Denise Lynn Barrett v. Westover Park Community Association, Inc.

Opinion issued March 1, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01112-CV

———————————

Denise Lynn Barrett , Appellant

V.

Westover

Park Community Association, Inc. , Appellee

On Appeal from the County Court at Law No. 2

Galveston County, Texas

Trial Court Case No. CV-63,313

MEMORANDUM OPINION

In this appeal of a no-answer default

judgment, Denise Lynn Barrett contends that (1) she was not served with the

citation or petition, (2) she satisfies the Craddock

v. Sunshine Bus Lines, Inc. , 133 S.W.2d 124, 126 (Tex. 1939), standard for setting aside a default

judgment and ordering a new trial, and (3) the trial court violated due-process

guarantees by entering a default judgment before she received notice of the lawsuit.

Finding that Barrett has waived appellate review of these contentions, we

affirm the trial court’s judgment.

Background

Barrett owns real property

in the Westover Park subdivision of Galveston County, Texas. All Westover Park

properties, including Barrett’s property, are encumbered by a declaration and

“supplemental amendment” of covenants, conditions, and restrictions authorizing

Westover Park Community Association, Inc. to levy certain assessments against

property owners and to establish vendor’s liens securing the payment of those assessments.

When Barrett failed to pay a

maintenance assessment, the Association filed suit on July 16, 2010 to collect

the delinquent fee and to foreclose the lien encumbering her property. Two days

later, the district clerk issued a citation reading:

You have been sued. You may

employ an attorney. If you or your attorney do not file a written answer

with the Clerk who issued this citation by 10:00 a.m. on the Monday next after

the expiration of twenty days after the date you were served with this citation

and petition, a default judgment may be taken against you.

Using a process server, the Association personally served

Barrett with the citation and petition on July 22, 2010. She did not answer the

petition.

On November 12, 2010, the trial

court rendered a default judgment requiring Barrett to pay the delinquent

assessment fee and attorney’s fees and providing for the establishment and

foreclosure of the vendor’s lien on her property. The default judgment further

authorized the seizure and sale of Barrett’s property in satisfaction of the

judgment. The trial court ordered any amount collected from the property’s sale

exceeding the amount of the delinquent fee returned to Barrett.

According

to Barrett, she discovered the default judgment on November 18, 2010, six days

after it was rendered. She argues not that the Association failed to follow the

rules for service of process, but that service could not have been achieved as

the Association alleges because, at the time stated in the process server’s

affidavit, she was tending to her terminally-ill father outside of the home. Only

when she returned home did she discover a notice of a status hearing in the

case. Barrett immediately went to the trial court and there learned of the

default judgment.

Although she learned of the

judgment within the time for filing post-judgment motions, Barrett did not move

for a new trial or otherwise seek to set aside the judgment in the trial court.

Instead, on December 10, 2010, she timely filed a notice of appeal. She alleges

that an “unknown male” court employee informed her that an appeal was “the only

action she could take at that time.”

Default Judgment Cannot be Set Aside under

Craddock

This is a

direct appeal from the trial court’s default judgment. [1] Barrett must therefore

satisfy the Craddock standard before

the default judgment can be set aside. See

Massey v. Columbus State Bank , 35 S.W.3d 697, 699 (Tex. App.—Houston [1st

Dist.] 2001, pet. denied). Craddock requires

three showings: (1) Barrett’s failure to appear was not intentional or the

result of conscious indifference, (2) Barrett has a meritorious defense, and

(3) the granting of a new trial will not operate to cause delay or injury to

the Association. 133 S.W.2d at 126 . To that end, Barrett

asserts in her first three issues that she failed to appear because she never

received a copy of the citation or petition; the maintenance fee assessed by

the Association was either unclear or not authorized by the conditions,

covenants, and restrictions to which her property is subject; and the

Association would not be prejudiced by a new trial. We cannot determine whether

the default judgment should be set aside for any of these reasons, however,

because Barrett did not preserve error for our review.

A motion for new trial affords a

defendant her first opportunity to attack a default judgment. See L.M. Healthcare, Inc. v.

