                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                 No. 07-13-00251-CV


           A & A CONSTRUCTION SERVICES, LLC, A/K/A A & A
 CONSTRUCTION SERVICES AACS, LLC AND GEORGE ANTHONY, APPELLANTS

                                          V.

                          CLARENCE BLEVINS, APPELLEE

                         On Appeal from the County Court at Law
                                 Moore County, Texas
             Trial Court No. CL22-13, Honorable Delwin T. McGee, Presiding

                                   April 24, 2014

                           MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, George Anthony, perfected his restricted appeal of the trial court’s

post-answer default judgment in favor of Clarence Blevins, awarding Blevins $20,508.00

on his claims asserted in the parties’ contract dispute. On appeal, Anthony complains

that the trial court failed to provide him proper notice of the trial setting and also

contends that the attempted notice failed to comply with the permissible methods of
effecting service. See TEX. R. CIV. P. 21a, 245. We will reverse and remand the cause

to the trial court for further proceedings.


                                  Factual and Procedural History


        Anthony owns A & A Construction Services.1 In August 2012, Blevins contracted

with Anthony, agreeing that Anthony would perform siding work on Blevins’s home in

exchange for a total price of $9,389.00. Per the contract, Blevins paid to Anthony

$4,694.00 as a “material draw” to be used as a deposit for the purchase of the siding

and supplies for the project.


        On August 27, 2012, Anthony sent to Blevins a letter explaining that there would

be a delay in starting the project because it was estimated that it would take two to three

weeks for some of the materials that had been ordered to be delivered. On October 1,

2012, Anthony sent another letter to Blevins, noting a further unexpected delay. In that

letter, Anthony explained that the siding had been delivered on September 20, but he

had not been notified due, somehow, to a delay in delivery of another set of supplies for

the project. Because other projects were in progress or already scheduled to begin

soon, Anthony provided a start date of October 16, 2012.                     Then, Anthony sent to

Blevins a letter dated October 17, alerting Blevins to another “delay in [their] schedule”

and postponing the work for an additional ten days.



        1
           There is some confusion as to the business name and the type of entity under which it operates.
In the written agreement between the parties, the company is identified as simply “A & A Construction
Services,” and that is the name to which Blevins made the deposit check payable. However, in the
several letters alerting Blevins to the continued delays, Anthony’s correspondence bore a letterhead
identifying the company as “A & A Construction Services, AACS, LLC.” In his answer, Anthony identifies
his company as “A & A Construction Services, LLC.” Blevins’s attorney researched the business and was
unable to find a limited liability company bearing the name “A & A Construction Services” registered with
the Texas Secretary of State and qualified to do business under that name in Texas.

                                                    2
       Finally, by letter dated October 29, 2012, Anthony explained additional delays

and offered to Blevins two alternatives at that point:


       Dear, Mr. Blevins, I am still out of town on this big job trying to finish up. I
       know that this has been dragging on way to[o] long and I deeply
       apologize. What I am offering at this point is to have the material
       delivered in 10 to 14 days and have a rep from my company to foresee the
       job and have a sub-contractor take care of this for me. I really wanted to
       do this myself but I have held you up for way to[o] long. Or the second
       option is I can have the material delivered and you can cancel the
       contract. I deeply apologize. While I was waiting for your material to
       come in[,] I took this job not knowing that it was going to take up so much
       of my time. I am willing to do whatever you decide, but whatever decision
       you take please send me a letter stating your decision to the above
       address. Again[,] I am very sorry.

Blevins was not satisfied with either option offered by Anthony and, by letter dated

October 30, 2012, notified Anthony that he requested a refund of the $4,694.00 deposit:

       I do not want a subcontractor to do the work and I do not want the material
       delivered and have to find someone to put it on. You[] are talking about
       another 2 or 3 week delay. There is a third option, and that is that you
       return the money that I gave you and I will find another company to put on
       siding. This is the option I wish to do. If I do not hear from you[,] I will turn
       it over to my attorney at your expense.

