In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00201-CV ___________________________
BROOKFIELD FUNDING, LLC AND VISTA POINTE FUNDING, LLC, Appellants
V.
RAMEY & KING INSURANCE ASSOCIATES, INC., Appellee
On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2024-03979
Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
Appellants Brookfield Funding, LLC and Vista Pointe Funding, LLC bring this
restricted appeal from a no-answer default judgment entered in favor of Appellee
Ramey & King Insurance Associates, Inc. Appellants assert that the trial court erred
by granting Ramey King’s motion for default judgment because they were not
properly served with process. Because we agree that service was defective, we reverse
the trial court’s default judgment.
I. BACKGROUND
On November 15, 2024, Ramey King filed suit against Appellants, alleging
claims for breach of contract and suit on sworn account. Specifically, the petition
alleged that Ramey King had provided insurance-related services to Appellants and
had invoiced them for these services but that Appellants had failed to pay the
amounts due.
On November 15, 2024, citations were issued for both Appellants. The returns
of service were filed on November 25, 2024. The service returns’ descriptions of
what was served are limited to a single section labeled “Documents,” and both returns
list only the “[c]itation” in this section. Neither return references the petition, much
less states that it was served with the citation.
Appellants did not answer or otherwise appear. On December 10, 2024, the
trial court signed a default judgment awarding Ramey King $47,062 in damages plus
attorney’s fees and court costs. This restricted appeal followed.
2 II. SCOPE AND STANDARD OF REVIEW
To prevail in a restricted appeal, an appellant must establish that (1) it filed
notice of the restricted appeal within six months after the judgment was signed, (2) it
was a party to the underlying lawsuit, (3) it did not participate in the hearing that
resulted in the judgment complained of and did not timely file any postjudgment
motions or requests for findings of fact and conclusions of law, and (4) error is
apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see also Ex parte E.H., 602 S.W.3d
486, 497 (Tex. 2020) (confirming that, unlike the first three restricted-appeal
requirements, the error-on-the-face-of-the-record requirement is not jurisdictional).
For purposes of a restricted appeal, the face of the record consists of all the papers on
file in the appeal, including the clerk’s record and the reporter’s record. Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).
III. DISCUSSION
Here, it is undisputed that the first three restricted-appeal elements are satisfied;
the only question is whether there is error on the face of the record.1 See Alexander,
1 Although Ramey King concedes that Appellants have satisfied the first three restricted-appeal elements, it argues that we should nevertheless refuse to consider the merits of their restricted appeal because they failed to “address the[] default judgment at the trial[-]court level” even though they “were aware of the judgment against them well within the timeline” that would have allowed them to do so by, for example, filing a motion for new trial. Ramey King attached to its brief an email from Appellants’ former counsel purportedly showing that Appellants were aware of the default judgment as early as December 31, 2024—just three weeks after it was signed.
3 134 S.W.3d at 848. In their sole issue, Appellants contend that the record contains
facial error because the returns of service are defective. We agree.
“For well over a century the rule has been firmly established in this state that a
default judgment cannot withstand direct attack by a defendant who complains that
he was not served in strict compliance with applicable requirements.” Wilson v. Dunn,
800 S.W.2d 833, 836 (Tex. 1990). The strict-compliance doctrine considers whether
the record shows that the exact procedural requirements are met, not whether the
intended party received notice of the lawsuit. Union Pac. Corp. v. Legg, 49 S.W.3d 72,
78 (Tex. App.—Austin 2001, no pet.). The return of service is not a trivial, formulaic
document; rather, it is prima facie evidence of proper service. See Primate Constr. Inc. v.
Silver, 884 S.W.2d 151, 152–53 (Tex. 1994). The party seeking service is responsible
for ensuring that proof of proper service is completed and reflected in the record. See
id. at 153. In a restricted appeal, “[t]here are no presumptions in favor of [the] valid
issuance, service, and return of citation.” Id. at 152.
