law-default-judgment-defective-service-of-process | default judgment caselaw |
DEFECTIVE SERVICE - DEFAULT JUDGMENT
A default judgment cannot withstand direct attack by a defendant who complains he was not served in strict
compliance with applicable requirements. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Reed Elsevier,
Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180 S.W.3d 903, 905 (Tex. App.-Dallas 2005, pet.
denied). In a restricted appeal, defective service of process constitutes error apparent on the face of the
record requiring reversal. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (per curiam).
Further, there are no presumptions in favor of valid issuance, service, and return of citation. Reed Elsevier,
Inc., 180 S.W.3d at 905; see also Primate Constr., Inc., 884 S.W.2d at 152. Lack of compliance with the Texas
Rules of Civil Procedure renders the attempted service of process invalid and of no effect. All Commercial
Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 726 (Tex. App.-Fort Worth 2003, no pet.). Likewise, the return
of service has long been considered prima facie evidence of the facts recited therein. Primate Constr., Inc.,
884 S.W.2d at 152.
Heggen v. Graybar Electric Co. (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Yates)
[default judgment, sufficiency of service, defective service of citation)
AFFIRMED: Opinion by Justice Brock Yates
(Before Chief Justice Hedges, Justices Brock Yates and Seymore)
14-06-00058-CV Allen Heggen and Paula Heggen v. Graybar Electric Company, Inc.
Appeal from 234th District Court of Harris County (Judge Reese Rondon)
M E M O R A N D U M O P I N I O N
Appellants Allen Heggen and Paula Heggen (the AHeggens@) appeal from the trial court=s entry of default judgment in favor of
Graybar Electric Company, Inc. (AGraybar@). In one issue, the Heggens seek to set aside the default judgment because
service was defective. We affirm.
I. Facts and Procedural Background
Graybar filed an original petition against several defendants on January 23, 2004 seeking to collect on a materialman's lien.
Graybar added the Heggens as defendants on April 18, 2005 in a second amended original petition. The trial court issued
citations for service of the second amended petition for both Allen and Paula Heggen, which read, "Attached is a copy of
SECOND AMENDED ORIGINAL PETITION . . . . This instrument was filed on the 18th day of April, 2005 in the above cited cause
number and court. The instrument attached describes the claim against you." The returns for the citations recite that a deputy
of the Hidalgo County Sheriff executed the citations on May 11, 2005 by delivering both Allen and Paula Heggen "a true copy of
this Citation together with the accompanying [blank] copy(ies) of the Petition attached thereto." Although the Heggens admit that
"service was made" on them in person by the deputy on May 11, 2005, neither of them answered the second amended petition.
As a result, Graybar moved for a default judgment, which the trial court granted on July 25, 2005. The Heggens thereafter timely
filed a restricted appeal.
The Heggens now urge us on appeal to set aside the default judgment because the return of citation did not refer specifically to
the "Second Amended Petition," which they claim rendered service defective.
II. Standard of Review
A restricted appeal (1) must be brought within six months of the date of judgment, (2) by a party to the suit, (3) who did not
participate in the hearing that resulted in the judgment complained of, and (4) the error must be apparent from the face of the
record. See Tex. R. App. P. 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (per curiam). Review by
restricted appeal entitles the appellant to the same scope of review as an ordinary appeal, except that the error must appear on
the face of the record, which for purposes of a restricted appeal consists of all the documents on file with the trial court when it
rendered judgment. Norman Commc'n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). Therefore, we may
not consider, as part of the record, evidence or documents that were not before the trial court when it rendered judgment. Gen.
Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991). It is undisputed that the Heggens
complied with the first three elements of a restricted appeal. Accordingly, we review only whether error was apparent from the
face of the record.
The Heggens contend that, because the return referenced the "Petition," rather than the "Second Amended Original Petition,"
and thus failed to reference the pleading that named them as defendants, we must set aside the default judgment for defective
service. Texas Rule of Civil Procedure 106(a)(1) states that an authorized person shall serve a citation by "delivering to the
defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached
thereto." Texas Rule of Civil Procedure 107 provides that for personal service of a citation, the return of citation shall (1) be
endorsed or attached to the citation, (2) state when the citation was served, (3) state the manner of service, and (4) be signed by
the officer officially or by the authorized person. Texas law has long required that, for a default judgment to withstand direct
attack, strict compliance with the rules of service of citation affirmatively appear on the record. Primate Constr., Inc. v. Silver, 884
S.W.2d 151, 152 (Tex. 1994). The return of citation constitutes prima facie evidence of the facts asserted therein. Id. However,
even under a strict compliance standard, we afford returns a fair, reasonable, and natural construction and give effect to their
plain intent and meaning. Brown-McKee, Inc. v. J.F. Bryan & Assoc., 522 S.W.2d 958, 959 (Tex. Civ. App. -Texarkana 1975, no
writ). Moreover, "[t]he return in its entirety, together with the citation to which it refers, must be considered in determining its
sufficiency." Id.; see also Tex. Nat'l Bank v. Greystone Publ'g Co., No. B14-86-788-CV, 1987 WL 13548, at *2 (Tex. App.-
Houston [14th Dist.] July 9, 1987, no writ) (not designated for publication) (reviewing the citation and return to determine whether
proper agent had been served).
