Diaz v. Multi Service Technology Solutions
Corp.
Dallas Court of Appeals, No. 05-14-00032-CV (November 6,
2014)
Justices FitzGerald, Fillmore (Opinion), and Stoddart
Justices FitzGerald, Fillmore (Opinion), and Stoddart
To overturn a default judgment via restricted appeal, the appellant must show error “on the face of the record.” The appellant, Pedro Diaz, offered evidence he could not have been the person allegedly served with process, but that evidence was filed after judgment was entered and, therefore, did not appear “on the face of the record.” Consequently, the Dallas Court of Appeals refused to overturn the default judgment against Diaz, holding that “[e]vidence not before the trial court prior to final judgment is beyond the scope of review in a restricted appeal and may not be considered.” Diaz was able to secure reversal of the damages award, however, due to an inconsistency in the name of the plaintiff. The suit was filed in the name of Multi Service Technology Solutions Corporation, a Missouri corporation (“MSTSC”), but judgment was entered in favor of Multi Service Technology Solutions, Inc., a Florida corporation (“MSTSI”). Moreover, the affidavit proving up the plaintiff’s alleged damages relied on an agreement between Diaz and Multi Service Corporation (“MSC”) and detailed the amounts allegedly due from Diaz under that agreement. The Court held there was no evidence in the record of any relationship between MSTSC, MSTSI, and MSC, and therefore there was no evidence of any amount owed by Diaz to the plaintiff MSTSC. The Court reversed the damages award and remanded for a new trial on damages.