       Having heard nothing from Anthony, Blevins did contact his attorney, who sent to

Anthony a notice of claim as required by the Texas Deceptive Trade Practices Act. In it,

Blevins made demand for a refund of his deposit and for attorney’s fees incurred up to

that point. By letter, Anthony refused to tender a refund of the deposit and insisted that

the materials be delivered per the contract terms and the remainder of the contract be

cancelled. As a final effort to avoid litigation, Blevins offered to honor the terms of the

contract in its entirety so long as Anthony began the work within fourteen days of the

December 3rd letter outlining said offer. By his silence in response, Anthony tacitly

refused that offer.


                                              3
        By petition filed January 31, 2013, Blevins sued A & A Construction Services,

LLC A/K/A A & A Construction Services, AACS, LLC, and George Anthony, individually

and D/B/A A & A Construction Services. Blevins alleged causes of action under the

Texas Deceptive Trade Practice Act, breach of contract, fraud, and conversion and

sought economic and punitive damages and attorney’s fees. Anthony filed a pro se

answer on March 8, 2013, requesting that the case be dismissed or that he be removed

from the suit in his individual capacity.2 Ostensibly, by letter dated March 18, 2013,

Blevins’s attorney sent to Anthony a notice that trial had been set for April 17, 2013.


        Following the trial on April 17, at which Anthony did not appear but Blevins did,

the trial court signed its post-answer default judgment in favor of Blevins in the following

amounts: $4,694.00 in economic damages, $14,082.00 in treble and punitive damages,

$1,500.00 in attorney’s fees, and $232.00 in court costs. The judgment also provided

for conditional attorney’s fees in the event of an appeal. Anthony timely filed his notice

of restricted appeal.


                             Standard of Review and Applicable Law


        A restricted appeal is considered a direct attack on a default judgment. Eguia v.

Eguia, 367 S.W.3d 455, 458 (Tex. App.—Corpus Christi 2012, no pet.). A party may

prevail in a restricted appeal only if the following conditions are satisfied: (1) it filed

notice of the restricted appeal within six months after the judgment was signed; (2) it


        2
          The trial court and the parties below treated this response, though arguably defective in some
respects, as Anthony’s answer, said answer then entitling Anthony to proper notice of trial settings. We
will do the same. See Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (per curiam) (recognizing
that defendant’s response, though not in standard form, provided the trial court with “a timely response
acknowledging receipt and acceptance of [plaintiff]’s citation and petition” and, thus, entitled defendant to
proper notice of hearing per Rule 245).

                                                     4
was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted

in the judgment complained of and did not timely file any post-judgment motions or

requests for findings of fact and conclusions of law; and (4) error is apparent on the face

of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (citing

TEX. R. APP. P. 26.1(c), 30, and Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d

226, 227 (Tex. 1999) (per curiam)).


       In a restricted appeal, the “face of the record” consists of the papers on file with

the trial court when it rendered judgment, including the clerk’s and reporter’s records.

Miles v. Peacock, 229 S.W.3d 384, 387 (Tex. App.—Houston [1st Dist.] 2007, no pet.);

Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth 2003, no pet.).

Accordingly, an appellate court may not consider evidence in a restricted appeal unless

it was before the trial court when judgment was rendered. Campsey, 111 S.W.3d at

771.


       When a party has answered in a case, he or she is entitled to notice of trial

pursuant to Rule 245. See Platt v. Platt, 991 S.W.2d 481, 483 (Tex. App.— Tyler 1999,

no pet.) (stating that, when defendant has filed a timely answer, he or she is entitled to

notice of trial setting as a matter of due process and citing Peralta v. Heights Med. Ctr.,

Inc., 485 U.S. 80, 84–86, 108 S. Ct. 896, 898–900, 99 L. Ed. 2d 75 (1988)). Rule 245

provides that “[t]he court may set contested cases on written request of any party, or on

the court’s own motion, with reasonable notice of not less than forty-five days to the

parties of a first setting for trial.” TEX. R. CIV. P. 245. The forty-five-day notice provision

of Rule 245 is mandatory. See Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d

655, 659 (Tex. App.—San Antonio 2002, no pet.) (citing, inter alia, Smith, 826 S.W.2d at

                                              5
138). A trial court’s failure to comply with Rule 245 in a contested case deprives a party

of the constitutional right to be present at the hearing, to voice his or her objections in

an appropriate manner, and results in a violation of fundamental due process. Blanco v.