But because this email is not part of the record and was not before the trial court when it rendered the default judgment, we cannot consider it. See In re D.D.J., 136 S.W.3d 305, 309 n.3 (Tex. App.—Fort Worth 2004, no pet.); see also Greystar, LLC v. Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no pet.) (“It is well- established an appellate court may not consider matters outside the record, which includes documents attached to a brief as an exhibit or an appendix that were not before the trial court.”). In any event, a restricted appeal is not an equitable proceeding. Tex. Dep’t of Pub. Safety v. J.W.M., No. 03-17-00792-CV, 2018 WL 6519696, at *2 (Tex. App.—Austin Dec. 12, 2018, no pet.) (mem. op.) (citing Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996)). Thus, Appellants are not required to show diligence in order to have their complaints heard by this court. See id.
4 Texas Rule of Civil Procedure 106(a)(1) requires that a defendant be served
with a copy of both the citation and the petition. Tex. R. Civ. P. 106(a)(1). Rule 107
reinforces this requirement by dictating that the return of service must include “a
description of what was served.” Tex. R. Civ. P. 107(b)(3).
Appellants complain that the returns of service filed in the trial court reflect
that the “[c]itation” was the only “[d]ocument” that was served; the returns do not
state that the petition was served with the citation. This is a valid complaint. Because
the returns of service do not state that the petition was served with the citation, they
are defective.2 See Avew Holding, Inc. v. Cnty. of Williamson, No. 01-18-00069-CV,
2019 WL 1119395, at *2 (Tex. App.—Houston [1st Dist.] Mar. 12, 2019, no pet.)
(mem. op.); Furst v. Smith, 176 S.W.3d 864, 871–72 (Tex. App.—Houston [1st Dist.]
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00201-CV ___________________________
BROOKFIELD FUNDING, LLC AND VISTA POINTE FUNDING, LLC, Appellants
V.
RAMEY & KING INSURANCE ASSOCIATES, INC., Appellee
On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2024-03979
Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
Appellants Brookfield Funding, LLC and Vista Pointe Funding, LLC bring this
restricted appeal from a no-answer default judgment entered in favor of Appellee
Ramey & King Insurance Associates, Inc. Appellants assert that the trial court erred
by granting Ramey King’s motion for default judgment because they were not
properly served with process. Because we agree that service was defective, we reverse
the trial court’s default judgment.
I. BACKGROUND
On November 15, 2024, Ramey King filed suit against Appellants, alleging
claims for breach of contract and suit on sworn account. Specifically, the petition
alleged that Ramey King had provided insurance-related services to Appellants and
had invoiced them for these services but that Appellants had failed to pay the
amounts due.
On November 15, 2024, citations were issued for both Appellants. The returns
of service were filed on November 25, 2024. The service returns’ descriptions of
what was served are limited to a single section labeled “Documents,” and both returns
list only the “[c]itation” in this section. Neither return references the petition, much
less states that it was served with the citation.
Appellants did not answer or otherwise appear. On December 10, 2024, the
trial court signed a default judgment awarding Ramey King $47,062 in damages plus
attorney’s fees and court costs. This restricted appeal followed.
2 II. SCOPE AND STANDARD OF REVIEW
To prevail in a restricted appeal, an appellant must establish that (1) it filed
notice of the restricted appeal within six months after the judgment was signed, (2) it
was a party to the underlying lawsuit, (3) it did not participate in the hearing that
resulted in the judgment complained of and did not timely file any postjudgment
motions or requests for findings of fact and conclusions of law, and (4) error is
apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see also Ex parte E.H., 602 S.W.3d
486, 497 (Tex. 2020) (confirming that, unlike the first three restricted-appeal
requirements, the error-on-the-face-of-the-record requirement is not jurisdictional).
For purposes of a restricted appeal, the face of the record consists of all the papers on
file in the appeal, including the clerk’s record and the reporter’s record. Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).
III. DISCUSSION
Here, it is undisputed that the first three restricted-appeal elements are satisfied;
the only question is whether there is error on the face of the record.1 See Alexander,
1 Although Ramey King concedes that Appellants have satisfied the first three restricted-appeal elements, it argues that we should nevertheless refuse to consider the merits of their restricted appeal because they failed to “address the[] default judgment at the trial[-]court level” even though they “were aware of the judgment against them well within the timeline” that would have allowed them to do so by, for example, filing a motion for new trial. Ramey King attached to its brief an email from Appellants’ former counsel purportedly showing that Appellants were aware of the default judgment as early as December 31, 2024—just three weeks after it was signed.
3 134 S.W.3d at 848. In their sole issue, Appellants contend that the record contains
facial error because the returns of service are defective. We agree.
