Default Judgment Cases and Case Law | Sufficiency of Service of Citation

Default judgment terminology: substitute service | service by publication | return of citation |
no answer default judgment | post-answer default judgment | motion to set aside default | motion to
reinstate | Craddock test | sufficiency of service | defect in service of citation | strict compliance |
adequacy of service of process | entitlement to notice | due diligence | actual notice | not diligent
How to attack and set aside default judgment by direct attack | collateral challenge | bill of review |
restricted appeal | direct appeal | notice of signing of judgment | last known address | error on the
face of the record | appellate time-line | plenary jurisdiction | post-judgement motions | new trial |

Ashworth v. Brzoska (Tex.App.- Houston [14th Dist.] Nov. 4, 2008)(Brown)
(post-answer default judgment, denial of new trial reversed)
REVERSED AND REMANDED: Opinion by Justice Brown
Before Justices Brock Yates, Guzman and Brown
14-07-00239-CV        Douglas Ashworth v. Richard Brzoska
Appeal from 164th District Court of Harris County
Trial Court Judge: Martha Hill Jamison

Berkefelt v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Bland)
(SAPCR modification, default judgment set aside, defective service, service of citation)
(defective service under Rule 106 Order for alternative substitute service)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland)
01-07-00526-CV Randall Earl Berkefelt v. Diane Lynne Jackson
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Hon. K. Randal Hufstetler

Berkefelt v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Bland)
(SAPCR default judgment set aside, defective service)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland)
01-07-00526-CV Randall Earl Berkefelt v. Diane Lynne Jackson
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Hon. K. Randal Hufstetler

Rava Square Homeowners Ass'n v. Swan (Tex.App.- Houston [14th Dist.] Sep. 30, 2008)(Boyce)
(DWOP reversed, motion to reinstate, default judgment)
REVERSED AND REMANDED: Opinion by Justice Boyce
Before Justices Brock Yates, Seymore and Boyce
14-07-00521-CV        Rava Square Homeowners Association v. Kevin J. Swan
Appeal from 80th District Court of Harris County
Trial Court Judge: Lynn M. Bradshaw-Hull

Approximately $14,980.00 v. The State of Texas (Tex.App. - Houston [14th Dist.] Jun. 12, 2008)
(Yates)(default judgment, deemed admission, opportunity to rebut presumption of proper service)
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Guzman and Brown
14-07-00164-CV Approximately $14,980.00 v. The State of Texas
Appeal from 125th District Court of Harris County
CONCURRING: Concurring Opinion by Justice Brown

National Football League Players Inc. v. Balek's Bar-B-Q (Tex. App.- Houston [1st Dist.] Mar. 6,
2008)(Nuchia) (bill or review suit, default judgment on breach of contract, BoC, counterclaim)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO
TC FOR FURTHER PROCEEDINGS: Opinion by Justice Nuchia
01-06-01106-CV National Football League Players Incorporated and National Football League
Players Association v. Blake's Bar-B-Q, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd

Should default judgment resulting from death penalty sanctions in another state be
recognized and enforce in Texas?
Enviropower LLC v. Bear, Stearns & Co., Inc. (Tex. App.- Houston [1st Dist.] Feb. 21, 2008)
(Hanks)(domestication and enforcement of foreign judgment, exception, death penalty sanctions
leading to default judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Keyes and Hanks
01-04-01111-CV Enviropower, L.L.C. v. Bear, Stearns & Co., Inc.
Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison)

Post-answer default judgment must be supported with evidence, no-answer default
judgment not proper one an answer has been filed
Comunidad Balboa, LLC. v. City of Nassau Bay (Tex.App.- Houston [14th Dist.] Feb. 19, 2008)
(Hedges) (default judgment reversed, trial court erred in granting no-answer default judgment
after answer was filed, default judgment not final where other party remained in case)
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justice Anderson, Senior Justice Murphy
14-07-00259-CV Comunidad Balboa, LLC v. City of Nassau Bay
Appeal from 164th District Court of Harris County (Judge Martha Hill Jamison)

