Texas Case Law

WESTBROOK v. WESTBROOK, 09-06-335 CV (Tex.App. [9th Dist.] 1-11-2007) MALCOLM WESTBROOK, JERROLD D. WEST BROOK, CAROL ANN WESTBROOK CURTIS, DONALD RAY WESTBROOK, CONNIE SUE WESTBROOK, WANDA WESTBROOK PRUITT, VIRGILE STIGFIELD, JULIE HADNOT, SHAWN HADNOT AND DORIAN HADNOT, Appellants v. ERNEST WESTBROOK, Appellee. No. 09-06-335 CV Court of Appeals of Texas, Ninth District, Beaumont. Submitted on October 19, 2006. Opinion Delivered: January 11, 2007.

On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 26673.




This is an appeal from a default judgment entered in favor
of Ernest Westbrook.[fn1] Appellants argue they were not
served with citation. We agree. We reverse the default
judgment and remand the cause to the trial court for
further proceedings.

Ernest Westbrook owns an undivided interest in certain real
property located in Jasper County, Texas. On July 20, 2005,
he filed a forced sale of property suit against the heirs
of David Crockett, whom he alleged owned undivided
interests in the same property. See Tex. Prop. Code Ann.
§ 29.002 (Vernon Supp. 2006). Ernest filed a petition
to remove cloud from and to quiet title to real property,
and sought a declaratory judgment that he owned the land by
adverse possession. The only named defendant was Malcolm
Westbrook. The sufficiency of the citation served on
Malcolm is not at issue in this appeal.[fn2] With the
petition, Ernest also filed a copy of a notice to the heirs
of David Crockett published in March and April 2005 in The
Jasper Newsboy in an attempt to comply with section 29.0035
of the Property Code. See Tex. Prop. Code Ann. §
29.0035 (Vernon Supp. 2006). In a forced sale suit brought
against unknown defendants, a petitioner must publish a
demand for reimbursement of ad valorem taxes prior to filing
the petition. See id. In the publication, Ernest claimed to
have paid the ad valorem taxes on the property for over
five years; he requested that any heirs claiming an
undivided interest in the property come forward to prove
their heirship; and he sought reimbursement for the taxes he
paid on the unknown defendants’ undivided interests.

Shortly after the petition was filed, the trial court held
a default judgment hearing and signed a judgment in favor
of Ernest Westbrook. The judgment declared that Ernest
obtained title to the property by adverse possession. The
court ordered all defendants in the action to execute any
documents necessary to clear the cloud on the title of the
property and enjoined them from interfering with Ernest’s
title, use, and possession of the property.

Malcolm filed an answer to the petition before the default
judgment was signed. The trial court entered an order that
vacated the default judgment as to Malcolm. Approximately
seven months after the default judgment, appellants filed a
motion to set aside the judgment entirely. They claimed
they had not been served with citation. The trial court
denied appellants’ motion.

The trial court severed Ernest’s causes of action against
Malcolm from the causes of action against the unknown heirs
of David Crockett. The appellate timetable began to run
when the severance was entered. See Farmer v. Ben E. Keith
Co., 907 S.W.2d 495, 496 (Tex. 1995). Although appellants
filed the notice of appeal prematurely, we treat the notice
as filed on the day the severance order was signed. See Tex.
R. App. P. 27.1(a). Accordingly, appellants have properly
perfected appeal by filing their notice within thirty days
after a final judgment was signed. See Tex. R. App. P.

Service of citation must strictly comply with the Rules of
Civil Procedure to support a default judgment. Wilson v.
Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club
v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.
1985). A citation and valid return must appear among the
papers in the record. Webb v. Oberkampf Supply of Lubbock,
Inc., 831 S.W.2d 61, 64 (Tex.App.-Amarillo 1992, no writ).
If strict compliance is not shown, the service of process
is invalid and of no effect. Uvalde Country Club, 690
S.W.2d at 885. We make no presumptions of valid issuance,
service, or return of citation when examining a default
judgment. Id.

