### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00311- CV

Lucy Gutier rez , Appellan t

v. P ortfolio Recove ry Associat es, LLC, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 12- 0070 38, H ONO RAB LE J. DAVID P HI LLIP S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is a restric ted app ea l fr om a “no-a nswer” defa

ult judgme nt that appellee Portfolio Recove ry Associates, L L C (Portfolio) obtained ag ainst appellant L ucy Gu t i er re z. Gutierre z contends that the trial court err ed in rende ring the judgme nt beca use (1) the service of citation was fata lly defe ctive an d (2 ) P o rt fo l io’s petition failed to state a cause of action and did not g ive Gutierre z fa ir notice of the claim involved. We w ill af firm the trial court’s judgme nt.

BACK GR OUND Portfolio sued Gutierre z for “suit on open & stated acc ount/debt/breac h of contra ct.” Portfolio filed a motion for defa ult judgme nt alleg ing that Gutierre z failed to respond to Portfolio’s petition. The trial court signed a final defa ult judgme nt order ing that Portfolio rec over $4,448.61 from Gutier

rez. Gutierr ez timely

filed her notice of r estricted a

ppeal.DISCUSSIO N

Stan dard and scope of rev iew

Gutierre z challeng es the defa ult judgme nt by restri ct ed appea l. See Tex. R. App. P. 30; Alexander v. Lynda’s Boutique , 134 S.W .3d 845, 848 (Tex. 2004). To preva il, Gutierre z must establish that: (1) she filed notice of the restric ted appea l within six months afte r the judgme nt

was signe d; (2) she was a party to the underlying lawsuit; (3) she did not participa te in any hear ing that res u l t ed i n the judgme nt complained of and did not timely file any postjudgment motions or reque sts for finding s of fac t and conclusions of law; an d (4 ) er ro r is appar ent on the fac e of the

rec ord. Id. Only

the fourth e lement is in dispute here. For the purposes of a restric ted appea l, the fac e of the rec ord consists of the cler k’s

rec ord, the repor

ter’s rec ord (i f o n e was made) , and any evidenc e otherwise prese nted to the trial court befor e final judgme nt. See Norman Comm c’ns v. Texas Eastman Co. , 955 S.W .2d 269, 2 7 0 (Tex

. 1997) (per curia m); Schoendie nst v. Haug , 399 S.W .3d 313, 316 (Tex. App.—Austin 2 0 1 3, no pet.). Error must be appar ent from the fac e of the rec ord, not inferr ed from the rec ord. S choendie nst , 399 S.W .3d at 316. I n a restric ted appea l, as in an ordinary appea l, we rev i ew t h e entire c ase. See Norman , 955 S.W .2d at 270; Schoendie nst , 399 S.W .3d at 316.

Service of citation I n her first issue, Gutierre z contends that the service of citation was fata lly defe ctive beca use the return of service failed to include a valid date and time that the proce ss serve r rec eived the documents. The offi ce r’ s re t urn at the bottom of the citation bear s a stamp rea ding, “See Attache d Return of Service ,” and the attache d aff idavit of service s t ates that the proce ss serve r 2“re ceive d the documents sta t ed b el o w on 07/19/12 18:21 pm.” Gutierre z asser ts that the time stated in the aff

idavit is invalid beca

use it confla tes two methods for telling time: milit ary time and standard time. Acc ording to Gutierre z, “18:21 pm” is ambig uous beca use the intended time c ould have been 6:21 pm or 8:21 pm, depending on the ty pog raphic al err or the proce ss serve r committed. I n addition, Gutierre z arg ues that Portfolio judicially admitted that the time is invalid. Proper citation and return of service are requ i re d for the trial court to exercise persona l jurisdiction over the defe ndant. TAC Ams., Inc. v. Boothe , 94 S.W .3d 315, 318–19 (Tex. A p p . — A u s ti n 2 0 0 2 , n o p e t. )