Appeals court panel divided on whether default judgment should be set aside on
motion for new trial
Hornell Brewing Co., Inc. v. Lara (Tex.App.- Houston [14th Dist.] Feb. 5, 2008)(Yates) (default
judgment, motion for new trial, defective product, personal injury)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Fowler and Guzman
14-06-00602-CV Hornell Brewing Co., Inc. (a/k/a Arizona) v. Modesto Tony Lara
Appeal from 280th District Court of Harris County (Judge Tony Lindsay)
Dissenting Opinion by Justice Fowler in Hornell Brewing Co., Inc. (a/k/a Arizona) v. Modesto Tony
Lara

The Cadle Co. v. Bray, No. 01-06-00899-CV (Tex.App.- Houston [1st Dist.] Jan. 24, 2008)(Alcala)
(jurisdiction, default judgment, dormant judgment, res judicata)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
The Cadle Company v. Roy H. Bray
Appeal from Co Civil Ct at Law No 1 of Harris County (Judge Jack Cagle)
Appellant, The Cadle Company (“Cadle”), appeals the summary judgment rendered in favor of appellee, Roy H. Bray, that
collaterally attacked and declared void a default judgment against Bray in an earlier case involving the same two parties. Cadle
contends that the trial court improperly granted summary judgment because (1) Cadle’s petition to revive the dormant judgment
that led to the default was a properly filed “action of debt”; (2) the Harris County Court at Law had subject-matter jurisdiction over
Cadle’s petition to revive the judgment underlying the default judgment; and (3) the claims brought by Bray are barred by res
judicata. We conclude that County Court at Law No. 1 had subject-matter jurisdiction to render the default judgment and the
remainder of Bray’s challenges are barred by res judicata. We reverse and render judgment in favor of Cadle.

Heggen v. Graybar Electric Co. (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Yates)
[default judgment, sufficiency of service, defective service of citation)

Parmer v. Hardcastle Parmer (Tex.App.- Houston [1st Dist.] Jul. 19, 2007)(Bland)(post-answer
default judgement, family law case, divorce, paternity issue)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Nuchia, Hanks and Bland
01-04-01225-CV Mark Anthony Parmer v. Helen Christine Hardcastle Parmer
Appeal from 387th District Court of Fort Bend County (Hon. Robert J. Kern)

No answer default judgment based on service of citation by certified mail sustained -
award of unliquidated damages reversed and remanded

Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(default judgment, service
by certified mail, insufficient proof of unliquidated damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO
TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley
Before Justices Taft, Hanks and Higley
01-06-00924-CV Kerry G. Fellows v. Rasheed Adams
Appeal from 127th District Court of Harris County (Hon. Sharolyn Wood)

Notice of appeal was given too late

Alazov . Chmeleva (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(per curiam)(default divorce,
alternative, service, notice of appeal untimely, no jurisdiction to entertain appeal)
DISMISS APPEAL: Per Curiam
Before Justices Taft, Hanks and Higley
01-06-00511-CV Andrei Almazov v. Marina Chmeleva
Appeal from 310th District Court of Harris County (Hon. Lisa Millard)

Restricted Appeal Fails

Bank Repossessed Car Co. v. Who's Calling, Inc. (Tex.App.- Houston [14th Dist.] Sep. 4, 2007)
(Anderson)(restricted appeal, default, service of process on Secretary of State)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Fowler and Seymore
14-05-01251-CV Bank Repossessed Car Co. d/b/a Thirty Car Sales v. Who's Calling, Inc.
Appeal from County Civil Court at Law No 2 of Harris County (Judge Gary Michael Block)

Default Judgments in Family Court Have Different Requirements - Prove-up Essential

Unlike other civil cases in which a defaulting defendant is presumed to admit the petition’s
allegations regarding liability and liquidated damages, the allegations in a divorce petition are not
admitted by a defaulting defendant. Tex. Fam. Code Ann. § 6.701 (Vernon 2006); Wilson v.
Wilson, 132 S.W.3d 533, 538 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see Sandone v.
Miller-Sandone, 116 S.W.3d 204, 207 (Tex. App.—El Paso 2003, no pet.) (noting that divorce
petition may not be taken as confessed if respondent does not file answer).

