ACCEPTED 03-13-00311-CV 5311654 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/15/2015 6:08:58 PM JEFFREY D. KYLE CLERK NO. 03-13-00311-CV
LUCY GUTIERREZ § COURT OFINAPPEALS FILED 3rd COURT OF APPEALS § AUSTIN, TEXAS § 5/15/2015 6:08:58 PM vs. § JEFFREY D. KYLE § Clerk
PORTFOLIO RECOVERY § ASSOCIATES § THIRD DISTRICT OF TEXAS
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF SAID COURT:
Appellant, LUCY GUTIERREZ, submits this her Motion for
Rehearing, and in support thereof shows:
General
1. This Motion addresses the issues as stated in the Court’s February 26,
2015, opinion, plus an additional issue of fundamental error. In an attempt
to maintain brevity, APPELLANT’S BRIEF and APPELLANT’S REPLY
BRIEF are incorporated herein as if restated in full.
Service of Citation
2. The appellate panel ruled that the “ambiguous time standard” (capable
of interpretation as two different times) which the process server stated in
his Affidavit of Service as the time he received the Citation was in strict
compliance with the Texas Rules of Civil Procedure. The panel, in it’s
opinion, does not discuss, nor even mention, that the reason appellant raised
1 this issue was because the process server did not use this same “ambiguous
time standard” in his statement as to the time that the citation was served. It
is this conflict in the use by the process server of two different forms to
stating the time that created the “ambiguous time standard.” The Court’s
opinion states that this “ambiguous time standard” does not affect strict
compliance with service of process. This conclusion by this Court is
contrary to the rulings of other courts of appeal and the Texas Supreme
Court, which state that the return must specifically state both the date and
time that the process server received the citation.
3. TEX. R. CIV. P. 16 states: “Every officer or authorized person shall
endorse on all process and precepts coming to his hand the day and hour on
which he received them….” (emphasis added.) In Insurance Co. of
Pennsylvania v. Lejeune, 297 S.W. 3d 254, 255-56 (Tex. 2009), default
judgment was reversed when the clerk’s endorsement on citation did not
show the hour of receipt. In this case, the time “18:21 pm” could be military
time for 6:21 p.m. or the “1” could be a typographical error and the time
could be 8:21 p.m. The latter is a possibility because the process server used
standard time for the time of service. Therefore, there are two possible times
that the Citation could have been received by the process server.
2 4. This Court ruled in the opinion that the time “18:21 pm” was in fact
“6:21 pm.” But how the Court can conclude this without speculating,
inferring, or even considering extrinsic matter not “on the face of the record”
was not explained in the opinion. The fact is still, nonetheless, a time of
receipt stated in the citation that is capable of more than one meaning. The
Court’s opinion effectively accepts substantial compliance as strict
compliance. “…[F]or well over a century, the Texas Supreme Court has
required that strict compliance with the rules of service of citation
affirmatively appear on the record in order for a default judgment to with-
stand direct attack.” In re Z.J.W., 185 S.W. 3d 905, 907-08 (Tex. App. –
Tyler 2006, no pet.).
5. The Court should rule that the Citation did not properly state the hour
of receipt and was therefore not in strict compliance with the rules of service
of citation.
Judicial Admission
6. While the case cited by the Court in it’s opinion does provide the
general definition of a judicial admission, it does so within a context that is
very different from that in this case. The filing that appellant asserts was a
judicial admission was: (1) done in the case below (in the trial court) while
the case was on appeal; (2) the pleading to amend the affidavit of service
3 specifically stated that it’s purpose was to “clarify” that “18:21 pm” is “6:21
pm;” (3) the pleading in question was filed after appellant filed her brief
pointing out the ambiguous time; and (4) appellee (though incorrectly)
believed that the trial court retained plenary power to grant this motion to
amend. This particular type of motion, within the context of an appeal, is a
deliberate, clear and unequivocal admission that appellee believed the time
was ambiguous. In this manner, appellee could “eliminate” appellant’s point
of error concerning the affidavit of service.
7. “A judicial admission ‘occurs when an assertion of fact is
conclusively established in live pleadings, making the introduction of other
pleadings or evidence unnecessary.’” Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W. 3d 887, 905 (Tex. 2000) (quoting Chilton Ins. Co. v. Pate &
Pate Enters., Inc., 930 S.W. 2d 877, 844 (Tex. App. – San Antonio 1996,
writ denied)).
8. The Court should rule that appellee judicial admitted that the time of
receipt of the Citation was ambiguous and therefore service is invalid.