Service of citation by publication in actions against
unknown owners of interests in land must comply with
certain requirements provided in the Texas Rules of Civil
Procedure. A plaintiff must file with the clerk of court an
affidavit stating “the name of the grantee as set out in
the conveyance constituting source of title of defendants,”
and that plaintiff does not know the names of any persons
claiming title or interest under the conveyance other than
as stated in plaintiff’s petition. Tex. R. Civ. P. 113. The
citation shall contain the names of the parties, a brief
statement of the nature of the suit, a description of any
property involved and of the interest of the named or
unknown defendant or defendants, and where the suit
involves land, the requisites of Rule 115. Tex. R. Civ. P.
114, see also Tex. R. Civ. P. 115. The citation shall
briefly state the claim by stating the kind of suit, the
number of acres of land involved in the suit, or the number
of the lot and block, “or any other plat description that
may be of record if the land is situated in a city or town,
the survey on which and the county in which the land is
situated, and any special pleas which are relied upon in
such suit.” Tex. R. Civ. P. 115. When issued, the citation
shall be served by the sheriff or any constable of any
county or by the clerk of court in which the case is
pending by having the citation published in a newspaper in
the county where the land is located once each week for
four consecutive weeks. Tex. R. Civ. P. 116. The first
publication must be at least twenty-eight days before the
return day of the citation. Id. “The return of the officer
executing such citation shall be indorsed or attached to
the same, and show how and when the citation was executed,
specifying the dates of such publication, be signed by him
officially and shall be accompanied by a printed copy of
such publication.” Tex. R. Civ. P. 117.

In this case, there is no indication in the record of any
service by publication or otherwise on the appellants other
than Malcolm Westbrook. Ernest did not file with the clerk
of court an affidavit complying with Rule 113. See Tex. R.
Civ. P. 113. The demand notice included with the original
petition does not refer to the lawsuit because no pleading
had been filed at the time of that publication. Section
29.0035 of the Property Code requires that the final demand
notice by publication occur “not later than the 30th day
before the date on which the petition is filed.” Tex. Prop.
Code Ann. § 29.0035. Publication of the demand
notice to unknown defendants required by section 29.0035 is
a requirement that must be met before the petition is
filed. See id. §§ 29.003(2), 29.0035.

There is nothing in the record to indicate that service of
citation was made on any of the appellants other than
Malcolm. Therefore, the default judgment is not supported
by service of process. See Mapco, Inc. v. Carter, 817
S.W.2d 686, 687 (Tex. 1991) (“In no case shall judgment be
rendered against any defendant unless upon service, or
acceptance or waiver of process, or upon an appearance.”).

Ernest argues that the notice of appeal was not timely
filed because it was filed approximately one year after the
default judgment was signed. He contends that because the
trial court set aside the default judgment only as to
Malcolm, the case against Malcolm was essentially severed
from the suit against the remaining defendants.
Accordingly, Ernest argues, the default judgment was final
when originally entered. By vacating the default judgment
in part, however, the trial court made the remainder of the
default judgment interlocutory because it does not dispose
of all claims and parties before the court. See Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). Ernest
contends compliance with the Property Code’s demand
requirement should be considered sufficient service of
citation by publication because he used the word
“defendant” in the published demand. Publication of the
pre-suit demand for reimbursement of ad valorem taxes
pursuant to the Property Code is not service of process in
a subsequent lawsuit. Ernest argues that even if the trial
court made a “procedural error,” such error was harmless
because the judgment granted him what he would be entitled
to “if the Appellants had presented their case in its
entirety.” Due process requires appellants be given notice
of the pendency of the action filed against them and the
opportunity to present their objections. See Peralta v.
Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 99
L.Ed.2d 75 (1988). The lack of service of process is not
harmless error. Ernest also argues appellants “lack standing
to bring this appeal because they were never proper parties
before the trial court.” Ernest argues, “Appellants have
proferred no evidence to illustrate heirship or that they
own an interest in the property in question.” Appellants
were not made parties by service of process before a
default judgment was entered against them. Whether they will
be successful on the merits is not the issue in this
appeal. Rather, the issue is appellants’ entitlement to
notice and an opportunity to be heard before judgment is
entered against them. See id. Finally, appellee cites
appellants’ lack of compliance with Tex. R. Civ. P. 329,
and argues appellants have failed to perfect appeal. Rule
329 is not applicable. The default judgment had not become
final when appellants filed their appearance and motion.
Furthermore, service of process by publication was never
attempted in this case. See Wiebusch v. Wiebusch, 636
S.W.2d 540, 542 (Tex.App.-San Antonio 1982, no writ)
(stating Rule 329 applies only when there has been a valid
citation by publication).

Appellants’ issue is sustained. We reverse the trial
court’s judgment and remand this cause for further


[fn1] Appellants are Jerrold D. Westbrook, Carol Ann
Westbrook Curtis, Donald Ray Westbrook, Connie Sue
Westbrook, Wanda Westbrook Pruitt, Virgil Strigfield, Julie
Hadnot, Shawn Hadnot, and Dorian Hadnot. Virgile
Stigfield’s name is spelled differently in the Notice of
Appeal and Answer.

[fn2] Malcolm Westbrook is named in the Notice of Appeal. No
issue is raised in the brief concerning service on Malcolm.
He timely filed an answer before the default judgment was