Vazquez v. Maria Vazquez (Tex.App.- Houston [14th Dist.] May 19, 2007)(Seymore)
(default divorce decree, restricted appeal, family law, divorce, appeal from default judgment]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore
Before Justices Frost, Seymore and Guzman
14-05-01257-CV Amadeo Vazquez v. Maria Vazquez
Appeal from 300th District Court of Brazoria County (Judge K. Randall Hufstetler)

Default Judgment in Suit Affecting the Parent Child Relationship (SAPCR) Affirmed

Harris v. Burks (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Radack)(SAPCR, default judgment
affirmed)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00128-CV        William Francis Harris, Sr. v. Thyra Burks
Appeal from 247th District Court of Harris County (Hon. Bonnie Hellums)

Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town & Country Village (Tex.
App.- Houston [1st Dist.] May 31, 2007)(Jennings)(substituted service on the Secretary of State
was defective and the default judgment in this case cannot stand)
[default judgment, defective service, real estate law, deed, constable sale, set aside]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion
by Justice Jennings
Before Justices Nuchia, Jennings and Higley
01-06-00068-CV Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town &
Country Village-
Appeal from 61st District Court of Harris County (Hon. John Donovan)
Appellant, Marrot Communications, Inc. ("Marrot"), challenges the trial court's no-answer default
judgment rendered in favor of appellee, Town & Country Partnership doing business as Town &
Country Village ("Town & Country"), in Town & Country's suit against Marrot for breach of
contract, fraud, conversion, and quantum meruit/unjust enrichment. In three issues, Marrot
contends that the trial court erred in denying Marrot's motion for new trial "based on defective
service" and, alternatively, "under the Craddock test," (1) and in awarding Town & Country
"tort/punitive damages." . . .
Accordingly, we hold that Town & Country's substituted service on the Secretary of State was
defective and the default judgment in this case cannot stand. See Wilson, 800 S.W.2d at 837;
Ingram Indus., Inc., 121 S.W.3d at 34. We further hold that the trial court erred in granting the
default judgment, not setting it aside, and in denying Marrot's motion for new trial. Having so held,
we need not consider Marrot's second and third issues.
We sustain Marrot's first issue.
We reverse and remand.

Ataya v. State of Texas (Tex.App.- Houston [14th Dist.] Feb. 13, 2007)(Yates)
(post-answer default, motion for new trial, MNT)
AFFIRMED: Opinion by Justice Brock Yates
(Before A, Justices Brock Yates and Seymore)
14-05-01264-CV        Wafic Tawfic Ataya, Sawssan Ataya a/k/a Sawssan Mohamad Elehikh-Issa
and Victory Wholesale, Inc. v. The State of Texas
Appeal from 334th District Court of Harris County (Judge Sharon McCally)

Harveston Securities Inc. v. Narnia Investments L td. (Tex.App.- Houston [14th Dist.] Jan. 11, 2007)
(Frost) (restricted appeal, default judgment, sufficiency of service)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00206-CV        Harveston Securities Inc. v. Narnia Investments L.T.D.
Appeal from 270th District Court of Harris County
Dissenting Opinion by Justice Edelman In Harveston Securities Inc. v. Narnia

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)

OPINIONS

Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(default judgment, service
by certified mail, insufficient proof of unliquidated damages)

MEMORANDUM OPINION This is an appeal from a no-answer default judgment rendered against
appellant, Kerry G. Fellows, in favor of appellee, Rasheed Adams. In three points of error, Fellows
contends that the trial court erred by rendering the default judgment because (1) service was
defective, (2) Adams's "pleading was insufficient" to demonstrate liability, and (3) no hearing was
held regarding the unliquidated damages that were awarded.

We affirm in part, and reverse and remand in part.

Background

On September 9, 2002, Adams hired attorney Fellows to represent him in a federal criminal
matter. The parties executed an "Attorney Employment Contract" ("Contract"), pursuant to which
Adams agreed to pay Fellows $12,500 to negotiate a plea agreement and to pay Fellows $40,000
if a satisfactory plea could not be reached and the case went to trial. Pursuant to the Contract,
Fellows was to obtain the release of money and property that was seized by federal officials from
Adams when he was arrested. Fellows was then to take his $12,500 fee out of the property
recovered, specifically, from "watches and funds in the approximate amount of $67,000.00."

