, Techow also attested that

he had personally established that the Oxbow Trail address was Rowsey’s usual place of abode

in his attempt to personally serve her. In addition, Techow attested to his unsuccessful attempts

to serve Rowsey both personally and by certified mail. These are facts within the affiants’ personal

knowledge, not legal conclusions.         The evidence before the district court was sufficient



                                                   9
under rule 106(b) to support the court’s finding that Rowsey’s usual place of abode was at

203 Oxbow Trail and to support its order allowing substituted service.

               The evidence was also sufficient to support the district court’s order allowing

substituted service by regular mail. Malarkey attested that the residence was gated, which indicates

that neither service at the residence by delivery to a person over 16 nor service by posting a copy on

the front door would be reasonably effective methods of giving Rowsey notice of the suit, leaving

only regular mail and publication as viable alternatives. Rowsey contends that Matetich did not

meet his burden of showing that service by regular mail would be reasonably effective to give

her notice of the suit because he did not present evidence that Rowsey “was actually receiving mail

at the address for service.” Rowsey asserts that the supreme court’s holding in Hubicki v. Festina,

226 S.W.3d 405, 408 (Tex. 2007) (per curiam), requires a plaintiff to present such evidence before

service by regular mail may be authorized.

               Hubicki does not impose such a requirement. Hubicki involved substituted service

authorized by the trial court to be made on the defendant Hubicki by first class mail and

certified mail at a post office box associated with a house he owned in Mexico. Id. at 406. The

plaintiff’s petition alleged that Hubicki had a Texas “residential address” and could be served at

his house in Mexico. Id. The plaintiff made only one attempt to serve Hubicki by certified mail

in Mexico before moving for substituted service. Id. at 407-08. There are several important

differences between Hubicki and this case. One is that the address at which the substituted service

was authorized was not Hubicki’s “residential address,” in contrast to the testimony here that the

Oxbow Trail address was Rowsey’s usual place of abode. In addition, the court found that there was



                                                 10
no evidence that Hubicki was in Mexico at the time the plaintiff attempted service there because

almost a month passed between the date of the affidavit stating that Hubicki was in Mexico and the

attempted service. Id. at 408. The court noted that “there is no evidence that Hubicki was actually

receiving mail at the address [the plaintiff] provided,” when differentiating the circumstances present

in Hubicki from those present in State Farm Fire & Casualty Co. v. Costley, 868 S.W.2d 298, 299

(Tex. 1993) (per curiam).

               In Costley, the supreme court held that the trial court properly authorized substituted

service upon a defendant by first class mail. Id. State Farm made ten failed attempts to achieve

personal service on the defendant, who was a State Farm homeowners’ insurance policyholder,

before requesting substituted service. Id. at 298. State Farm presented the trial court with evidence

of various correspondence between it and the defendant related to his homeowners’ policy. Id.

at 299. The correspondence included documents that State Farm had sent to the defendant’s mailing

address and a response from the defendant to correspondence sent to his mailing address. Id. The

supreme court held “[t]his was sufficient evidence to establish that notice sent to this address would

be reasonably effective to give Costley notice of the suit.” Id. The court noted that “[s]ervice by

mail achieves a similar result [to service by leaving copies with someone over the age of 16 at the

defendant’s place of abode] because it allows a plaintiff to properly post a return of service which

demonstrates that the plaintiff has precisely followed the court’s order of service by means

reasonably calculated to provide actual notice.” Id. Thus, service by mail achieves the purpose of

rule 106(b) which is “to allow plaintiffs to effect service where proof of actual notice under

Rule 106(a) is impractical.” Id. at 298.



                                                  11
               The circumstances of this case are more similar to Costley than to Hubicki.4 Only

after multiple attempts at service at Rowsey’s gated residential address did Matetich move for

substituted service. Under these circumstances, Matetich’s testimony that the Oxbow Trail address

was Rowsey’s usual place of abode, combined with Techow’s testimony that he had personally

established it was her place of abode in the same time frame as the motion’s filing, was sufficient

evidence to support the district court’s finding that service by mail would be reasonably effective in

giving Rowsey notice of the suit. Thus, the record affirmatively shows that the district court properly

authorized substituted service in compliance with rule 106(b).

