NUMBER 13-18-00280-CV & 13-18-00313-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

PROPEL FINANCIAL SERVICES, LLC, Appellant,

v.

CONQUER LAND UTILITIES, LLC, Appellee.

 

On appeal from the 206th District Court

of Hidalgo County, Texas.

 

OPINION

Before Justices Benavides, Longoria, and Hinojosa

Opinion by Justice Hinojosa

Appellant Propel Financial Services, LLC (Propel) appeals a no-answer default 

judgment in favor of appellee Conquer Land Utilities, LLC (Conquer), awarding 

$13,000,000 in damages, and post-judgment orders granting turnover relief and 
2

appointing a receiver.1 By three issues, Propel argues that: (1) the default judgment 

should be set aside by restricted appeal because error appears on the face of the record; 

and the trial court abused its discretion in (2) ordering turnover relief and (3) appointing a 

receiver. We reverse and remand.

I. BACKGROUND

Propel loaned Conquer $47,383.68. The loan was secured by a twelve-acre tract 

of land located in Hidalgo City, Texas. After Conquer defaulted on the loan, Propel sold 

the property at a foreclosure sale. Conquer sued Propel, alleging that Propel wrongfully 

foreclosed on the property and sold the property for only 5% of its appraised value. 

A. Service of Citation

Conquer filed its original petition on November 1, 2017. The petition identified 

Kohm & Associates, P.C., as Propel’s registered agent for service of process. Conquer 

requested that the Hidalgo County District Clerk issue a citation to Propel and serve the 

citation and petition by certified mail, return receipt requested. See TEX. R. CIV. P. 103, 

106. The citation was directed to “Propel Financial Services, LLC c/o Kohm & 

Associates, PC.”2 On November 9, the clerk filed the following digital return receipt from 

the United States Postal Service (USPS):

3

 1 In appellate cause number 13-18-00280-CV, Propel appeals the default judgment. In appellate 

cause number 13-18-00313-CV, Propel appeals the orders granting turnover relief and appointing a 

receiver. We have consolidated the appeals in the interest of judicial economy. 

2 An incomplete, unsigned certificate of return was attached to the citation. 

3 For readability, we include only the pertinent portion of the digital return receipt.
3

The digital return receipt contained the following reference identification:

B. Default Judgment

Propel failed to file an answer to the suit, and Conquer moved for default judgment. 

The motion was heard on December 4, 2017. At the hearing, Conquer’s counsel 

informed the trial court that “the return of service has been filed with the Court since 

November 9th.” Conquer then presented the testimony of Francisco Xavier Badir 

Vasquez Rezzah (Rezzah), Conquer’s managing member. Rezzah testified that the 
4

value of the foreclosed property was $4,000,000. He based his valuation on a “2008 or 

2009” appraisal of $3,000,080.4 Rezzah stated that he planned to develop two hotels 

and a commercial shopping center on the property. He estimated that “the loss of not 

being able to develop [on] this land is about $15,000,000 and $20,000,000.” Rezzah 

requested the trial court award $13,000,000 in damages, which he represented to be “the 

value of the property plus some of the lost income or some of the lost profits” for the 

planned development. 

The trial court rendered a default judgment in favor of Conquer and awarded

$13,000,000 in damages.

C. Amended Proof of Service

On January 29, 2018, Conquer filed a motion to amend the proof of service 

pursuant to Texas Rule of Civil Procedure 118. See TEX. R. CIV. P. 118 (providing for 

the amendment of process or proof of service). The trial court granted the motion, and 

the district clerk filed the following certificate of return on January 30, 2018:5

 4 Conquer did not enter the actual appraisal documents into evidence.

5 The certificate of return bears a November 9, 2017 file stamp. Conquer represents in its brief 

that the return was filed pursuant to the trial court’s order of January 30, 2018. 
5

D. Post-Judgment Orders

Following the default judgment, Conquer filed an application for turnover relief and 

a motion to appoint a receiver. After a hearing, the trial court signed separate orders 

granting the requested relief.

E. Appeal

Propel now challenges the default judgment by restricted appeal. See TEX. R.