Subsequently, a plea agreement was reached. Adams asserts that the money and property at
issue were released, that Fellows kept $12,500, as agreed, and that Fellows returned $39,500 to
Adams's wife. Adams contends that Fellows failed to return $15,800 in cash and $38,800 in
"computer equipment."

Adams asserts that, on November 4, 2004, he sent a letter to Fellows, demanding the return of
these items. On May 10, 2005, Fellows turned over a portion of the property and agreed in writing
to return the computer equipment within 10 days. Adams asserts that Fellows never turned over
the $15,800 or the computer equipment.

On October 31, 2005, Adams sued Fellows (1) for breach of contract, fraud, and conversion.
Adams served Fellows through the deputy constable by certified mail. The return receipt reflects
an illegible signature that Adams asserts, and Fellows does not dispute, is Fellows's signature.
Fellows failed to answer.

Almost a year later, on July 21, 2006, the trial court rendered a default judgment in favor of
Adams. (2) The trial court concluded that Fellows had been duly served but had failed to answer
and awarded Adams $54,600.00 plus interest and costs. The record shows that Adams filed his
motion for default judgment a month later, on August 22, 2006, to which he appended his affidavit.

On August 30, 2006, Fellows filed an answer and a motion to set aside the default judgment. After
a hearing, the trial court denied the motion.

Service of Process

In his first point of error, Fellows contends that the trial court erred by rendering a default
judgment against him because service of process was defective.

A default judgment cannot withstand a direct attack by a defendant who shows that he was not
served in strict compliance with the rules governing service of process. Primate Constr., Inc. v.
Silver, 884 S.W.2d 151, 152 (Tex. 1994); Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d
789, 792 (Tex. App.--Houston [1st Dist.] 1999, no pet.). There are no presumptions of valid
issuance, service, or return of citation when examining a default judgment. Silver, 884 S.W.2d at
152; Ampro, Inc., 989 S.W.2d at 792. Jurisdiction over the defendant must affirmatively appear by
a showing of due service of process, independent of recitals in the default judgment. Ampro, Inc.,
989 S.W.2d at 792.

Texas Rule of Civil Procedure 106, which governs service of citation, provides, in pertinent part,
that citation must be served by delivering a copy of the citation and petition to the defendant, in
person, or by "mailing to the defendant by registered or certified mail, return receipt requested, a
true copy of the citation with a copy of the petition attached thereto." Tex. R. Civ. P. 106. When a
citation is served by registered or certified mail as authorized by Rule 106, the officer's return
must "contain the return receipt with the addressee's signature." Tex. R. Civ. P. 107.

Here, the record shows that service on Fellows was by a deputy constable on November 10, 2005,
and that it was "[e]xecuted at P.O. Box 36324 Houston, TX 77236, by mailing to . . . Kerry G.
Fellows" by "registered/CERTIFIED MAIL with delivery RESTRICTED TO ADDRESSEE ONLY."
The return is signed by the deputy and contains the return receipt. The record shows that "P.O.
Box 36324 Houston, TX 77236" is Fellows's address. The return receipt bears an illegible
signature that Adams asserts, and Fellows does not dispute, is Fellows's signature. Fellows
contends that service was defective because the "Restricted Delivery" box is not checked on the
return receipt.

Rule 106 requires that citation be mailed to the defendant "by registered or certified mail, return
receipt requested," with a copy of the petition attached. Tex. R. Civ. P. 106. Rule 106 no longer
requires "restricted delivery." Fellows does not direct us to any authority, and we find none, that
currently holds that failure to check the box for restricted delivery on the return receipt constitutes
defective service.

Accordingly, Fellows's first point of error is overruled.

Sufficiency of the Pleading

In his second point of error, Fellows contends that the trial court erred by rendering a default
judgment against him because Adams's "pleading is insufficient" to demonstrate liability.
Specifically, Fellows contends that Adams "fail[ed] to assert that [Fellows] ever took possession of
said money or computers."

