Lucy Gutierrez v. Portfolio Recovery Associates, LLC
03-13-00311-CV
| Tex. App. | Jul 9, 2015Background
- Portfolio Recovery Associates obtained a default judgment against Lucy Gutierrez in a debt/breach-of-contract suit.
- Appellant challenges service of process based on an ambiguous time stamp on the return: "18:21 pm," which could be read as 6:21 p.m. (military) or an erroneous 8:21 p.m., while the service notation used standard time. Appellant argues this ambiguity defeats strict compliance with TEX. R. CIV. P. 16.
- Appellant contends appellee later filed a motion in the trial court to amend/clarify the affidavit (to treat "18:21 pm" as "6:21 pm"), which appellant characterizes as a judicial admission that the original time was ambiguous.
- Appellant argues the Original Petition failed to state a breach-of-contract claim or give fair notice because it did not identify the predecessor-in-interest or any material contract terms or supporting documentation.
- Appellant also asserts appellee lacked standing to sue (no proof of ownership of the debt), raising a fundamental error challenge to subject-matter jurisdiction. Appellant seeks an en banc rehearing reversing or vacating the default judgment and dismissal or remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service of process strict compliance (time-of-receipt on return) | The ambiguous "18:21 pm" fails strict compliance with Rule 16; return must show unambiguous date and hour. | The panel treated "18:21 pm" as 6:21 p.m. and found the return satisfied service requirements. | Panel held the ambiguous notation did not defeat strict compliance and did not require reversal. |
| Judicial admission (motion to amend affidavit) | Appellee's post-brief motion to "clarify" the time is a judicial admission that the original time was ambiguous, so service is invalid. | Appellee viewed the filing as a permissible clarification and the panel relied on record (or treated it as not dispositive). | Panel did not accept appellant's contention that the amendment constituted dispositive judicial admission warranting reversal. |
| Sufficiency of petition / fair notice (breach-of-contract) | Petition fails to allege a contract or material terms, fails to identify predecessor-in-interest, and lacks supporting documentation — so no cause of action or fair notice. | Panel found allegations that Gutierrez accepted credit from a predecessor and owes $4,448.61 were sufficient to give fair notice and state a breach claim. | Panel held the petition sufficiently pleaded a breach-of-contract claim for purposes of default judgment. |
| Standing / subject-matter jurisdiction (fundamental error) | Appellee did not allege or prove ownership/assignment; therefore it lacked standing and the court lacked subject-matter jurisdiction. | Panel did not treat standing as lacking on the record and resolved claims without dismissing for want of jurisdiction. | Appellant urges en banc review; panel did not find the record conclusively showed lack of jurisdiction. |
Key Cases Cited
- Insurance Co. of Pennsylvania v. Lejeune, 297 S.W.3d 254 (Tex. 2009) (strict compliance with citation rules requires clerk/officer endorsement showing day and hour of receipt).
- In re Z.J.W., 185 S.W.3d 905 (Tex. App.—Tyler 2006) (no pet.) (Texas Supreme Court historically requires strict compliance on service for default judgments to stand).
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (definition and effect of judicial admissions in pleadings).
- Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877 (Tex. App.—San Antonio 1996) (writ denied) (judicial admission discussion quoted in Horizon/CMS).
- T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992) (material contract terms required to enforce a loan contract).
- Bendalin v. Delgado, 406 S.W.2d 897 (Tex. 1966) (a court cannot enforce a contract it cannot determine).
- Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (standing/subject-matter jurisdiction may be raised for the first time on appeal).
- Ramsey v. Dunlop, 205 S.W.2d 979 (Tex. 1947) (definition of "fundamental error").
- McCauley v. Consolidated Underwriters, 304 S.W.2d 265 (Tex. 1957) (per curiam) (when the record affirmatively shows lack of jurisdiction, error is fundamental).
- Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (Tex. App.—Waco 2010) (plaintiff's bare assertion of authority to sue did not prove standing).
- Save Our Springs Alliance v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App.—Austin 2010) (plaintiff must allege facts affirmatively demonstrating the court's jurisdiction).