APP. P. 26.1(c), 30. By a separate appeal, Propel challenges the trial court’s orders 

granting turnover relief and appointing a receiver. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(1) (West, Westlaw through 2017 1st C.S.) (providing for the interlocutory 

appeal of an order appointing a receiver); Alexander Dubose Jefferson & Townsend LLP 

v. Chevron Phillips Chem. Co., LP, 540 S.W.3d 577, 587 (Tex. 2018) (explaining that 

turnover orders, when injunctive in nature, are final and appealable).
6

II. DEFAULT JUDGMENT

By its first issue, Propel argues “the default judgment [should] be set aside 

because of errors on the face of the record” related to the citation and return of service. 

Propel also argues that “the evidence of Conquer’s purported damages is legally and 

factually insufficient.” 

A. Restricted Appeal

A restricted appeal is available for the limited purpose of providing a party who did 

not participate at trial with the opportunity to correct an erroneous judgment. Mandel v. 

Lewisville Indep. Sch. Dist., 445 S.W.3d 469, 474 (Tex. App.—Dallas 2014, pet. denied); 

In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.—Fort Worth 2000, no pet.). To prevail in a 

restricted appeal, an appellant must show that (1) the notice of appeal was filed within six 

months of the complained-of judgment; (2) the appellant was a party to the suit who did 

not participate in the hearing that resulted in the judgment; (3) the appellant did not timely 

file a post-judgment motion, request findings of fact and conclusions of law, or file a notice 

of appeal within the time permitted under Rule 26.1(a); and (4) error is apparent from the 

face of the record. TEX. R. APP. P. 26.1(c), 30; see Alexander v. Lynda’s Boutique, 134 

S.W.3d 845, 848 (Tex. 2004). In a restricted appeal, the face of the record consists of 

all papers that were before the trial court when it rendered its judgment. Alexander, 134 

S.W.3d at 848–49. Only the fourth element is at issue in this case—whether error is 

apparent on the face of the record. 

B. Amended Return

Propel first argues that Conquer’s return of service does not strictly comply with 
7

Texas Rule of Civil Procedure 107. See TEX. R. CIV. P. 107. As a threshold matter, we 

must determine whether we can consider the certificate of return filed after the entry of 

default judgment. 

Generally speaking, the record in a restricted appeal consists only of those 

documents on file with the trial court when the default judgment was entered. Eguia v. 

Eguia, 367 S.W.3d 455, 458 (Tex. App.—Corpus Christi 2012, no pet.); Laas v. 

Williamson, 156 S.W.3d 854, 857 (Tex. App.—Beaumont 2005, no pet.); Stankiewicz v. 

Oca, 991 S.W.2d 308, 311–12 (Tex. App.—Fort Worth 1999, no pet.). But Texas Rule 

of Civil Procedure 118 provides that a trial court may allow an amended proof of service 

“[a]t any time in its discretion[.]” See TEX. R. CIV. P. 118 (emphasis added). 

Recognizing a trial court’s Rule 118 discretion, Texas courts have considered postjudgment amendments to proof of process in limited circumstances.6 However, the trial 

court’s authority to grant a Rule 118 amendment extends only as far as its plenary power 

over the judgment.7 See Higginbotham v. Gen. Life & Acc. Ins. Co., 796 S.W.2d 695, 

 6 For instance, Texas courts have considered post-judgment amendments to proof of process in 

the context of motions for new trial and bill-of-review proceedings. See Higginbotham v. General Life & 

Accident Ins. Co., 796 S.W.2d 695 (Tex. 1990) (motion for new trial); Gonzalez v. Tapia, 287 S.W.3d 805 

(Tex. App.—Corpus Christi 2009, pet. denied) (bill of review). However, there is conflicting authority as to 

whether a post-judgment amendment may be considered in restricted appeals. Compare Primate Const. 

Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (explaining in a writ of error proceeding—predecessor to 

restricted appeals—that “[i]f the facts as recited in the sheriff’s return, pre-printed or otherwise, are incorrect 

and do not show proper service, the one requesting service must amend the return prior to judgment”) and 

Laas v. Williamson, 156 S.W.3d 854, 857 (Tex. App.—Beaumont 2005, no pet.) (concluding in restricted 

appeal that a corrected return filed after default judgment cannot cure defects in service) with Asset Prot. 

& Sec. Servs., L.P. v. Armijo, ___ S.W.3d ___, ___, No. 08-17-00250-CV, 2019 WL 290580, at *6 (Tex. 