A. Standard of Review and Principles of Law

Upon call of the docket or at any time after a defendant is required to answer, the plaintiff may
take a default judgment against the defendant if he has not previously answered and provided
that the citation and return have been on file with the clerk for 10 days. Tex. R. Civ. P. 107, 239. A
no-answer default judgment is properly granted if (1) the plaintiff files a petition that states a
cause of action, (2) the petition invokes the trial court's jurisdiction, (3) the petition gives fair
notice to the defendant, and (4) the petition does not disclose any invalidity of the claim on its
face. Texaco, Inc. v. Phan, 137 S.W.3d 763, 769 (Tex. App.--Houston [1st Dist.] 2004, no pet.). If
the facts set out in the petition allege a cause of action, a default judgment conclusively
establishes the defendant's liability. Id. (citing Morgan v. Compugraphic Corp., 675 S.W.2d 729,
731 (Tex. 1984)). The non-answering party is deemed to have admitted all facts properly pleaded.
Id. (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)). Consequently, the
non-answering party is precluded from challenging the sufficiency of the evidence supporting his
liability. Phan, 137 S.W.3d at 770.

B. Analysis

Here, Adams sued Fellows for, inter alia, breach of contract. Recovery under a breach of contract
claim requires proof of four elements: (1) the existence of a valid contract, (2) performance or
tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4)
damages sustained by the plaintiff as a result of the breach. Crowder v. Sheirman, 186 S.W.3d
116, 118-19 (Tex. App.--Houston [1st Dist.] 2005, no pet.). We examine the pleadings to
determine whether the facts set out sufficiently plead a cause of action to support the judgment.

Adams asserts in his petition that he entered a written contract with Fellows, pursuant to which
Adams agreed to pay Fellows $12,500 to represent him in plea negotiations with the federal
government. In addition, Fellows agreed to recover property belonging to Adams which was in the
custody of federal authorities. Pursuant to the Contract, Fellows's $12,500 fee was to be paid
from "the money and jewelry in the possession of the federal government as soon as recovered
by Attorney Fellows." The parties do not dispute the validity of the Contract.

In his petition, Adams asserts that a plea agreement was reached, that Fellows recovered the
Adams's property from the federal government, and that Fellows's services concluded. Adams
alleges that Fellows was entitled to retain $12,500 for his services and that Fellows turned over
$39,500 to Adams's wife. Adams asserts that, on May 10, 2004, Fellows executed an additional
written agreement to turn over the recovered "computer equipment" still in his possession. Adams
asserts that Fellows breached the Contract by failing to return to Adams $15,800 in cash and
computer equipment valued at $38,800. Adams asserts that, as a result, he has sustained
$54,600 in damages.

We conclude that these facts set out in the petition allege a cause of action for breach of contact;
hence, the default judgment conclusively establishes Fellows's liability. See Morgan, 675 S.W.2d
at 731.

Accordingly, Fellows's second issue is overruled.

Sufficiency of the Proof of Damages

In his third point of error, Fellows contends that the trial court erred by awarding unliquidated
damages without a hearing.

In a no-answer default judgment, the failure to file an answer operates as an admission of the
material facts alleged in the petition, except as to unliquidated damages. Heine, 835 S.W.2d at 83.
If the damages being claimed are unliquidated, the court rendering a default judgment must hear
evidence as to damages. Tex. R. Civ. P. 243; Heine, 835 S.W.2d at 83. It is error for the trial court
to fail to require proof of unliquidated damages before rendering a default judgment for such
damages. See Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.--Dallas 1994, no writ).

A claim for damages is liquidated if the amount of damages can be accurately calculated by the
court from the factual, as opposed to the conclusory, allegations in the petition and written
instruments. See Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.--Houston [14th Dist.]
2001, no pet.). When a claim is liquidated and proven by written instrument, the trial court must
assess damages and render final judgment unless the defendant demands and is entitled to a
trial by jury. See Tex.R. Civ. P. 241.

Here, Adams alleges in his petition that Fellows breached the Contract because he failed to return
$15,800 in cash and "computer equipment" valued at $38,800. Adams attached, as support for
his allegations, a copy of the Contract and the receipt Fellows signed promising to return the
computer equipment. The Contract reflects that the parties agreed that Fellows's $12,500 would
come out of "the watches and funds in the approximate amount of $67,000" in the custody of the
federal government, of which Fellows was to obtain release.

