In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00350-CV ________________
RAMONA L. DEGRAW, Appellant
V.
NOEL BENNIE PAXTON JR., Appellee
________________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV23-0233 ________________________________________________________________________
MEMORANDUM OPINION
In this restricted appeal, Appellant Ramona L. Degraw (“Degraw”) challenges
the trial court’s Judgment on Trespass To Try Title (“default judgment”), arguing
Appellee Noel Bennie Paxton Jr. (“Paxton”) failed to comply with service and notice
of setting requirements. See Tex. R. App. P. 26.1(c). For the reasons explained
below, we reverse the trial court’s judgment and remand for a new trial.
1 BACKGROUND
Paxton filed an Original Petition on Trespass to Try Title, which states
Degraw could be served by certified mail return receipt requested at 870 Conestoga
Trail, Livingston, Texas 77351 (“the Livingston address”). Paxton’s attorney sent a
letter to the Polk County District Clerk’s Office requesting service via mail at the
Livingston address. The citation of personal service shows it was mailed to DeGraw
at the Livingston address. Paxton filed an Amended Original Petition on Trespass to
Try Title, which states Degraw could be served with process at her residence at 3714
Cypresswood Drive, Spring, Texas, 77388 (“the Spring address”). Paxton then filed
a Motion for Substitute Service of Process, in which he explained that a private
investigator was unable to contact Degraw and attached the investigator’s affidavit
stating the diligent efforts that were made to serve Degraw. The trial court granted
Paxton’s Motion for Substitute Service and authorized Paxton to serve Degraw by
leaving a copy of the citation, petition, and the Order on Motion for Substitute
Service with anyone over the age of sixteen at the Spring address or by firmly
affixing the documents to the front door.
Subsequently, Degraw filed an Original Answer. On August 10, 2023, the trial
court sent Degraw a Notice of Setting for September 18, 2023, to the Livingston
address. On September 15, 2023, Degraw filed a pro se Motion for Continuance of
the trial setting due to her mother’s recent death on September 12. On September 18,
2 the trial court called the case, the bailiff called Degraw’s name three times in the
hallway and, when Degraw failed to appear, the trial court denied her Motion for
Continuance, stating that parties usually show up to argue their motions, and
proceeded to hear Paxton’s testimony. The trial court signed a final judgment, which
awards Paxton title and possession of the subject property, lost rental income,
attorney’s fees, and court costs.
The following month, Degraw’s counsel filed a Notice of Appearance and a
Motion to Set Aside Judgment on Trespass to Try Title and Request for New Trial,
stating that on July 8, 2023, the undated citation of personal service was taped on
the door of the Spring address. Degraw also states that she filed an Original Answer
with her correct contact information and legal address in Spring, Texas. The record
shows the trial court’s August 10th Notice of Setting was sent to the Livingston
address instead of the address listed in her original answer. In her untimely motion
to set aside the judgment1, Degraw objected, among other things, to the trial court’s
judgment because the trial court’s Notice of Setting the trial failed to give the
required forty-five days’ notice. The trial court denied Degraw’s untimely Motion
to Set Aside Judgment and Request for New Trial. Degraw filed this restricted
appeal.
1 The deadline to file notice of appeal is within 30 days after the judgment is signed. Tex. R. App. Proc. 26(a). 3 ANALYSIS
In issue one, Degraw complains that the trial court erred in granting the
judgment because the partially completed Return of Service did not comply with
Rule 107 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 107(f). Degraw
argues that filing her Answer and Motion for Continuance does not show she waived
or acknowledged service. Degraw asks that this Court overturn the judgment and
grant her a new trial.
In issue two, Degraw complains that the Notice of Setting which set the matter
for trial was sent to the wrong address and failed to satisfy the forty-five-day notice
requirements under Rule 245 of the Texas Rules of Civil Procedure. According to
Degraw, she is entitled to a new trial because of the trial court’s failure to provide
adequate notice. The record shows she filed a Motion for Continuance shortly before
the trial date, but she argues she did not waive her objection to the trial court’s
improper notice. She also argues she raised this concern in her Motion to Set Aside
Judgment and Request for New Trial. We note that Appellant’s Motion to Set Aside
Judgment was untimely filed. Tex. R. App. Proc. 21.4(a).
To prevail on a restricted appeal, a party must prove that: (1) she filed her
restricted appeal within six months after the judgment was signed; (2) she was a
party to the underlying lawsuit; (3) she did not participate in the hearing that resulted
in the judgment complained of and did not timely file any post-judgment motions or
4 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; Ex parte E.H., 602 S.W.3d 486,
495 (Tex. 2020); Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
The requirement that error is apparent on the face of the record is not included in the
rule but derives from case law. Ex parte E.H., 602 S.W.3d at 495. The first three
restricted appeal requirements are jurisdictional, but the fourth is not. Id. at 496-97.