Childs , 929 S.W.2d 442, 443 (Tex. 1996) (per curiam );

Coinmach , Inc. v. Aspenwood

Apt. Corp. , 98 S.W.3d 377, 380 (Tex. App.—Houston [1st Dist.] 2003, no

pet). When the attack on a default judgment relies on extrinsic

evidence, a motion for new trial is a prerequisite to complaining on appeal

that the default judgment should be set aside. See Massey , 35 S.W.3d at 699 (“Complaints regarding the trial

court’s failure to set aside a default judgment must be raised in a motion for

new trial.”); Puri v. Mansukhani ,

973 S.W.2d 701, 715 (Tex. App.—Houston [14th Dist.] 1998, no pet.) ( explaining that motion for new trial or to set aside default

judgment is complaint on which evidence must be heard); see also Llorance v. Sohi ,

No. 01-07-00840-CV, 2008 WL 1747921 , at *3 (Tex. App.—Houston [1st Dist.] Apr. 17, 2008, no pet.) ( mem . op.); In re

Marriage of Collins & Tipton , No. 07-06-0314-CV, 2008 WL 3930559 , at *2

(Tex. App.—Amarillo Aug. 27, 2008, no pet.) ( mem . op.) ( holding that,

because appellant failed to move for new trial, he failed to preserve complaint

on appeal that trial court erred by entering a default judgment). This is so

the trial court has the opportunity to consider and weigh the evidence. Ginn v. Forrester , 282 S.W.3d 430, 432 (Tex.

2009) (per curiam ); see also Harris v. Burks , No. 01-06-00128-CV, 2007 WL 1776048 , at

*2 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.)

( mem . op.) ( explaining that complaints regarding trial court’s failure

to set aside default judgment must be raised in motion for new trial because

trial court must hear evidence to determine whether Craddock factors have been met).

Barrett

alleges that she discovered the default judgment on November 18,

2010, six days after it was rendered. And, she timely filed her notice of

appeal on December 10, 2010, two days before the expiration of the thirty-day

period to file a motion for new trial. Tex.

R. Civ. P. 329b( a) (time to file new trial

motion). By her own admission, Barrett knew about the default judgment within

the period for challenging it by way of a new trial motion, which she was

required to do in order to complain on appeal that the trial court failed to

set aside the default judgment. See id. ; see

also Tex.

R. Civ. P. 324(b )( 1) ( requiring point in motion for new trial for failure to

set aside default judgment). Because Barrett did not file a motion for new

trial, she did not develop the evidence necessary to contradict the process

server’s affidavit averring that he personally served her on July 22, 2010. Nor

did she develop the evidence necessary to contradict the Association’s position

that it had appropriately assessed a maintenance fee that Barrett refused to

pay.

The

deficiencies in the record cannot be cured by Barrett’s submission of affidavits

executed after the case reached this Court. Those affidavits are not a part of

the appellate record, and we may not consider them. See Nogle &

Black Aviation, Inc. v. Faveretto , 290 S.W.3d

277, 286 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Canton-Cater v. Baylor Coll. of Med. , 271 S.W.3d 928 , 931 n.2 (Tex. App.—Houston [14th Dist.] 2008, no

pet.). Consequently, we hold that Barrett has waived appellate review of

her complaint that the trial court’s default judgment should be set aside under

Craddock . Massey , 35 S.W.3d at 699 (holding that

default judgment could not be set aside where no motion for new trial was filed

raising Craddock factors). Accordingly,

Barrett’s first, second, and third issues are overruled.

Default

Judgment Does Not Violate Due-Process Guarantees

In her fourth issue, Barrett argues

that the rendition of a default judgment before she received notice of the

lawsuit violates due-process guarantees. This argument is premised on Barrett’s

assertion that the facts stated in the process server’s affidavit regarding

personal service of the citation and petition are incorrect. Because extrinsic

evidence is necessary to contradict those facts, this issue is likewise waived by

Barrett’s failure to move for a new trial. S ee Washington v. Taylor ,

No. 01-08-00255-CV, 2010 WL 1571201 , at *2 (Tex. App.—Houston [1st Dist.] Apr. 8, 2010, no pet.) ( mem . op.) ( holding that

appellant waived his complaint that he did not receive notice of hearing where

he did not file motion for new trial) . We therefore

overrule her fourth issue.

Conclusion

We affirm the trial court’s

judgment.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

[1] The Association urges us to limit our

review to “errors apparent on the face of the record,” as we would in a

restricted appeal. See Fidelity & Guar. Ins. Co. v. Drewery Constr. Co. , 186 S.W.3d 571, 573 (Tex. 2006)

(comparing scope of appellate review in ordinary appeals and restricted

appeals); Marrot Commc’ns , Inc. v.

Town & Country P’ship , 227 S.W.3d 372, 379

(Tex. App.—Houston [1st Dist.] 2007, pet. denied) (explaining that, unlike

restricted appeals, when party attacks default judgment with motion for new

trial she may develop evidence establishing Craddock

factors). But this is not a restricted appeal. The rule providing for

restricted appeals excepts from its scope parties who,

like Barrett, timely file “a notice of appeal within the time permitted by Rule

26.1(a) . . . .” Tex. R. App. P .

30; see Tex. R. App. P . 26.1(a) (providing that, in civil cases, a

party must file notice

of appeal within thirty days after judgment).