In addition, Adams attached a receipt from his attorney at the time, Ron Johnson, acknowledging
that Fellows had returned certain jewelry and cash to Adams's wife. The receipt bears the
signatures of Johnson and Adams's wife. The receipt also reflects that "Fellows agrees to provide
remaining computer equipment within 10 days," and bears Fellows's signature. The receipt does
not mention the $15,800 in cash allegedly outstanding. Adams did not offer any facts as to the
basis of the valuation of the computer equipment at issue.

We conclude that Adams failed to provide any factual bases to support his allegation that $15,800
remains outstanding from what was recovered by Fellows from federal authorities or that $38,800
is the value of the computer equipment at issue. (3) Hence, Adams's claim for damages is
unliquidated because the amount of damages cannot be accurately calculated by the court from
the factual allegations in the petition and written instruments. See Novosad, 38 S.W.3d at 773.
Documents that represent merely conclusory allegations will not support an amount awarded for
unliquidated damages. See id.; Jones, 873 S.W.2d at 107. Accordingly, we hold that Adams failed
to support the award for damages.

Accordingly, we sustain Fellows's third point of error.

Conclusion

We reverse and remand the trial court's judgment as to the issue of damages. See Heine, 835 S.
W.2d at 86 (explaining that, when no-evidence point is sustained as to unliquidated damages
resulting from no-answer default judgment, appropriate disposition is to remand for new trial on
issue of unliquidated damages); Morgan, 675 S.W.2d at 734 (explaining that new trial is limited to
issue of damages because liability is already established by default). We affirm the trial court's
judgment in all other respects.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Hanks, and Higley.

=====================================

Standard of Review

An appellant filing a restricted appeal must demonstrate the following elements: (1) the appellant appealed within
six months after the judgment was rendered; (2) the appellant was a party to the suit; (3) the appellant did not
participate in the actual trial of the case; and (4) error appears on 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). Because the parties do not dispute that
the first three elements of a restricted appeal have been met, we address whether error appears on the face of
the record.

Thrifty makes two arguments in support of its claim of defective service. In its first argument, Thrifty contends
service of process was defective because the citation and return are not consistent. In its second argument,
Thrifty contends service was defective because the appellate record does not contain a certificate from the
Secretary of State affirmatively showing that the Secretary of State forwarded a copy of the petition to Thrifty.[2]

II. The Citation and Return are Consistent

In its first argument, Thrifty contends the citation and return are not consistent because the citation purports to
serve Manoocher Babaahmadi at Thrifty's registered office, and the return purports to serve Thrifty through the
Secretary of State. Thrifty does not claim it was improperly named in Plaintiff's First Amended Original Petition,
the citation, or the return.

In reviewing a default judgment, there is no presumption in favor of valid issuance of service of process. Primate
Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); N. C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 717
(Tex. App.- Austin 2003, pet. denied). In order for a default judgment to withstand direct attack, strict compliance
with the rules of service of citation must affirmatively appear on the record. Whitworth, 124 S.W.3d at 718. Failure
to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process
invalid and of no effect. Id. Texas Rule of Civil Procedure 107 provides that A[t]he return of the officer or authorized
person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was
served and the manner of service and be signed by the officer officially or by the authorized person." Tex. R. Civ.
P. 107. The recitations in the return are prima facie evidence of the facts recited in the return. Primate Constr.,
Inc., 884 S.W.2d at 152.

In this case, contrary to Thrifty's contention, the citation is directed "To: Bank Repossessed Car Co., a Corporation
Doing Business as Thrifty Car Sales Incorporated by the Secretary of State of the State of Texas." The citation
also recites Thrifty's address in the following manner: "Defs. Adrs: Manoocher Babaahmadi, at the Registered
Office, 7723 Moonmist, Houston, TX 77036."[3] The name of Thrifty's registered agent and the address of Thrifty's
registered office were included in the citation to aid the Secretary of State in attempting service upon Thrifty by
certified mail, which it did.[4] The language of the citation directs service upon Thrifty "by the Secretary of State of
the State of Texas." The officer's return provides that copies of the petition and citation were delivered to Thrifty "by
delivering to Roger Williams, Secretary of State of the State of Texas, at 1019 Brazos Street, Austin, Texas, 78701,
by delivering to LORENA BERNAL designated agent for service for the Secretary of State . . . ."

