Barker CATV Construction, Inc. v. Ampro, Inc.

OPINION ON MOTION FOR REHEARING

Our opinion of February 18, 1999, vacated a default judgment in favor of appellee, Am-pro, Inc. (Ampro), and remanded this cause for a new trial. Ampro has filed a motion for rehearing and a supplemental clerk’s record in support of the motion for rehearing. Appellant, Barker CATV Construction, Inc. (Barker Construction) opposes the motion for rehearing and has moved to strike the supplemental clerk’s record. We deny rehearing and decline to strike the supplemental clerk’s reeord, but issue this opinion as a supplement to our previous opinion. Our judgment of February 18, 1999, remains unchanged.

What Does the Record Show?

In its first issue on rehearing, Ampro challenges our conclusion that the record does not show that the trial court allowed Ampro to file an amended return of service, as authorized by rule 118 of the Rules of Civil Procedure, to reflect proper service on Barker Construction. Tex.R.Civ.P. 118. Ampro relies on a single document in the supplemental clerk’s reeord and claims this document compels a different conclusion.

A. “Face of the Record” in Restricted Appeals

As stated in our original opinion, a restricted appeal attacks error that is “apparent from the face of the record.” Tex. R.App.P. 26.1(c), 30; see Faggett v. Hargrove, 921 S.W.2d 274, 276 (Tex.App.—Houston [1st Dist.] 1995, no writ) (decided under writ of error practice, which restricted appeal replaced). The “face of the record” in a restricted appeal consists of the papers on file with the trial court when it rendered judgment. See General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 944 (Tex.1991). We may not consider evidence, accordingly, unless it was before the trial court when it rendered judgment. Id.; Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 73 (Tex.App.—Waco 1997, writ denied); Gerdes v. Marion State Bank, 774 S.W.2d 63, 65 (Tex.App.—San Antonio 1989, writ denied). The prohibition is appropriate because a restricted appeal directly attacks the judgment rendered. General Electric, 811 S.W.2d at 943 ; Faggett, 921 S.W.2d at 276 .

General Electric, Laidlaw, and Gerdes uniformly reject attempts to alter the “face of the reeord” limitation for writ of error proceedings (now restricted appeals) with evidence offered after the judgment, either to support or defeat a previously rendered judgment. General Electric, 811 S.W.2d at 943, 944 (affidavits by district clerk and counsel averring, after dismissal for want of prosecution, that notices contemplated by Tex. R.Civ.P. 165a and 306a neither given nor received); Laidlaw, 944 S.W.2d at 73 (affidavits by district clerk explaining, after default *795 judgment rendered, the usual procedures for service of process in Johnson County); Gerdes, 774 S.W.2d at 64-65 (addition of file mark by trial judge as a result of hearing conducted after default judgment rendered).

B. Ampro’s Supplemental Clerk’s Record

Apart from the cover, index, and bill of costs, the supplemental clerk’s record contains the following three items:

1. A two-page letter from Ampro’s counsel to the County Clerk of Harris County. It is dated March 4, 1999, filed with the county clerk on that date, and requests a supplemental clerk’s record.

2. A document attached to Ampro’s March 4, 1999 letter and described in that letter as a copy of the document Ampro asks the clerk to include in the supplemental clerk’s record.

3. An irrelevant trial court’s docket sheet.

Ampro’s March 4,1999 letter described the document Ampro wishes us to consider, as follows:

We wish to make request to supplement the record with one relevant document that was not included within the Clerk’s original record. The missing document is a memorandum prepared by the Court advising [Ampro’s] counsel of a defect in the Sheriff’s return that needed to be corrected. A copy of the memorandum is included with this letter. The memorandum advises [Ampro’s] counsel that “service return needs to read exactly as front of citation — ‘Barker CATV Construction, Inc. by delivering to James A Barker, registered agent.’ Not just ‘James Barker’.”

We are requesting that the record be supplemented with this document pursuant to Tex.R.App.P. 34.5(c)(1).

(Emphasis added; quotation marks as in original).

Ampro relies on the document, which it describes as “a memorandum prepared by the Court,” to establish:

• that the trial court expressly requested that Ampro amend the return;

• that the trial court necessarily allowed Ampro to file the amended return, as authorized by rule 118; and

• that both of these events necessarily occurred before the trial court rendered the default judgment.

We conclude the document is not properly before us as reflecting the record of the clerk of the trial court.

Rule 34.5(e) of the Texas Rules of Appellate Procedure allows the trial court, the appellate court, and any party to supplement the existing clerk’s record if “any relevant item has been omitted.” Tex.R.App.P. 34.5(e). All that is needed is a letter directing the clerk of the trial court to prepare, certify, and file with the court of appeals a supplemental clerk’s record containing the omitted item. Id.

Like its predecessor, rule 55, however, rule 34.5(c) does not permit the record in a restricted appeal to be supplemented unless it is clear that the item to be considered was before the trial court when it rendered the default judgment. Laidlaw, 944 S.W.2d at 73 ; Gerdes, 774 S.W.2d at 64-65 . This is consistent with the “face of the record” limitations we addressed above, and is implied in rule 35.5(c)’s requirement that the relevant item have been “omitted from the clerk’s record.” Tex.R.App.P. 35.5(c).

Ampro’s letter of March 4, 1999, identified the document the clerk was to include in the supplemental clerk’s record. In addition, Ampro attached a copy of the document to its letter. But the copy attached to Ampro’s letter is the only copy of the document in the supplemental record. Ampro’s copy is not certified by the district clerk, except as an attachment to Ampro’s letter of March 4, 1999. Further, while the document bears the heading “Court at Law Number Four,” there is nothing to show when the court issued it, or if the court issued it. Finally, the document has no file-stamp or other marking to indicate that it was part of the record of the court below. More importantly, the document does not establish, and the parties dispute, that it was *796 part of the record when the trial court rendered the default judgment.

We conclude that we may not consider the document in support of Ampro’s motion for rehearing. While we decline to consider the document, we nevertheless deny Barker Construction’s motion to strike the supplemental clerk’s record in its entirety. See Tex. R.App.P. 34.5(c)(3) (“Any supplemental clerk’s record will be part of the appellate record.”).

Conclusion

We remain convinced that the record fails absolutely to show service on Barker Construction. Accordingly, we deny Ampro’s motion for rehearing and Barker Construction’s motion to strike the supplemental clerk’s record filed with this Court on March 10,1999.