1 NO. 03

- 13

- 00311

- CV
LUCY GUTIERREZ § COURT OF APPEALS § § vs. § § PORTFOLIO RECOVERY § ASSOCIATES § THIRD DISTRICT OF TEXAS
APPELLANT’S MOTION FOR REHEARING EN BANC
TO THE HONORABLE JUSTICES OF SAID COURT: Appellan t, LUCY GUTIERREZ, submits this h er Motion for Rehearing En Banc , and in support thereof shows:
General
1. This Motion addresses t he issues as stated in the Court ’s February 26, 2015, opinion, plus an additional issue of fundamental error. In an attempt to maintain brevity, APPELLANT’S B RIEF and APPELLANT’S REPLY BRIEF are incorporated herein as if restated in full. Service of Citation
2. The appellate panel ruled that the “ambiguous time standard” (capable of interpretation as two different times) which the process server stated in
his A ffidavit of Service as the time he received the Citation was in strict compliance with the Texas Rules of Civil Procedure. The panel, in it’s opinion, does not discuss, nor even mention, that the reason appellant raised ACCEPTED 03-13-00311-CV 6008851 THIRD COURT OF APPEALS

AUSTIN, TEXAS 7/9/2015 11:43:53 PM JEFFREY D. KYLE

CLERK2 this issue was because the process server did not use this same “ambiguous
time standard” in his statement as to the time that the citation was served. It is this conflict in the use by the process server of two different forms to stating the time that created the “ambiguous time standard. ” The Court ’s opinion states that this “ambiguous time standard” does not affect strict compliance with service of process. This conclusion by thi s C ourt is contrary to the rulings of other courts of appeal and the Texas Supreme Court, which state that t he return must specifically state both the date and time that the process server received the citation.
3. TEX. R. CIV. P. 16 states: “Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on whic h he received them....” (emphasis added.) In Insurance Co. of Pennsylvania v. Lejeune , 297 S.W. 3d 254, 255

- 56 (Tex. 2009), default judgment was reversed when the clerk’s endorsement on citation did not show the hour of receipt. In this case, the time “18 :21 pm” could be military time for 6:21 p.m. or the “1” could be a typographical error and the time could be 8:21 p.m. The latter is a possibility because the process server used standard time for the time of service. Therefore, there are two possible ti mes that the Citation could have been received by the process server.3 4. T hi s Court ruled in the opinion that the time “18:21 pm” was in fact “6:21 pm.” But how the Court can conclude this without speculating, inferring, or even considering extrinsic mat ter not “on the face of the record” was not explained in the opinion. The fact is still, nonetheless, a time of receipt stated in the citation that is capable of m ore than one meaning. The
Court ’s opinion effectively accepts substantial compliance as str ict compliance. “...[F]or well over a century, the Texas Supreme Court has required that strict compliance with the rules of service of citation affirmatively appear on the record in order for a default judgment to with

stand direct attack.” In re Z.J.W., 185 S.W. 3d 905, 907

- 08 (Tex. App.

– Tyler 2006, no pet.).
5. The Court should rule that the Citation did not properly state the hour of receipt and was therefore not in strict compliance with the rules of service
of citation.
Judicial Admission
6

. W hile t he case cited by the Court in it’s opinion does provide the general definition of a judicial admission, it does so within a con text that is very different from that in this case. T he filing that appellant asserts was a judicial admission was: (1) done in the case below (in the trial court) while the case was on appeal; (2) the pleading to amend the affidavit of service4 specifically stated that it’s purpose was to “clarify” that “18:21 pm” is “6:21
pm; ” (3) the pleading in question was filed after appella nt filed her brief pointing out the ambiguous time; and (4) appellee (though incorrectly) believed that the trial court retained plenary power to grant this motion to
amend

. This particular type of motion, within the context of an appeal, is a deliberate, clear and unequivocal admission that appellee believed the time was ambiguous. In this manner, appellee could “eliminate” appellant’s point
of error concer ning the affidavit of service.
7

. “A judicial admission ‘occurs when an assertion of fact is
conclu sively established in live pleadings, making the introduction of other pleadings or evidence unnecessary.’” Horizon/CMS Healthcare Corp. v.
Auld , 34 S.W. 3d 887, 905 (Tex. 2000) (quoting Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W. 2d 877, 844 (Tex. App.