Sufficiency of the Pleadings
9. Thia Court ruled that the Original Petition in this cause stated a cause
of action for breach of contract. The opinion states the elements for such a
cause of action but wholly fails to take into consideration the most important
4 of the four elements. Namely, the first which in the language of the panel is
that “plaintiff must show that a contract existed between the parties.” The
opinion states as follows: “Portfolio’s petition alleges that Gutierrez entered
into an agreement with Portfolio’s predecessor in interest whereby Gutierrez
accepted an extension of credit and became bound to repay the debt. The
petition further alleges that Gutierrez breached her duty to make the required
payments and that Gutierrez owes Portfolio a balance of $4,448.61. These
allegations are sufficient to allow Gutierrez to “ascertain the nature and the
basic issues” of Portfolio’s breach-of-contract claim.”
10. Implicit in the Court’s statement is that a contract between Portfolio
and Gutierrez never existed. This statement is actually explicit in Plaintiff’s
Original Petition. Petitioner states: “Defendant received an extension of
credit from Plaintiff’s predecessor in interest. Plaintiff is now the owner of
that indebtedness, as support by the attached documentation. Defendant
accepted the credit and became bound to repay Plaintiff, with interest.” The
predecessor in interest is never identified, and there was no attached
documentation. The only other information regarding the alleged contract is
an account number and which is never identified as to whose account it was
(“predecessor in interest”), and an allegation that after acceleration, the
amount due on the account was $4,448.61. The description contains no
material terms of the contract. “In a contract to loan money, the material
5 terms will generally be: the amount to be loaned, maturity date of the loan,
the interest rate, and the repayment terms. T. O. Stanley Boot Co., Inc., v. Bank of El Paso, 847 S.W. 2d 218, 221 (Tex. 1992).
11. “A court cannot enforce a contract unless it can determine what it is.”
Bendalin v. Delgado, 406 S.W. 2d 897, 899 (Tex. 1966). In this cause, there was no description of any of the terms of the contract, whether they be
material or not.
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ACCEPTED 03-13-00311-CV 5311654 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/15/2015 6:08:58 PM JEFFREY D. KYLE CLERK NO. 03-13-00311-CV
LUCY GUTIERREZ § COURT OFINAPPEALS FILED 3rd COURT OF APPEALS § AUSTIN, TEXAS § 5/15/2015 6:08:58 PM vs. § JEFFREY D. KYLE § Clerk
PORTFOLIO RECOVERY § ASSOCIATES § THIRD DISTRICT OF TEXAS
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF SAID COURT:
Appellant, LUCY GUTIERREZ, submits this her Motion for
Rehearing, and in support thereof shows:
General
1. This Motion addresses the issues as stated in the Court’s February 26,
2015, opinion, plus an additional issue of fundamental error. In an attempt
to maintain brevity, APPELLANT’S BRIEF and APPELLANT’S REPLY
BRIEF are incorporated herein as if restated in full.
Service of Citation
2. The appellate panel ruled that the “ambiguous time standard” (capable
of interpretation as two different times) which the process server stated in
his Affidavit of Service as the time he received the Citation was in strict
compliance with the Texas Rules of Civil Procedure. The panel, in it’s
opinion, does not discuss, nor even mention, that the reason appellant raised
1 this issue was because the process server did not use this same “ambiguous
time standard” in his statement as to the time that the citation was served. It
is this conflict in the use by the process server of two different forms to
stating the time that created the “ambiguous time standard.” The Court’s
opinion states that this “ambiguous time standard” does not affect strict
compliance with service of process. This conclusion by this Court is
contrary to the rulings of other courts of appeal and the Texas Supreme
Court, which state that the return must specifically state both the date and
time that the process server received the citation.
3. TEX. R. CIV. P. 16 states: “Every officer or authorized person shall
endorse on all process and precepts coming to his hand the day and hour on
which he received them….” (emphasis added.) In Insurance Co. of
Pennsylvania v. Lejeune, 297 S.W. 3d 254, 255-56 (Tex. 2009), default
judgment was reversed when the clerk’s endorsement on citation did not
show the hour of receipt. In this case, the time “18:21 pm” could be military
time for 6:21 p.m. or the “1” could be a typographical error and the time
could be 8:21 p.m. The latter is a possibility because the process server used
standard time for the time of service. Therefore, there are two possible times
that the Citation could have been received by the process server.