Bolanos, 20 S.W.3d 809, 811 (Tex. App.—El Paso 2000, no pet.) (citing Platt, 991

S.W.2d at 483). Thus, if the respondent does not have notice of the trial setting as

required by Rule 245, the post-answer default judgment should be set aside because it

is ineffectual. See id. (citing Platt, 991 S.W.2d at 484).


       We presume, however, that the trial court will hear a case only when proper

notice has been given to the parties. Id.; Turner v. Ward, 910 S.W.2d 500, 505 (Tex.

App.—El Paso 1994, no writ).        To overcome the presumption of proper notice, an

appellant must affirmatively show lack of notice. See Blanco, 20 S.W.3d at 811–12

(concluding that presumption of proper notice was no longer taken as true because

appellant could not have received the forty-five days’ notice required by Rule 245 when

the record showed appellee had filed a trial setting request only fifteen days prior to the

final hearing).   This burden is not discharged by mere allegations, unsupported by

affidavits or other competent evidence, that proper notice was not received. See id. at

811.


       A recitation of due notice of the trial setting in the judgment constitutes some, but

not conclusive, evidence that proper notice was given. Osborn v. Osborn, 961 S.W.2d

408, 411 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (citing Wilson v. Indus.

Leasing Corp., 689 S.W.2d 496, 497 (Tex. App.—Houston [1st Dist.] 1985, no writ)).

However, if a judgment is effectively rebutted by other evidence in the record, this

presumption of proper notice is no longer taken as true. Id.

                                              6
                                                  Analysis


        The trial court’s default judgment recites that Anthony had been “duly served to

appear.” This recitation is some evidence that Anthony was given proper notice of the

trial setting, but it is not conclusive evidence. See id. Other evidence in the record,

however, rebuts the presumption that Anthony was given proper notice. At the hearing

held in Anthony’s absence, Blevins specifically noted that Anthony had been notified of

the April 17th trial setting on March 18, a fact which the trial court acknowledged. In its

acknowledgement of that fact and on its own motion, the trial court took judicial notice of

the March 18th notice purportedly sent to Anthony to notify him of the April 17th trial

setting.


        So, the face of the record before us establishes that the notice provided—the

only notice to which the parties refer and, thus, seemingly the only notice provided to

Anthony of the trial setting—was sent by Blevins’s counsel on March 18, only thirty days

before trial was scheduled to be and was held.                     Anthony maintains that he never

received any notice of the April 17th trial setting. Nevertheless, presuming he did, he

did not receive forty-five days’ notice as provided by Rule 245.3 Consequently, the trial

court’s default judgment, rendered in the absence of proper notice to Anthony of the




        3
           We observe that “Rule 21a sets up a presumption that when notice of trial setting properly
addressed and postage prepaid is mailed, that the notice was duly received by the addressee.” See Cliff
v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). We will also presume for purposes of our disposition of
this issue that the notice substantially complied with the rules governing methods of serving such notice.
See TEX. R. CIV. P. 21a. Anthony’s second point of error raises his complaint with respect to serving the
notice of the trial setting by regular, rather than certified, mail. Because the record is not entirely clear on
the matter, we have no means of confirming how the notice was sent and, ultimately, have no need to do
so. Having disposed of the issue in terms of Rule 245’s time requirements, we need not reach a
conclusion as to the merits of Anthony’s second issue concerning Rule 21a’s method-of-service
requirements.

                                                       7
hearing from which judgment resulted, constitutes a violation of Anthony’s due-process

rights. See Blanco, 20 S.W.3d at 811.


       We sustain Anthony’s first point of error on restricted appeal.        Because our

disposition of Anthony’s first point of error is dispositive, we need not and do not reach

the issues raised by his other points of error on appeal. See TEX. R. APP. P. 47.1.


                                        Conclusion


       Having sustained Anthony’s first point of error, we reverse the trial court’s default

judgment and remand the cause to the trial court for further proceedings consistent with

this opinion.




                                                 Mackey K. Hancock
                                                     Justice




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