               Matetich’s return of service also strictly complied with the rules of civil procedure,

as required for the default judgment to withstand direct attack. See Primate Constr., 884 S.W. 2d

at 152. Rule 107 requires an adequate return of service before a court may grant a default judgment.

The rule provides that “[w]here citation is executed by an alternative method as authorized by


       4
           Rowsey also relies on this Court’s prior opinion in Titus v. Southern County Mut. Ins.,
No. 03-05-00310-CV, 2009 WL 2196041 (Tex. App.—Austin July 24, 2009, no pet.) (mem. op.).
Rowsey asserts that this Court reversed a default judgment in a case with similar facts to this one
in Titus. We disagree that the facts of this case are similar to those in Titus. The relevant facts
in Titus were more similar to Hubicki. Id. at *4. In Titus, the insurance company had made only a
single attempt to serve Titus via certified mail at the service address; no personal service had
been attempted. Id. at *3. The process server had not personally verified that the address was
the defendant’s usual place of abode, and his affidavit did not state that the address was the
defendant’s usual place of abode or other place where she could probably be found. Id. Unlike this
case, the parties to the lawsuit did not have a personal relationship. The only evidence the insurance
company submitted to support that the address was a place where the defendant received mail was
a form from the postal service that confirmed “Address good. No change of address order on file.”
Id. We found this form, “without more, does not affirmatively show that the location stated in
the affidavit was, at that time or ever, Titus’s usual place of abode” because people can receive
mail at locations other than their usual place of abode. Id. Under those circumstances, we held the
insurance company had not established either that substituted service was required or that service
via regular mail was reasonably calculated to provide notice. Id. at *4.

                                                  12
Rule 106, proof of service shall be made in the manner ordered by the court.” Tex. R. Civ. P. 107.

Here, the district court ordered that the person executing the return must make proof of service

by “stating when the citation was served, on whom it was served, and where it was served.” The

citation filed with the process server’s service-return affidavit stated that the petition was served on

“Trudy Elizabeth Randall, aka Trudy Rowsey, 203 Oxbow Trail, Marble Falls, Texas 78654,” and

the affidavit stated that he “served citation . . . via first class mail per order for substitute service”

on April 24, 2008 at 2:30 pm. A copy of the order and the stamped envelope addressed to Rowsey

were also attached to the executed citation. Since the return of service states the date of service on

Rowsey at her Oxbow Trail address by first-class mail, in accordance with the court’s order,

the record affirmatively shows strict compliance with rule 107. Accordingly, we hold that the

district court had jurisdiction over Rowsey because the substituted service was not defective, and we

overrule Rowsey’s first point of error.

                In Rowsey’s second point of error, she challenges the district court’s subject-matter

jurisdiction over the case. Rowsey argues that instead the probate court had jurisdiction under

former probate code sections 5 and 5A because probate proceedings were pending in the

probate court at the time Matetich filed his suit and this is a matter “appertaining to an estate or

incident to an estate.” See Act of May 28, 2003, 78th Leg., R.S., ch.1060, §§ 2, 4, 2003 Tex. Gen.

Laws 3052, 3053-54. Rowsey contends that Matetich’s claims directly affected the estate’s

administration because he sought a determination “whether certain land is property of the estate” and

that the agreements were not valid contracts. She argues that this error is apparent from the face of

the record because Matetich’s petition refers to the probate proceedings.



                                                   13
                Former section 5 of the probate code provides that “[a] statutory probate court has

jurisdiction over any matter appertaining to an estate or incident to an estate and has jurisdiction

over any cause of action in which a personal representative of an estate pending in the statutory

probate code is a party.” See Act of May 28, 2003, 78th Leg., R.S., ch.1060, § 2, 2003 Tex. Gen.

Laws 3052, 3053 (former Tex. Prob. Code Ann. § 5(h)). Former section 5A of the probate code

provides that a matter is appertaining to or incident to an estate if, among other things, it is a claim

“by or against an estate,” an action for trial of title to land, or a matter “relating to the settlement,

partition and distribution” of an estate. See Act of May 28, 2003, 78th Leg., R.S., ch.1060, § 4,

2003 Tex. Gen. Laws 3052, 3054 (former Tex. Prob. Code Ann. § 5A(b)). To determine whether

this case is a matter appertaining to or incident to Seareatha’s estate, we review Matetich’s pleadings.