App.—El Paso Jan. 23, 2019, no pet. h.) (explaining that a notable exception to the rule prohibiting 

consideration of materials filed after default judgment in restricted appeals relates to Rule 118 orders 

amending a return of service because such amendment relates back to the original return) and Dawson v. 

Briggs, 107 S.W.3d 739, 746 (Tex. App.—Fort Worth 2003, no pet.) (determining that Primate’s language 

requiring amendment of return prior to judgment was “mere dicta”). For the reasons mentioned in this 

opinion, we need not address this apparent conflict.

7 An exception to this limitation arises in bill-of-review proceedings. See TEX. R. CIV. P. 329b(f); 
8

696 (Tex. 1990) (recognizing a trial court’s authority to amend proof of process in relation 

to a motion for new trial); LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863, 868 (Tex. App.—

Fort Worth 2013, no pet.) (concluding that a trial court may sign a post-judgment order 

amending proof of process while it retains plenary power); Dawson v. Briggs, 107 S.W.3d 

739, 745 (Tex. App.—Fort Worth 2003, no pet.) (same); see also McCoy v. McCoy, No. 

02-17-00275-CV, 2018 WL 5993547, at *4 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.)

(mem. op.) (holding that the trial court did not have the authority to grant a Rule 118 

motion after its plenary power expired). 

Where, as here, no motion for new trial is filed, a trial court retains plenary 

jurisdiction for thirty days after signing a final judgment. TEX. R. CIV. P. 329b(d)–(f); see 

Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). The 

trial court’s plenary power expired on January 3, 2018 (thirty days after the December 4, 

2017 default judgment). See TEX. R. CIV. P. 329b(d), (e). Conquer did not move to 

amend the return of service until January 29, and the trial court’s order granting the 

amendment was not signed until January 30, well outside the trial court’s plenary 

jurisdiction. Therefore, the trial court’s Rule 118 order is void, and the amendment is of 

no effect. See Silguero v. State, 287 S.W.3d 146, 148 (Tex. App.—Corpus Christi 2009)

(orig. proceeding) (explaining that an order issued after the trial court’s plenary power 

expires is void). Accordingly, we do not consider the amended certificate of return in our 

review. 

 

Gonzalez, 287 S.W.3d at 806–09; Walker v. Brodhead, 828 S.W.2d 278, 281–82 (Tex. App.—Austin 1992, 

writ denied); see also McCoy v. McCoy, No. 02-17-00275-CV, 2018 WL 5993547, at *5 n.5 (Tex. App.—

Fort Worth Nov. 15, 2018, no pet.) (mem. op.) (recognizing that a trial court may sign a Rule 118 order in 

bill-of-review proceedings). 
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C. Compliance with Rule 107

Next, we consider Propel’s arguments regarding defects in the proof of process on 

file at the time of the default judgment. Specifically, Propel maintains that the USPS 

return receipt does not satisfy Rule 107. See TEX. R. CIV. P. 107. 

1. Applicable Law

There are no presumptions in favor of a valid issuance, service, and return of 

citation in the face of an attack on a default judgment by restricted appeal. See Primate 

Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). If the record fails to affirmatively 

show strict compliance with the rules of civil procedure governing issuance, service, and 

return of citation, error is apparent on the face of the record, and attempted service of 

process is invalid and of no effect. Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex.

App.—Dallas 2008, no pet.).

“The officer or authorized person executing the citation must complete a return of 

service.” TEX. R. CIV. P. 107(a). As relevant here, the return, together with any 

document to which it is attached, must include the following information: (1) the cause 

number and case name; (2) the court in which the case is filed; (3) a description of what 

was served; (4) the date and time the process was received for service; (5) the person or 

entity served; (6) the address served; (7) the date of service or attempted service; (8) the 

manner of delivery of service or attempted service; and (9) the name of the person who 

served or attempted to serve the process. Id. R. 107(b). When the citation is served by 

registered or certified mail, the return by the officer or authorized person must also contain 

the return receipt with the addressee’s signature. Id. R. 107(c). In addition, the officer 
10

or authorized person who serves or attempts to serve a citation must sign the return. Id. 

R. 107(e). The trial court may not grant a default judgment unless proof of service has 

been on file with the clerk of the court for ten days. Id. R. 107(h). 

2. Analysis

Propel argues that the USPS return receipt does not constitute a return of service 

as contemplated by Rule 107. We agree. 