2 4. This Court ruled in the opinion that the time “18:21 pm” was in fact
“6:21 pm.” But how the Court can conclude this without speculating,
inferring, or even considering extrinsic matter not “on the face of the record”
was not explained in the opinion. The fact is still, nonetheless, a time of
receipt stated in the citation that is capable of more than one meaning. The
Court’s opinion effectively accepts substantial compliance as strict
compliance. “…[F]or well over a century, the Texas Supreme Court has
required that strict compliance with the rules of service of citation
affirmatively appear on the record in order for a default judgment to with-
stand direct attack.” In re Z.J.W., 185 S.W. 3d 905, 907-08 (Tex. App. –
Tyler 2006, no pet.).
5. The Court should rule that the Citation did not properly state the hour
of receipt and was therefore not in strict compliance with the rules of service
of citation.
Judicial Admission
6. While the case cited by the Court in it’s opinion does provide the
general definition of a judicial admission, it does so within a context that is
very different from that in this case. The filing that appellant asserts was a
judicial admission was: (1) done in the case below (in the trial court) while
the case was on appeal; (2) the pleading to amend the affidavit of service
3 specifically stated that it’s purpose was to “clarify” that “18:21 pm” is “6:21
pm;” (3) the pleading in question was filed after appellant filed her brief
pointing out the ambiguous time; and (4) appellee (though incorrectly)
believed that the trial court retained plenary power to grant this motion to
amend. This particular type of motion, within the context of an appeal, is a
deliberate, clear and unequivocal admission that appellee believed the time
was ambiguous. In this manner, appellee could “eliminate” appellant’s point
of error concerning the affidavit of service.
7. “A judicial admission ‘occurs when an assertion of fact is
conclusively established in live pleadings, making the introduction of other
pleadings or evidence unnecessary.’” Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W. 3d 887, 905 (Tex. 2000) (quoting Chilton Ins. Co. v. Pate &
Pate Enters., Inc., 930 S.W. 2d 877, 844 (Tex. App. – San Antonio 1996,
writ denied)).
8. The Court should rule that appellee judicial admitted that the time of
receipt of the Citation was ambiguous and therefore service is invalid.
Sufficiency of the Pleadings
9. Thia Court ruled that the Original Petition in this cause stated a cause
of action for breach of contract. The opinion states the elements for such a
cause of action but wholly fails to take into consideration the most important
4 of the four elements. Namely, the first which in the language of the panel is
that “plaintiff must show that a contract existed between the parties.” The
opinion states as follows: “Portfolio’s petition alleges that Gutierrez entered
into an agreement with Portfolio’s predecessor in interest whereby Gutierrez
accepted an extension of credit and became bound to repay the debt. The
petition further alleges that Gutierrez breached her duty to make the required
payments and that Gutierrez owes Portfolio a balance of $4,448.61. These
allegations are sufficient to allow Gutierrez to “ascertain the nature and the
basic issues” of Portfolio’s breach-of-contract claim.”
10. Implicit in the Court’s statement is that a contract between Portfolio
and Gutierrez never existed. This statement is actually explicit in Plaintiff’s
Original Petition. Petitioner states: “Defendant received an extension of
credit from Plaintiff’s predecessor in interest. Plaintiff is now the owner of
that indebtedness, as support by the attached documentation. Defendant
accepted the credit and became bound to repay Plaintiff, with interest.” The
predecessor in interest is never identified, and there was no attached
documentation. The only other information regarding the alleged contract is
an account number and which is never identified as to whose account it was
(“predecessor in interest”), and an allegation that after acceleration, the
amount due on the account was $4,448.61. The description contains no
material terms of the contract. “In a contract to loan money, the material
5 terms will generally be: the amount to be loaned, maturity date of the loan,
the interest rate, and the repayment terms. T. O. Stanley Boot Co., Inc., v. Bank of El Paso, 847 S.W. 2d 218, 221 (Tex. 1992).
11. “A court cannot enforce a contract unless it can determine what it is.”
Bendalin v. Delgado, 406 S.W. 2d 897, 899 (Tex. 1966). In this cause, there was no description of any of the terms of the contract, whether they be
material or not. Plaintiff’s Original Petition fails to state a cause of action
and fails to give fair notice of what the claim is. 12. This Court’s ruling essentially declares the following: A default
judgment based on a suit for debt filed by a person that was not a party to
the alleged contract who claims to own the alleged contract where the other party is identified merely as “predecessor in interest,” with absolutely no
proof of plaintiff’s ownership interest other than the conclusory words
“predecessor in interest,” and with absolutely no information regarding the alleged contract, namely, the amount of the debt that was incurred, the
purpose of the debt, the maturity date, the terms of payment, the interest rate,
etc., states a cause of action for breach of contract, and furthermore, gives fair notice to defendant of the claim involved.