See In re SWEPI, L.P., 85 S.W.3d 800, 805 (Tex. 2002) (determining whether controlling issue is

settlement, partition, or distribution of estate); In re Graham, 971 S.W.2d 56, 59 (Tex. 1998)

(determining whether divorce proceeding is appertaining to or incident to guardianship estate).

                A review of Matetich’s pleadings shows that the probate court does not have subject-

matter jurisdiction over Matetich’s suit. Matetich sued Rowsey personally, not in her capacity

as personal representative of Seareatha’s estate. And contrary to Rowsey’s characterization of

his petition, Matetich did not “seek to determine whether certain land is property of the estate.” He

did not seek to try the title of the New Zealand properties—he sought a declaration that the

agreements between him and Rowsey were invalid as contracts. Although Matetich alleges that

the declaration that he seeks will have the effect of allowing a New Zealand court to remove the




                                                   14
caveat from the title to the New Zealand properties, he did not seek that result (a clear title) from the

district court here.

                In addition, Matetich’s claim here cannot be considered a claim “seeking settlement,

partition, [or] distribution of [Seareatha’s] estate.” Matetich alleged that he and Seareatha owned

the New Zealand properties as “joint tenants with right of survivorship.” As stated above, a no-

answer default judgment results in admission by the defaulting defendant of all facts properly pled

in the plaintiff’s petition (except for the amount of unliquidated damages). Dolgencorp, 288 S.W.3d

at 930. Property owned by spouses as joint tenants with a right of survivorship is a nontestamentary

asset and is governed by chapter XI of the probate code concerning nontestamentary transfers. See

Holmes v. Beatty, 290 S.W.3d 852, 855 (Tex. 2009); see also Tex. Prob. Code Ann. §§ 451,

454 (West 2003). Nothing on the face of the record indicates that the New Zealand properties

are part of Seareatha’s estate. Therefore, the district court, not the probate court, had jurisdiction

over this case, and there is no error apparent on the face of the record. We overrule Rowsey’s

second point of error.

                Rowsey contends in her third point of error that the district clerk’s alleged failure to

send notice of the modified final judgment was reversible error. Rowsey argues that the district clerk

had an obligation under rule 306a to notify her that the modified judgment had been entered. See

Tex. R. Civ. P. 306a(3), (4). The first final judgment and the modified judgment were both signed

on May 20, 2008. While the first final judgment, which contained the incorrect date for the

agreements, is stamped “NOTICE MAILED,” the modified final judgment was not stamped.

Rowsey contends that because the record indicates that the clerk gave notice of the first judgment,



                                                   15
but does not provide the same indication that notice was given of the second judgment, the alleged

lack of notice of the second judgment is error apparent on the face of the record.

                 Failure to give notice is not reversible error in this context. The supreme court has

held that “the rules do not impose on the clerk an affirmative duty to record the mailing of

the required notices; accordingly, the absence of proof in the record that notice was provided does

not establish error on the face of the record.” Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009)

(per curiam) (citing Alexander, 134 S.W.3d at 849). Furthermore, Rowsey cannot demonstrate

harm based on the alleged failure to send notice of the modified final judgment. See Tex. R. App.

P. 44.1 (2). Rule 306a provides a procedure by which a party can obtain a finding that it received

notice of the signing of a judgment more than twenty days but less than ninety days after it was

signed, thus resetting the deadlines for post-judgment motions. See Tex. R. Civ. P. 306a(4), (5). In

this case, it is apparent from the record that Rowsey received notice that a default judgment had

been taken against her sometime before the expiration of the ninety-day period because she filed

an answer and a motion for new trial thirty-one days after the judgment was signed.5 No rule 306a

motion by Rowsey appears in the record, and she does not explain how the clerk’s alleged failure

to send notice of the modified final judgment, which was signed the same day as the first judgment,

prevented her from properly presenting her case to this Court.                 We overrule Rowsey’s

third point of error.