. St

r ic t c o mp li a

n c e w it h th e r u le s f o r s e r v ic e o f c it a

ti o n mu s t a f

f ir ma ti v e ly appea r on the rec ord for a d efault judgme nt to withstand a direc t attack. Primate Constr., Inc. v. Silver , 884 S.W .2d 151, 152 (Tex. 1994). I n an attack on a defa ult judgme nt by restric ted appea l, we make no presumptions in favor of a valid issuance, service , or return of citation. Boothe , 94 S.W .3d at 319. “Virtua lly any deviation will be sufficie nt to set asid e a d efa ult judgme nt” in a restric ted appea l. Bec ker v . Russell , 765 S.W .2d 899, 900 (Tex. App.—Austin 1989, no writ).

The return of service must include “the date an d t i m e the proce ss was rece ived for service .” Tex. R. Civ. P. 107(b)( 4). We c onclude that the re turn of ser vice in this case included a valid date and time. The aff idavit indicates that the serve r rec eived the documents at 6:21 pm, which is 18:21 in milit ary time. The only way “18:21 pm” could be an err or, as Gutierre z contends, 1 is if the proce ss serve r intended to use standard time. I f s o , the time noted would include a

I n her brief, Gutierre z, without citing additional authority or providing explanation, asser ts 1 that Portfolio’s service of citation was fata lly defe ctive beca use “the proce ss serve r failed to endorse the return on the orig inal ci t at i o n wi th the day and hour on which he rec eived it.” To the extent Gutierre z arg ues that the date and time must appea r on the bottom portion of the cit at i o n itself in addition to the attache d aff idavit of serv i ce , we re

j ec t that arg ument. Rule 107 states that “[t] he return ma y , but need not, be e ndorsed on or attache d to the citation.” Te x . R. Civ. P . 107(a)

. 3ty

pog raphic al err or. I f, howeve r, the proce ss serve r’s not at i o n i s in milit ary time, then the “pm” is redunda

nt, but the time is not ambig uous. Either way , the time notation does no t cr ea t e an impermissible ambig uity

. Although th is Court has previously rec og nized that “we cannot ignor e temporal ref

ere nces in the citation’s return that are nonsensical and incap able of rec onciliation,” Boothe , 94 S.W .3d at 321, “18:21 pm” is n o t n o nsensical and does not contra dict times provided elsewhe re in the aff

idavit, which noted that the proce ss serve r serve d the documents on J uly 20, the day afte r re ceiving the documents.

We next consider whether Portfolio judicially admitted th at the time included in the af fidavit was ambiguous. After Gutierre z filed her notice of appea l, Portfolio filed, in the trial court, a motion for leave to file amende d return of service

. The trial court g rante d the motion, and Portfolio filed an amende d return s t at i ng that the proce ss serve r rec eived the documents “on 07/19/12 6:21 pm.” Gutierre z arg ues that by filing an amende d return in the trial court Portfolio has made a ju d icial admission that the orig inal return of service was ambig uous. We conclude that 2 Portfolio’s motion to amend was not a judicial admission beca use it was not a delibera te, clea r, and unequivoca l admission that the orig inal return was ambig uous. See Catherman v. First State Bank of Smithville , 796 S.W .2d 299, 302 (Tex. App.—Austin 1990, no writ) (judicial admission must be “deliber ate, c lear , and unequivoc al”)

.

Be cause we conclude that the orig inal return of service was sufficie nt and that Portfolio has not made a judicia l admission to t he contr ary , we ove rrule G utierre z’s first issue.