– San Antonio 1996, writ denied)).
8. The Court should rule that appellee judicial admitted that the time of receipt of the Citation was ambiguous and therefore service is invalid. Sufficiency of the Pleadings
9

. This Court ruled that the Origin al Petition in this cause stated a cause
of action for breach of co ntract. The opinion states the elements for such a cause of action but wholly fails to take into consideration the most important5 of the four elements. Namely, the first which in the lang uage of the panel is that “plaintiff must show that a contract existed between the parties.” The opinion states as follows: “ Portfolio’s petition alleges that Gutierrez entered into an agreement with Portfolio’s predecessor in interest whereby Gutierrez accepted an extension of credit and became bound to repay the debt. The petition further alleges that Gutierrez breached her duty to make the required payments and that Gutierrez owes Portfolio a balance of $4,448.61. These allegations are sufficient to al low Gutierrez to “ascertain the nature and the
basic issues” of Portfolio’s breach

- of

- contract claim.”
10

. Implicit in the Court’s statement is that a contract between Portfolio
and Gutierre z never existed . This statement is actually explicit in Plaintiff ’ s Original Petition . Petitioner states: “ Defendant received an extension of
credit from Plaintiff’s predecessor in interest . Plaintiff is now the owner of that indebtedness, as support by the attached documentation . Defendant accepted the credit and b ecame bound to repay Plaintiff, with interest.” The predecessor in interest is never identified, and there was no attached documentation. The only other information regarding the alleged contract is an account number and which is never identified as to w hose account it was (“predecessor in interest”) , and an allegation that after acceleration, the amount du e on the account was $4,448.61. The description contains no material terms of the contract. “In a contract to loan money, the material6 terms will gen erally be: the amount to be loaned, maturity date of the loan, the interest rate, and the repayment terms. T. O. Stanley Boot Co., Inc., v. Bank of El Paso , 847 S.W. 2d 218, 221 (Tex. 1992). 11

. “A court cannot enforce a contract unless it can determine w hat it is.” Bendalin v. Delgado, 406 S.W. 2d 897, 899 (Tex. 1966). In this cause, there

was no description of any of the terms of the contract, whether they be material or not. Plaintiff’s Original Petition fails to state a cause of action and fails to give fair notice of what the claim is. 12

. This Court ’s ruling essentially declares the following : A defa ult judgment based on a suit for debt filed by a person that was not a party to the alleged contract who claims to own the alleged contract where the othe r party is identified merely as “predecessor in interest,” with absolutely no proof of plaintiff’s ownership interest other than the conclusory words “predecessor in interest,” and with absolutely no in formation regarding the alleged contract, namely, the amount of t he debt that was incurred, the purpose of the debt, the maturity date, the terms of payment, the interest rate, etc., states a cause of action for breach of contract, and furthermore, gives fair notice to de fendant of the claim involved. 13

. This court should find that Plaintiff’s Original Petition failed to state a cause of action and failed t o give fair notice of the claim to the defendant. Issue 4: Fundamental Error

– Appellee, as a matter of law, has no standing in this cause and therefor e, there is no subject

- matter jurisidiction
14

. Pursuant to the rule stated in Texas Ass’n of Business v. Texas Air Control Bd ., 852 S.W. 2d 440, 445 (Tex. 1993) that subject matter7 jurisdiction, namely, standing, may be raised for the first time on appea l by the parties or by the court and may not be waived, appellant alleges that appellee has no standing in this cause , and therefore, there is no subject matter jurisdiction in this cause . This new issue is one of fundamental error which involves the viol ation of several constitutional doctrines: the separation of powers, and the limitation of judicial power to “cases” and “controversies .” 15

. “ The general test for standin g in Texas requires that there ‘ (a) shall be a real controversy between the parties, which (b) will be actually determined by t he judicial declaration sought.’” Id. at 445. In this case, the only evidence provided in the Plaintiff’s Original Petition were the statements: “Plaintiff’s predecessor in interest,” and “Plaintiff is now the o wner of that indebtedness, as supported by the attached documentation.” There was no attached documentation and the predecessor in interest was never identified. 16