13. This court should find that Plaintiff’s Original Petition failed to state a
cause of action and failed to give fair notice of the claim to the defendant. Issue 4: Fundamental Error – Appellee, as a matter of law, has no standing in this cause
14. Pursuant to the rule stated in Texas Ass’n of Business v. Texas Air
Control Bd., 852 S.W. 2d 440, 445 (Tex. 1993) that subject matter
6 jurisdiction, namely, standing, may be raised for the first time on appeal by
the parties or by the court and may not be waived, appellant alleges that appellee has no standing in this cause. This new issue is one of fundamental
error which involves the violation of several constitutional doctrines: the
separation of powers, the limitation of judicial power to “cases” and “controversies,” and TEX. CONST. art 1, sec. 13 relating to open courts. Id.
at 444.
15. “The general test for standing in Texas requires that there ‘(a) shall be a real controversy between the parties, which (b) will be actually determined
by the judicial declaration sought.’” Id. at 445. In this case, the only
evidence provided in the Plaintiff’s Original Petition were the statements: “Plaintiff’s predecessor in interest,” and “Plaintiff is now the owner of that
indebtedness, as supported by the attached documentation.” There was no
attached documentation and the predecessor in interest was never identified. 16. In Shipley v. Unifund CCR Partners, 331 S.W. 3d 27 (Ct. App. –
Waco 2010, no pet.), a suit for debt, the plaintiff’s original petition’s sole
reference to ownership or standing to litigate was the statement: “Plaintiff is authorized to file this petition.” The court ruled that this did not constitute
“any evidence of standing.” Id., at 29. “The plaintiff must allege facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause.” Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W. 3d 871,
878 (Tex. App. – Austin 2010, no pet.).
7 17. Appellee had no standing to bring this suit, and, therefore, the trial
court did not have subject matter jurisdiction over this cause. The judgment should be reversed, vacated and set aside and this cause should be dismissed.
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, appellant requests that
this Court withdraw the opinion issued on February 26, 2015, and issue a
new opinion finding that the trial court erred in granting judgment because
(1) the citation was not in strict compliance with the Texas Rules of Civil
Procedure as construed by the Texas Supreme Court, and therefore cannot
sustain a default judgment; (2) the petition failed to state a cause of action;
and/or (3) the petition failed to give fair notice of the claim involved in that
it did not state the predecessor in interest, the amount of credit extended, the
purpose of the credit extension, the terms of the contract for repayment of
the credit extension, nor the manner in which the alleged contract was
breached. Appellant further requests upon finding any of the above errors that this Honorable Court reverse, vacate and set aside the trial court’s
judgment and remand this cause for a new trial.
In addition, appellant requests that this Court find that appellant’s
additional issue presented in this Motion, namely, that the trial court erred in
granting judgment because of fundamental error, namely, that appellee had
no standing in this cause and therefore the trial court had no subject matter jurisdiction, is properly before this Court, and appellant further requests that
8 this Honorable Court reverse, vacate and set aside the trial court’s judgment
and dismiss this suit. Dated this 12th day of May, 2015.
Respectfully submitted,
RONALD S. GUTIERREZ, LAWYER Las Colinas Station P. O. Box 143243 Irving Texas 75014-3243 Office: (512) 222-3488 Facsimile: (512) 233-2786 Email: rsg.lawyer@gmail.com
By: /s/ Ronald S. Gutierrez Ronald S. Gutierrez State Bar No. 08644410
ATTORNEY FOR APPELLANT
Certificate of Compliance
I hereby certify that the foregoing instrument is 1,874 words in length,
including and excluding those matters provided in TEX. R. APP. P.
9.4(i)(2)(D) and 9.4(i)(3).
/s/ Ronald S. Gutierrez Ronald S. Gutierrez
9 Certificate of Service
I hereby certify that a true and correct copy of the foregoing instrument was delivered via eServe, and/or via email at
aregent@regentlawlcom, and/or via facsimile at (713) 490-7075, to Mr. Anh
H. Regent, REGENT & ASSOCIATES, 2650 Fountain View, Suite 233, Houston, Texas 77057, Attorney for Plaintiff on May 12, 2015.
/s/ Ronald S. Gutierrez Ronald S. Gutierrez