Who's Calling's First Amended Original Petition alleges:

The Defendant corporation, a Texas domestic corporation, a corporation for profit and subject to the provisions of
the Texas Business Corporation Act, incorporated by Articles of Incorporation issued by the Secretary of State of
the State of Texas, may be served with citation pursuant to Section B of said Article 2.11, by reason of the following
premises. The Defendant corporation has failed to maintain a Registered Agent in the State of Texas. The
Defendant=s Registered Agent cannot, with reasonable diligence, be found at the Registered Office. Therefore,
the Secretary of State of the State of Texas is an agent for the Defendant corporation and process may be served
upon the Secretary of State of Texas as agent for the Defendant corporation.[5]

Our review of the papers on file with the trial court at the time it entered the default judgment against Thrifty,
including the amended petition, citation, and return, clearly reflects that the amended petition and citation were
served upon Thrifty through the Secretary of State, which was identified as Thrifty's registered agent. See Uvalde
Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 884-85 (Tex. 1985) (holding the name of the agent
for service of process alleged in plaintiff's petition must match the name of the agent upon who process was
served as reflected in the return). We overrule Thrifty's argument that error appears on the face of the record
because the citation and return are not consistent.

III. A Certificate From the Secretary of State is Part of the Appellate Record

In its second argument, Thrifty claims service was defective because the record does not contain a certificate
from the Secretary of State showing that the Secretary of State forwarded a copy of the process to Thrifty. See
Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973) (holding a showing in the record that the Secretary of
State forwarded a copy of the process is essential to establish the court=s jurisdiction). The supplemental clerk's
record filed in this court on March 16, 2007 contains a certificate issued by the Secretary of State on May 17, 2005.
The certificate provides that a copy of the citation and Plaintiff's First Amended Original Petition were received by
the Secretary of State and forwarded, by certified mail, to Bank Repossessed Car Co., Manoocher Babaahmadi,
7723 Moonmist, Houston, TX 77036. The certificate further provides, :The PROCESS was returned to this office
on May 16, 2005, bearing the notation Attempted - Not Known." Because the record contains a certificate from the
Secretary of State affirmatively showing that the Secretary of State forwarded a copy of the process to Thrifty, we
conclude error is not apparent on the face of the record and overrule appellant=s second argument.

Appellant's first issue is overruled.

Conclusion

Having considered and overruled appellant=s single issue on appeal, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed September 4, 2007.

Panel consists of Justices Anderson, Fowler, and Seymore.

--------------------------------------------------------------------------------

[1] Article 2.11(B) provides:

Whenever a corporation shall fail to appoint or maintain a registered agent in this State, or whenever its
registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State
shall be an agent of such corporation upon whom any such process, notice, or demand may be served. . . .

Tex. Bus. Corp. Act Ann. art. 2.11(B). In its First Amended Original Petition, Who=s Calling alleges Thrifty=s
registered agent cannot, with reasonable diligence, be found at the registered office. Thrifty makes no arguments
on appeal regarding the use of reasonable diligence by Who=s Calling.

[2] Such a certificate from the Secretary of State is known as a "Whitney certificate" based on the style of the case
in which the Texas Supreme Court first held such a certificate was necessary. See Whitney v. L & L Realty Corp.,
500 S.W.2d 94, 96 (Tex. 1973); Harvestons Securities, Inc. v. Narnia Inv., Ltd., 218 S.W.3d 126, 131 n.6 (Tex. App.-
Houston [14th Dist.] 2007, pet. filed).

[3]   Thrifty's registered agent is Manoocher Babaahmadi. Thrifty's registered office is located at 7723 Moonmist,
Houston, TX 77036.

[4] A certificate issued by the Secretary of State on May 17, 2005 provides that a copy of the citation and Plaintiff's
First Amended Original petition was received by the Secretary of State and forwarded, by certified mail, to "Bank
Repossessed Car Co., Manoocher Babaahmadi, 7723 Moonmist, Houston, TX 77036."

[5] In the context of a no-answer default judgment, these factual statements in the amended petition are deemed
admitted. Holt Atherton Indus. v. Heine 835 S.W.2d 80, 83 (Tex. 1992).

=====

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.[1]

III. Analysis

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

Justice

Judgment rendered and Memorandum Opinion filed January 9, 2007.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

--------------------------------------------------------------------------------

[1] 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.