The Hidalgo County District Clerk filed the digital return receipt (similar to a “green 

card”) bearing the clerk’s stamp in lieu of a completed certificate of return. The return 

receipt does not comply with Rule 107 in many respects. First, while the document bears 

the clerk’s file stamp, it is not signed by the person who served the citation. See TEX. R.

CIV. P. 107(e). This Court and others have previously rejected the notion that a “filed for 

record” stamp constitutes an endorsement under Rule 107. See Deutsche Bank Tr. Co. 

v. Hall, 400 S.W.3d 668, 670 (Tex. App.—Texarkana 2013, pet. denied); see also 

Dominguez v. State, No. 13-10-00289-CV, 2011 WL 579132, at *2 (Tex. App.—Corpus 

Christi Feb. 17, 2011, no pet.) (mem. op.). Second, the return receipt, which was not 

attached to any documents, fails to identify the court in which the case was filed and a 

description of what was served. See TEX. R. CIV. P. 107(b). 

Even if we were to view the district clerk’s file stamp on the return receipt as the 

signature of the officer serving the citation, a separate certificate of return would still be 

required. Rule 107 specifically distinguishes between a certificate of return and the 

return receipt. See id. R. 107(c) (“When the citation was served by registered or certified 

mail . . ., the return by the officer or authorized person must also contain the return receipt 
11

with the addressee’s signature.”) (emphasis added); Retail Techs., Inc. v. Palm City T.V., 

Inc., 791 S.W.2d 345, 347 (Tex. App.—Corpus Christi 1990, no writ) (holding that proof 

of service was defective where green card was filed but officer did not sign the certificate 

of return); see also JPMorgan Chase Bank, N.A. v. Tejas Asset Holdings, L.L.C., No. 05–

11–00962–CV, 2012 WL 3929798, at *1 (Tex. App.—Dallas Sept. 10, 2012, no pet.) 

(mem. op.). Therefore, when service is by certified mail, return receipt requested, the 

officer’s return must be filled out and completed; a postal return receipt alone will not 

support a default judgment. See Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 

74 (Tex. App.—Waco 1997, writ denied); see also JPMorgan Chase, 2012 WL 3929798, 

at *1 (“[T]he green card alone is not proof of service as required by [R]ule 107.”); 

Dominguez, 2011 WL 579132, at *2–3 (collecting cases requiring separate certificate of 

return); Gen. Motors Acceptance Corp. v. Sepulveda, No. 13-08-00055-CV, 2010 WL 

1019588, at *1 (Tex. App.—Corpus Christi Mar. 18, 2010, no pet.) (mem. op.) (concluding 

that file-stamped return receipt did not satisfy Rule 107 where the certificate of return was 

not filled out or signed). 

D. Summary

We conclude that the record fails to affirmatively show strict compliance with the 

rules of civil procedure governing issuance, service, and return of citation. Therefore, 

error is apparent on the face of the record, and the attempted service of process is invalid 

and of no effect. See Alexander, 134 S.W.3d at 848; Lytle, 261 S.W.3d at 840. We 

sustain Propel’s first issue.8

 8 Our conclusion regarding the return of service is dispositive of Propel’s restricted appeal. 

Therefore, we need not address Propel’s arguments concerning defects in the citation and the sufficiency 
12

III. TURNOVER AND RECEIVERSHIP ORDERS

By its second and third issues, Propel challenges the trial court’s orders granting 

turnover relief and appointing a receiver. Due to our resolution of Propel’s first issue, we 

must set aside the default judgment. When a default judgment is reversed on appeal, a 

trial court’s orders enforcing said judgment must also be reversed. See Ross v. Nat’l 

Ctr. for the Emp’t of the Disabled, 201 S.W.3d 694, 695 (Tex. 2006); Matthiessen v. 

Schaefer, 915 S.W.2d 479, 480 (Tex. 1995). Accordingly, we sustain Propel’s second 

and third issues.

IV. CONCLUSION

We reverse the trial court’s default judgment, order granting turnover relief, and 

order appointing a receiver. We remand the case for further proceedings consistent with 

this memorandum opinion. 

LETICIA HINOJOSA

Justice

Delivered and filed the

18th day of April, 2019. 

 

of the evidence supporting the damages award. See TEX. R. APP. P. 47.1.