Gutierre z also arg ues t hat t he trial court lacked the authority to g ran t P o rt fo l io’s motion 2 t o amend the return. Be cause we conclude that the orig inal return was sufficie nt without g iving eff ect to the a

mended r eturn, we do not decide whether Portfolio’s amendment wa s valid. 4Sufficiency of the pleadings I n her second and third issues, Gutierre z contends that Portfo l i o ’s petition fails to state a cause of action and does not g ive Gutierre z fair notice of Portfolio’s claim. “Te x as follows

a ‘ f a ir n o ti c e ’ s ta

n d a r d f o r p le a d in g , in w h ic h c o u

r ts a s s e s s th e s u f

f ic ie n c y o f p le a d in g s b y d e te r mi n in g whether an opposing party can asce rtain from the pleading the nature , basic issues, and the ty pe of evidenc e that migh t b e re levant to the controve rsy .” Low v. Henry , 221 S.W .3d 609, 612 (Tex. 2007); s ee a l

s o T ex. R. Civ. P. 45 (petition shall “consist of a statement in plain and concise lang uag e of the plaintiff’s cause of action”) ; Tex. R. C i v . P

. 4 7 (petition shall contain “a short

s t at em en t of t he cause of action sufficient to g ive fair notice of the claim involved”). “A peti t i o n is sufficie nt if it g ives fair and adequa te notice of the fac ts upon which the pleade r bases his claim. The purpose of this rule is to g ive the opposing party information sufficie nt to enable him to prepa re a defe nse.” Horizon/CMS Healthcare Corp. v. Auld , 34 S.W .3d 887, 897 (Tex. 2000) (quoting Roark v. Allen , 633 S.W .2d 804, 810 (Tex. 1982)); see also Hays Cnty. v. Hays Cnty. W ater P l anning P’ship , 69 S.W .3d 253, 258 (Tex. App.—Austin 2002, no pet.) (“F air notice under the rules is met if an opposing attorney can asce rtain the nature and the basic issues of the controve rsy f r o m th e p le a d in g s . ” )

. A c c o r d in g ly , a p la in ti f f is n o t r e q

u ir e d to “ s e t o u t in h is p le a d in g s th e e v id e n c e upon which he relies to establish his asser ted cause of action.” Paramount Pipe & Supply Co., Inc. v. Muhr , 749 S.W .2d 491, 494–95 (Tex. 1988).

We conclude that Portfolio’s petition sufficie ntly pleads a cause of action for brea ch of contra ct ag ainst Gutierre z. “When a cause of action is based on brea ch of contra ct, the plaintiff must show that a contra ct exis ted betwee n the parti es , t h at the contra ct cre ated duties, that the

5defe ndant brea ched a duty under the contra ct, and that the plaintiff sustained damag es as a result.”

Snyder v. Eanes Indep. Sch

. Di s t

. , 8 6 0 S.W .2d 692, 695 (Tex. App.—Austin 1993, writ denied) ;

see also Hur v. City of Mesquite , 893 S.W .2d 227, 233 (Tex. App.—Amar illo 199 5 , writ denied) (listing alleg ations party must make to plead cause of action for brea ch o f co n t ra ct). Portfolio’s petition alleg es that Gutierre z entered into an ag ree ment with Portfolio’s prede cessor in interest wher eby Gutierre z acc epted an extension of cre dit and beca me bound to repa

y the debt. The petition further alleg es t hat Guti err ez brea ched her duty to make the require d pay ments and that Gutierre z

o w e s Po r tf o li o a b a la n c e o f $ 4 , 4 4 8

. 6 1

. T h e s e a ll e g a ti o n s a r e s u f f ic ie n t to a ll o w G u

ti e r r e z to “ a s c e r

ta in the nature and the basic issues” of Portfolio’s brea ch-of -contra ct claim. See Hays Cnty. , 69 S.W .3d at 258. There fore , Portfolio’s petition is sufficie nt to support the trial court’s defa ult judgme nt, and

we need not consider whether Portfolio proper ly pleade d additional cause s of action. We overr ule Gutierre z’s second and third issues.

CONCLUSION

Having overr

uled eac h o f G u

ti err ez’s issues, we aff

irm the judgme nt of the trial court.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: F ebrua

ry 26, 2015

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