The Heggens' contention that the return was defective fails for several reasons. First, the return meets each of the
requirements outlined in Rule 107, and the Heggens do not contend otherwise. Second, courts have upheld the sufficiency of
returns under similar facts. In Ortiz v. Avante Villa at Corpus Christi, the court held a return strictly complied with Rule 107 where
it identified the document served as the "Petition attached" to the citation, and the citation identified the document served as the
"PLAINTIFFS' ORIGINAL PETITION," which was the exact title of the petition. 926 S.W.2d 608, 612 (Tex. App. - Corpus Christi
1996, writ denied). Similarly, in Herbert v. Greater Gulf Coast Enterprises, Inc., the court held a return strictly complied with Rule
107 where it recited that a copy of the "Complaint" had been served, but the plaintiff had titled the pleading a "petition," because
"Complaint" is synonymous with "petition." 915 S.W.2d 866, 871 (Tex. App.- Houston [1st Dist.] 1995, no writ).
In both Ortiz and Herbert, the decisive fact was that the language in the citation and return varied only slightly, which did not
make it unclear whether the appropriate documents were served and thus did not render service defective. Cf. Westcliffe, Inc. v.
Bear Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex. App.- Dallas 2003, no pet.) (holding that omission of initial AD." from
registered agent's name in return did not invalidate service); Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.- Houston
[14th Dist.] 1987, writ ref'd n.r.e.) (finding strict compliance with Rule 107 and no uncertainty that proper defendant was served
where return described agent as "Philipee Petitfreere" and petition and citation described agent as "Philippe Petitfrere").
Similar to Ortiz, the citation before us describes the document served as the "Second Amended Original Petition," and the return
describes such document as the "Petition attached" to the copy of the citation. (emphasis added). Reading the return under its
plain meaning and in conjunction with the citation reveals that the deputy served both appellants with a copy of the petition
attached to the citation, which clearly stated was the "Second Amended Original Petition" As such, we cannot say that the slight
language variation between the return and citation created uncertainty to a degree rendering service defective.
Finally, Primate, on which the Heggens solely rely, is distinguishable. See Primate, 884 S.W.2d at 152. There, as here, the
appellants were named as defendants only in a second amended original petition. Id. However, though the citation described
the pleading served as the "Plaintiffs' Second Amended Petition," the return described such pleading as the "Plaintiffs' Original
Petition." Id. The Supreme Court accordingly found an error in service on the face of the record because "the only proof that
Primate . . . was served with anything at all is a return which recites service of a pleading in which it had not been sued." Id. at
153 (emphasis added). Thus, unlike the present case, the return in Primate expressly and directly conflicted with the citation.
Moreover, here, the return does not recite service of a pleading in which the Heggens were not sued ("Petition attached" to the
citation). Indeed, the Primate return's "deviation from absolute accuracy was much more pronounced" than the return here.
See Herbert, 915 S.W.2d at 871.
Therefore, because we find the return strictly complied with Rule 107 and because we find no error on the face of the record
compelling a reversal of the default judgment, we overrule the Heggens' sole issue.
The judgment of the trial court is affirmed.
/s/ Leslie Brock Yates
Judgment rendered and Memorandum Opinion filed January 9, 2007.
Panel consists of Chief Justice Hedges and Justices Yates and Seymore.
 As a threshold matter, Graybar contends the Heggens erroneously brought a "direct appeal" rather than an application for
writ of error. The record indicates the Heggens timely filed a restricted appeal under Texas Rule of Appellate Procedure 30.
Restricted appeals under Rule 30 replaced writs of error under former Texas Rule of Appellate Procedure 45. See Tex. R. App.
P. 30 & cmt.; Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 309 n.3 (Tex.
App.- Houston [1st Dist.] 2001, pet. denied). Therefore, Graybar's contention lacks merit.