. In Ramsey v. Dunlop , 146 Tex. 196, 205 S.W. 2d 979 (Tex. 1947), the Texas Supreme Court h eld that “ fundamental error” is an “error which directly and adversely affects the interest of the public generally, as that interest declared in the statutes or Constitution of this State....” Id . at 983. 17

. This decision was further analysis by the Texa s Supreme Court in a per curiam opinion with regards to subject matter jurisdiction. “When the record affirmatively and conclusively sho w s that the court rendering the judgment was without jurisdiction of the subject matter, the error will also be regarde d as fundamental. An appellate court should not be required to8 approve a county court judgment...simply because the appellant does not raise the question of jurisdiction.” McCauley v. C onsolidated Underwriters , 157 Tex. 475, 304 S.W. 2d 265, 266 (Tex. 1957 ) (per curium). 18. In Shipley v. Unifund CCR Partners , 331 S.W. 3d 27 (Ct. App.

– Waco 2010, no pet.), a suit for debt, the plaintiff’s original petition’s sole reference to ownership or standing to litigate was the statement: “Plaintiff is authorized to file this petition.” The court ruled that this did not constitute “any evidence of standing.” Id., at 29. “The plaintiff must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Save Our Springs Alliance, Inc. v. C ity of Dripping Springs , 304 S.W. 3d 871, 878 (Tex. App.

– Austin 2010, no pet.). 19

. Appellee had no standing to bring this suit, and, therefore, the trial court did not have subject matter jurisdiction over this cause. The judgment should be reversed, v acated and set aside and this cause should be dismissed.

Prayer for Relief WHEREFORE, PREMISES CONSIDERED, appellant requests that
this Court in banc withdraw the opinion issued on February 26, 2015, and issue a new opinion find ing that the trial court er red in grant ing jud gment because (1) the citation wa s not in strict compliance with the Texas Rules of Civil Procedure as construed by the Texas Supreme Court, and therefore cannot sustain a default judgment ; (2) the petition failed to state a cause of
act ion ; and/or (3) the petition failed to give fair notice of the claim involved9 in that it did not state the predecessor in interest, the amount of credit extended, the purpose of the credit extension, the terms of the contract for repayment of the credit ex tension, nor the manner in which the alleged contract was breached. Appellant further requests upon finding any of the above errors that this Honorable Court reverse, vacate and set aside the trial court’s judgment and remand this cause for a new trial. I n addition, appellant requests that this Court find that appellant’s additional issue presented in this Motion, namely, that the trial court erred in granting judgment because of fundamental error, namely, that appellee had no standing in this cause and th erefore the trial court had no subject matter jurisdiction, is properly before this Court, and appellant further requests that this Honorable Court reverse, vacate and set aside the trial court’s judgment and dismiss this suit. Dated this 9 th day of Jul y, 2015

. Respectfully submitted, RONALD S. GUTIERREZ, LAWYER Las Colinas Station P. O. Box 143243 Irving Texas 75014

- 3243 Office: (512) 222

- 3488 Facsimile: (512) 233

- 2786 Email: rsg.lawyer@gmail.com By: /s/ Ronald S. Gutierrez Ronald S. Gutierrez State Bar No. 08644410
ATTORNEY FOR APPELLANT10 Certificate of Compliance I hereby certify that t he foregoing instrument is 2,019 words in length, including and excluding those matters provid ed in TEX. R. APP. P. 9.4(i)(2)(D) and 9.4(i)(3). /s/ Ronald S. Gutierrez Ronald S. Gutierrez

Certificate of Service I hereby certify that a true and correct copy of the foregoing instrument was deli vered via eServe, and/or via email at aregent@regentlawlcom, and/or via facsimile at (713) 490

- 7075, to Mr. Anh H. Regent, REGENT & ASSOCIATES, 2650 Fountain View, Suite 233, Houston, Texas 77057, Attorney for Plaintiff on July 9 , 2015

. /s/ Ronald S. Gutierrez Ronald S. Gutierrez