Roman v. Ramirez

573 S.W.3d 341

Edith ROMAN, Appellant,

v.Jose Luis Rios RAMIREZ, Sr., Velia Rios Ramirez and Jose Luis Ramirez, Jr., Appellees.

No. 08-18-00041-CV

Court of Appeals of Texas, El Paso.

February 8, 2019

ATTORNEY FOR APPELLEE: Hon. Susan Forbes, Forbes & Forbes, 711 Myrtle, El Paso, TX 79901.

APPELLANT PRO SE: Edith Roman, P. O. Box 13734, El Paso, TX 79913.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Edith Roman appeals a default judgment taken against her in a suit to declare a lien invalid and unenforceable. Her first issue on appeal--a challenge to the proof of service to support the default judgment--was decided adversely to her in a previous mandamus action. We conclude that prior decision is now law-of-the-case. As to her other issues, we reject several of her challenges to the sufficiency of the evidence, as well as her claim that the trial court erred in denying a motion for new trial. We sustain her challenge to the appellate attorney’s fees awarded in the default judgment and modify the judgment to conform that award to the evidence presented below. As modified, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The Lawsuit Below

On June 7, 2017, Jose Luis Ramirez, Sr, Velia Rios Ramirez, and Jose Luis Rios Ramirez, Jr. (collectively, the Rios family) filed suit against Edith Roman complaining of liens that she recorded against two properties.¹ One property was Jose Luis Ramirez Sr. and Velia Ramirez’s homestead. The other property was owned by Jose Luis Rios Ramirez, Jr., and had been leased to Edith Roman and her husband, Alejandro Hernandez. Roman was evicted from the property on March 20, 2012 for non-payment of rent. Seven days later, she filed liens against both the property she had leased, and Jose Luis Ramirez Sr. an Velia Ramirez’s homestead.

The Rios family’s lawsuit alleged various deficiencies in the lien filings, and they sought a declaration that the liens are invalid and unenforceable. The lawsuit additionally asserted claims for slander of title and violation of Chapter 12 of the Civil Practices and Remedies Code. In addition to the damages sought for those claims, the lawsuit asked for attorney’s fees and exemplary damages.

Service of Process

The Rios family hired a private investigator, Gregory Williams of CWI Investigations, to locate and serve Roman. The investigator learned that Roman was living at an Anthony, New Mexico address. The Rios family filed a motion for substituted service which sought permission to leave the citation and suit papers with anyone over the age of sixteen at the New Mexico address. The motion was supported by an affidavit of the investigator describing his efforts to locate Roman. That motion for substituted service, however, was never acted on. Instead, the trial court signed an order that authorized Gregory Williams or Victor Hernandez of CWI Investigations to serve the process on Roman at the New Mexico address or wherever she could be found.

Roman called CWI Investigations on July 17, 2017 and offered to accept service at a Walgreens located in El Paso, Texas that same day. According to Williams, the petition, citation, and the order authorizing service were all placed inside a manila envelope. Williams and his partner met Roman and her husband, Alejandro Hernandez, at the Walgreens, and after confirming her identity, he handed her the envelope. Williams documented the encounter with a photograph of Roman’s passport which she provided to confirm her identity. He also photographed the vehicle that she arrived in and took a photograph of Roman holding the manila envelope.

The Rios family filed the return of service (endorsed on the backside of the citation) on July 18, 2017. The citation and return are at issue in this case, so we describe them further. The citation is directed to Edith Roman, with a typewritten El Paso address. That address is struck through and two addresses are handwritten on the citation: the New Mexico address where she lived, and the Walgreen’s Pharmacy where she agreed to meet Gregory Williams to be served.

The backside of the citation contains the return. One section titled "Certificate of Delivery" reads: I do hereby certify that I delivered to ________ on the 17 day of July, 2017 at 7:45 o'clock p.m. this copy of this instrument." The section is signed by Gregory Williams, notarized, and contains the handwritten address of the Walgreens where he met Roman. Roman’s name, however, is handwritten into a blank intended to identify the sheriff, if a sheriff served the process. In effect, Williams appears to have inserted Edith Roman’s name into the wrong blank. The blanks are stacked on top of each other, separated by several other pre-printed blank lines.

