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 and motion for new trial after default | 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 | grant of new trial after default judgment DEFAULT JUDGMENT APPEALS - CASELAW FROM THE FIRST AND FOURTEENTH COURT OF APPEALS Jackson v. Textron Fin. Corp. (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Boyce) (no answer default judgment reversed, answer was on file, general vs. sworn denial and counterclaim) REVERSED AND REMANDED: Opinion by Justice Boyce Before Justices Frost, Brown and Boyce 14-07-01011-CV Robert W. Jackson v. Textron Financial Corporation and Longagribusiness LLC N/K/A Farmtrac North America Appeal from 80th District Court of Harris County Trial Court Judge: Lynn M. Bradshaw-Hull Afri-Carib Enterprised, Inc. v. Mabon Limited. (Tex.App.- Houston [14th Dist.] Mar. 31, 2009)(Yates) (default judgment, bill of review, no proper notice of trial setting, suspended attorney) REVERSED AND REMANDED: Opinion by Justice Brock Yates Before Justices Brock Yates, Seymore and Boyce 14-07-00650-CV Afri-Carib Enterprises, Inc. v. Mabon Limited Appeal from 165th District Court of Harris County Trial Court Judge: John Thomas Wooldridge World Environmental,LLC v. Wolfpack Environmental, LLC (Tex.App.- Houston [1st Dist.] Mar. 12, 2009)(Jennings)(default judgment, restricted appeal, suit on account, quantum meruit) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Jennings Before Justices Jennings, Keyes and Higley 01-08-00561-CV World Environmental, LLC v. Wolfpack Environmental, LLC Appeal from County Court at Law No 2 of Montgomery County Trial Court Judge: Judge Jerry Winfree 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. 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) 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) 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 Ltd. (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) OPINION EXCERPTS 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. 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. 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). ===== |
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