“For well over a century the rule has been firmly established in this state that a
default judgment cannot withstand direct attack by a defendant who complains that
he was not served in strict compliance with applicable requirements.” Wilson v. Dunn,
800 S.W.2d 833, 836 (Tex. 1990). The strict-compliance doctrine considers whether
the record shows that the exact procedural requirements are met, not whether the
intended party received notice of the lawsuit. Union Pac. Corp. v. Legg, 49 S.W.3d 72,
78 (Tex. App.—Austin 2001, no pet.). The return of service is not a trivial, formulaic
document; rather, it is prima facie evidence of proper service. See Primate Constr. Inc. v.
Silver, 884 S.W.2d 151, 152–53 (Tex. 1994). The party seeking service is responsible
for ensuring that proof of proper service is completed and reflected in the record. See
id. at 153. In a restricted appeal, “[t]here are no presumptions in favor of [the] valid
issuance, service, and return of citation.” Id. at 152.
But because this email is not part of the record and was not before the trial court when it rendered the default judgment, we cannot consider it. See In re D.D.J., 136 S.W.3d 305, 309 n.3 (Tex. App.—Fort Worth 2004, no pet.); see also Greystar, LLC v. Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no pet.) (“It is well- established an appellate court may not consider matters outside the record, which includes documents attached to a brief as an exhibit or an appendix that were not before the trial court.”). In any event, a restricted appeal is not an equitable proceeding. Tex. Dep’t of Pub. Safety v. J.W.M., No. 03-17-00792-CV, 2018 WL 6519696, at *2 (Tex. App.—Austin Dec. 12, 2018, no pet.) (mem. op.) (citing Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996)). Thus, Appellants are not required to show diligence in order to have their complaints heard by this court. See id.
4 Texas Rule of Civil Procedure 106(a)(1) requires that a defendant be served
with a copy of both the citation and the petition. Tex. R. Civ. P. 106(a)(1). Rule 107
reinforces this requirement by dictating that the return of service must include “a
description of what was served.” Tex. R. Civ. P. 107(b)(3).
Appellants complain that the returns of service filed in the trial court reflect
that the “[c]itation” was the only “[d]ocument” that was served; the returns do not
state that the petition was served with the citation. This is a valid complaint. Because
the returns of service do not state that the petition was served with the citation, they
are defective.2 See Avew Holding, Inc. v. Cnty. of Williamson, No. 01-18-00069-CV,
2019 WL 1119395, at *2 (Tex. App.—Houston [1st Dist.] Mar. 12, 2019, no pet.)
(mem. op.); Furst v. Smith, 176 S.W.3d 864, 871–72 (Tex. App.—Houston [1st Dist.]
2005, no pet.); cf. Primate Constr., Inc., 884 S.W.2d at 152–53 (holding that service was
defective because citation recited that copy of second amended petition had been
2 Ramey King, citing to an email attached to its brief, claims that “[e]ven if [Appellants] were not served with the petition along with the citation, they already had the petition in their possession.” But as discussed above, we cannot consider documents that are not part of the record and that were not before the trial court when it rendered the default judgment. See Greystar, LLC, 426 S.W.3d at 865; D.D.J., 136 S.W.3d at 309 n.3. Thus, we cannot consider the email upon which Ramey King relies to show that Appellants received a copy of the petition. Further, the strict- compliance doctrine considers whether the record shows that the exact procedural requirements have been satisfied—not whether the intended party received notice of the lawsuit. Union Pac. Corp., 49 S.W.3d at 78. Thus, whether Ramey King previously transmitted the petition to Appellants’ counsel has no bearing on Appellants’ sole issue.
5 served but sworn return of service recited that original petition—which had not yet
named defendant—had actually been served).
Because this defect alone is sufficient to reverse the default judgment, we need
not—and therefore do not—address any other complaints that Appellants raise about
the returns of service. See Tex. R. App. P. 47.1; Avew Holding, Inc., 2019 WL 1119395,
at *2. We sustain Appellants’ sole issue.
IV. CONCLUSION
Having sustained Appellants’ sole issue and having determined that there is
error on the face of the record, we reverse the trial court’s default judgment and
remand this case to the trial court for further proceedings consistent with this
opinion.
/s/ Brian Walker
Brian Walker Justice
Delivered: December 11, 2025