                 In her fourth point of error, Rowsey asserts that the district court erred as a matter of

law by finding that there was no consideration for the agreements and that this error appears on the


        5
            Rowsey does not assert that she did not receive notice of the first final judgment.

                                                    16
face of the record. We construe this as an argument that Matetich’s petition discloses the invalidity

of his claim on its face. Matetich’s petition stated that the agreements showed that “while there [is]

a list of things [Matetich] agrees to do, [Rowsey] does not agree to perform any act or to pay any

consideration,” rendering the contract unenforceable because it “lacks mutuality of obligation.”

Rowsey argues that the agreements, which were attached to the petition, disclose the consideration

on their face because both parties agree to various obligations to do certain things. Thus, we must

examine the agreements because if the pleading conflicts with the agreements, the agreements

control. See Cecil v. Hydorn, 124 S.W.2d 781, 782 (Tex. App.—San Antonio 1987, no writ)

(holding exhibit governed and pleadings did not support default judgment because attached

agreement differed from agreement described in petition). Rowsey also contends that because the

documents were signed contemporaneously, the consideration expressed in each agreement should

apply as consideration in the other agreement. Rowsey focuses in particular on the provision in the

estate agreement that “[t]he parties agree that no changes can be made to/with any assets of the

estate’s real property or intellectual properties without the consent of the other” as “the clearest

example of consideration.”

               We agree with Matetich that each independent agreement must be supported

by independent consideration. The general rule is that separate instruments “executed at the

same time, for the same purpose, and in the course of the same transaction are to be considered

as one instrument, and are to be read and construed together.” Jones v. Kelley, 614 S.W.2d 95, 98

(Tex. 1981) (construing four documents together where primary purpose was conveyance of

entire tract of land). By their terms, these agreements purport to have different purposes, and



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each agreement purports to be the exclusive agreement regarding its topic. The estate agreement

states it “constitutes all agreements made” regarding the parties’ business affairs, and the personal

affairs agreement states it “constitutes all agreements made” regarding their personal affairs.

Accordingly, we will examine each agreement individually to determine whether it was supported

by valid consideration.

               Consideration is a present exchange bargained for in return for a promise. Roark

v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). It can be either a benefit to the

promisor or a detriment to the promisee. Id. The detriment must induce the making of the promise,

and the promise must induce the incurring of the detriment. Id. Surrendering a legal right can be

valid consideration. Northern Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998).

               In this case, both agreements are unenforceable for lack of consideration. The estate

agreement primarily consists of provisions in which Matetich agrees to obligations that he

would have under the probate code even if the agreement did not exist (e.g., to honor Seareatha’s

will and to relinquish one-half of all community property). These promises do not constitute

consideration because “discharge of a legal duty is not consideration.” Martens v. Prairie Producing

Co., 668 S.W.2d 889, 891 (Tex. App.—Houston [14th Dist.] 1984, no writ). And as Matetich points

out, the provision upon which Rowsey primarily relies—the provision that states the parties’

agreement not to change any of the estate’s assets without consent of the other—is a meaningless

provision. At the time of Seareatha’s death, her property vested in her beneficiaries immediately,

subject only to the payment of the debts of the testator. See Tex. Prob. Code Ann. § 37 (West 2003);

Woodward v. Jaster, 933 S.W.2d 777, 780 (Tex. App.—Austin 1996, no writ). Thus, the parties



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were not agreeing to surrender any legal right, and the exchange of promises not to do anything

with the property without each other’s consent is not valid consideration. The district court correctly

concluded that this agreement is not supported by valid consideration.

               The district court also correctly concluded the personal affairs agreement is not

supported by valid consideration. There is no identifiable bargained-for exchange. It is unclear

whether the promises made are to benefit Matetich or Rowsey. Instead, the agreement consists of

vague statements about Matetich’s and Rowsey’s familial relationship and participation in family

events, in terms that are not specific enough to be enforced by a court. See T.O. Stanley Boot Co.

v. Bank of El Paso, 847 S.W.2d 218, 221-22 (Tex. 1992). We overrule Rowsey’s fourth point of

error because Matetich’s petition stated a valid cause of action on its face for a declaratory judgment

that the agreements are unenforceable and fail for lack of consideration.


                                          CONCLUSION

               Having overruled Rowsey’s issues, we affirm the district court’s judgment.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 12, 2010




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