An appellant who meets the first three requirements establishing the court’s
jurisdiction must then establish error from the face of the record to prevail in a
restricted appeal. Id. at 497. Since Degraw meets the first three requirements, the
only question left which we must resolve is whether error is apparent on the face of
the record. See id.; Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007); Wachovia
Bank of Del. v. Gilliam, 215 S.W.3d 848, 849 (Tex. 2007). The “face of the record”
includes all the documents that were before the trial court when it rendered
judgment. See Alexander, 134 S.W.3d at 848-49.
Analysis
We turn first to issue two, in which Degraw complains that the Notice of
Setting was sent to the wrong address and failed to satisfy the forty-five-day notice
required under Rule 245 of the Texas Rules of Civil Procedure.
Degraw complains that the Notice of Hearing failed to comply with Rule 245,
which states the court may set contested cases with reasonable notice of not less than
5 forty-five days to the parties of a first setting for trial. See Tex. R. Civ. P. 245. The
face of the record shows the trial court sent a Notice of Setting for September 18,
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00350-CV ________________
RAMONA L. DEGRAW, Appellant
V.
NOEL BENNIE PAXTON JR., Appellee
________________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV23-0233 ________________________________________________________________________
MEMORANDUM OPINION
In this restricted appeal, Appellant Ramona L. Degraw (“Degraw”) challenges
the trial court’s Judgment on Trespass To Try Title (“default judgment”), arguing
Appellee Noel Bennie Paxton Jr. (“Paxton”) failed to comply with service and notice
of setting requirements. See Tex. R. App. P. 26.1(c). For the reasons explained
below, we reverse the trial court’s judgment and remand for a new trial.
1 BACKGROUND
Paxton filed an Original Petition on Trespass to Try Title, which states
Degraw could be served by certified mail return receipt requested at 870 Conestoga
Trail, Livingston, Texas 77351 (“the Livingston address”). Paxton’s attorney sent a
letter to the Polk County District Clerk’s Office requesting service via mail at the
Livingston address. The citation of personal service shows it was mailed to DeGraw
at the Livingston address. Paxton filed an Amended Original Petition on Trespass to
Try Title, which states Degraw could be served with process at her residence at 3714
Cypresswood Drive, Spring, Texas, 77388 (“the Spring address”). Paxton then filed
a Motion for Substitute Service of Process, in which he explained that a private
investigator was unable to contact Degraw and attached the investigator’s affidavit
stating the diligent efforts that were made to serve Degraw. The trial court granted
Paxton’s Motion for Substitute Service and authorized Paxton to serve Degraw by
leaving a copy of the citation, petition, and the Order on Motion for Substitute
Service with anyone over the age of sixteen at the Spring address or by firmly
affixing the documents to the front door.
Subsequently, Degraw filed an Original Answer. On August 10, 2023, the trial
court sent Degraw a Notice of Setting for September 18, 2023, to the Livingston
address. On September 15, 2023, Degraw filed a pro se Motion for Continuance of
the trial setting due to her mother’s recent death on September 12. On September 18,
2 the trial court called the case, the bailiff called Degraw’s name three times in the
hallway and, when Degraw failed to appear, the trial court denied her Motion for
Continuance, stating that parties usually show up to argue their motions, and
proceeded to hear Paxton’s testimony. The trial court signed a final judgment, which
awards Paxton title and possession of the subject property, lost rental income,
attorney’s fees, and court costs.
The following month, Degraw’s counsel filed a Notice of Appearance and a
Motion to Set Aside Judgment on Trespass to Try Title and Request for New Trial,
stating that on July 8, 2023, the undated citation of personal service was taped on
the door of the Spring address. Degraw also states that she filed an Original Answer
with her correct contact information and legal address in Spring, Texas. The record
shows the trial court’s August 10th Notice of Setting was sent to the Livingston
address instead of the address listed in her original answer. In her untimely motion
to set aside the judgment1, Degraw objected, among other things, to the trial court’s
judgment because the trial court’s Notice of Setting the trial failed to give the
required forty-five days’ notice. The trial court denied Degraw’s untimely Motion
to Set Aside Judgment and Request for New Trial. Degraw filed this restricted
appeal.
1 The deadline to file notice of appeal is within 30 days after the judgment is signed. Tex. R. App. Proc. 26(a). 3 ANALYSIS
In issue one, Degraw complains that the trial court erred in granting the
judgment because the partially completed Return of Service did not comply with
Rule 107 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 107(f). Degraw
argues that filing her Answer and Motion for Continuance does not show she waived
or acknowledged service. Degraw asks that this Court overturn the judgment and
grant her a new trial.