Based on the service date, Roman’s answer was due to be filed by August 7, 2017.

Default Judgment

On August 8, 2017, the Rios family filed a motion for default judgment. The trial court signed a default judgment the next day. The judgment declared the liens on the two properties of no force and effect. It also awarded the following sums against Roman: $10,000 as statutory damages for filing the liens; $4,536.93 attorney’s fees through trial; $10,000 for any appeal to the court of appeals; and $5,000 at Texas Supreme Court.

Post-Judgment Motions

Roman timely filed a motion for new trial. The motion asserted that Roman was not properly served in strict compliance with Rules of Civil Procedure 103, 106(a) and (b), and 107, thus denying jurisdiction to render the default judgment. In part, Roman complained about Gregory Williams’s affidavit used to support the motion for substituted service and the grounds asserted in that motion (which the trial court had never acted upon). The motion further contends that Williams was not authorized to serve process under Rule 103.

The motion for new trial asserted two other arguments important here. First, she claimed that the citation was not actually served on Roman. She supported that claim through her and Alejandro Hernandez’s declarations that contend there was no citation in the manila envelope.² Second, she complained of defects in the citation. Roman pointed out that her name had been written into a blank intended to identify a sheriff who might have served the petition, and not the blank identifying the person served. Along the same lines, the motion further claimed the citation was missing several other requirements set out in Rule 107.

The Rios family filed a response that aside from addressing each legal argument, included affidavits from their attorney and the attorney’s secretary attesting that the manila envelope given to Williams contained both the petition and citation, as well as the order authorizing service. Williams affidavit then described how he personally handed the envelope to Roman, including the photographs he took documenting the service of process. Williams' partner similarly swore that the envelope was handed to Roman at the Walgreen’s parking lot.

On August 18, 2017, the trial court signed an order requiring the El Paso County Clerk to remove specified lien filings by Roman unless she posted a bond suspending enforcement of the order. Roman filed a motion to stay that order, based on her motion for new trial. The Rios family also obtained a writ of execution on the judgment. Roman responded with a motion to dissolve that writ. Roman then filed an amended motion for new trial that added two substantive arguments. First, she contended the judgment was not final because it did not dispose of the slander and exemplary damages claim that were alleged in the original petition. Second, she claimed that her failure to answer was not intentional or the result of conscious indifference.

The trial court denied both the motion for new trial and motion to stay.

Mandamus and First Appeal

Roman then filed two proceedings in this Court. First, she filed a notice of appeal which we docketed as case No. 08-17-00235-CV. Roman also filed a Petition for Mandamus that asserted two issues. In re Roman , 554 S.W.3d 73, 75-76 (Tex. App.--El Paso 2018) (original proceeding).³ In her first issue, Roman argued that the default judgment was void because the court lacked personal jurisdiction over her. The five subparts of that argument from the table of authorities in the Petition for Mandamus are as follows:

Affidavit in Support of Motion for Substituted Service is Invalid

Ms. Roman Was Not Served With a Copy of The Citation

Ms. Roman Was Not Served With a Copy of The Order Authorizing Service Other than By Certified Process Server

The Return of Service is Defective

No Adequate Remedy by Appeal

The body of the brief included argument that tracked each of these section headers. We overruled that issue, however, finding that "[t]he mandamus record conclusively establishes that Roman was personally served by Gregory Williams on July 17, 2017 with a copy of the petition, the citation, and the order for service on July 17, 2017." In re Roman , 554 S.W.3d at 79.

In her second mandamus issue, Roman successfully convinced us that the default judgment was not final. The default had not disposed of the slander of title and exemplary damage claims. We therefore granted her partial relief, ordering that the trial court set aside a writ of execution that the Rios family has filed. In re Roman , 554 S.W.3d at 79.

Roman filed a motion for rehearing of our decision that expanded upon her jurisdictional argument. Her first point for reconsideration stated:

The mandamus record DOES NOT conclusively establish that Roman was personally served by Gregory Williams on July 17, 2017 with a copy of the petition, the citation, and the order for service on July 17, 2017.

Her argument focused on claimed defects in the return: "The return does not name Ms. Roman or any person, upon whom delivery of the citation was made, the section where the name of the person served should go, is blank." She argued that instead, her name "appears where the...