In issue two, Degraw complains that the Notice of Setting which set the matter
for trial was sent to the wrong address and failed to satisfy the forty-five-day notice
requirements under Rule 245 of the Texas Rules of Civil Procedure. According to
Degraw, she is entitled to a new trial because of the trial court’s failure to provide
adequate notice. The record shows she filed a Motion for Continuance shortly before
the trial date, but she argues she did not waive her objection to the trial court’s
improper notice. She also argues she raised this concern in her Motion to Set Aside
Judgment and Request for New Trial. We note that Appellant’s Motion to Set Aside
Judgment was untimely filed. Tex. R. App. Proc. 21.4(a).
To prevail on a restricted appeal, a party must prove that: (1) she filed her
restricted appeal within six months after the judgment was signed; (2) she was a
party to the underlying lawsuit; (3) she did not participate in the hearing that resulted
in the judgment complained of and did not timely file any post-judgment motions or
4 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; Ex parte E.H., 602 S.W.3d 486,
495 (Tex. 2020); Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
The requirement that error is apparent on the face of the record is not included in the
rule but derives from case law. Ex parte E.H., 602 S.W.3d at 495. The first three
restricted appeal requirements are jurisdictional, but the fourth is not. Id. at 496-97.
An appellant who meets the first three requirements establishing the court’s
jurisdiction must then establish error from the face of the record to prevail in a
restricted appeal. Id. at 497. Since Degraw meets the first three requirements, the
only question left which we must resolve is whether error is apparent on the face of
the record. See id.; Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007); Wachovia
Bank of Del. v. Gilliam, 215 S.W.3d 848, 849 (Tex. 2007). The “face of the record”
includes all the documents that were before the trial court when it rendered
judgment. See Alexander, 134 S.W.3d at 848-49.
Analysis
We turn first to issue two, in which Degraw complains that the Notice of
Setting was sent to the wrong address and failed to satisfy the forty-five-day notice
required under Rule 245 of the Texas Rules of Civil Procedure.
Degraw complains that the Notice of Hearing failed to comply with Rule 245,
which states the court may set contested cases with reasonable notice of not less than
5 forty-five days to the parties of a first setting for trial. See Tex. R. Civ. P. 245. The
face of the record shows the trial court sent a Notice of Setting for September 18,
2023, on August 10, 2023, and that the Notice was addressed and sent to DeGraw’s
old address. On its face, the Notice when mailed would have provided less than the
required forty-five days’ notice. See id. “If a timely answer has been filed in a
contested case or the defendant has otherwise made an appearance, due process
rights are violated when a judgment is subsequently entered without the party
receiving notice of the setting of the case[.]” In re K.M.L., 443 S.W.3d 101, 118-19
(Tex. 2014). “A trial court’s failure to comply with the notice requirements in a
contested case deprives a party of his constitutional right to be present at the hearing
and to voice [her] objections in an appropriate manner, resulting in a violation of
fundamental due process.” Id. at 119 (citations omitted); see also Custom-Crete, Inc.
v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio 2002, no pet.).
Thus, Paxton could not take a post-answer judgment against Degraw on less than
forty-five days’ notice of the final hearing. See Ray v. Tottenham, No. 01-22-00695-
CV, 2023 WL 4872978, at *3 (Tex. App.—Houston [1st Dist.] Aug. 1, 2023, no
pet.) (mem. op.).
Since Degraw filed an answer asserting a general denial and attached her
affidavit contesting the matters that Paxton raised in his petition, she had a
constitutional due process right to receive adequate notice of the trial. See id. Here,
6 the face of the record affirmatively demonstrates that Degraw did not receive the
forty-five days’ notice required by Rule 245. See Tex. R. Civ. P. 245. Therefore, we
conclude the trial court’s judgment is ineffectual for lack of proper notice. See Bell
Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140 (Tex. App.—Texarkana
1993, writ denied) (“The rule [Rule 245] is mandatory.”). We sustain issue two.
Having determined that the trial notice was inadequate, we need not address
Degraw’s other argument as it would not result in any greater relief. See Tex. R.
App. P. 47.1. Because Degraw has established her right to a new trial by
demonstrating she received inadequate notice of the trial setting, we reverse the trial
court’s judgment and remand for a new trial. See Rouhana v. Ramirez, 556 S.W.3d
472, 482 (Tex. App.—El Paso 2018, no pet.) (reversing and remanding for trial on
merits for trial court’s failure to comply with Rule 245).
REVERSED AND REMANDED.
JAY WRIGHT Justice
Submitted on July 1, 2025 Opinion Delivered July 24, 2025
Before Johnson, Wright and Chambers, JJ.