Affirmed and Memorandum Opinion filed January 9, =
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00058-CV
____________
ALLEN HEGGEN=20
AND PAULA HEGGEN, =
Appellants
V.
GRAYBAR=20
ELECTRIC COMPANY, INC., =
Appellee
On Appeal from the =
234th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2004-03347
M E M O R=20
A N D U M O P I N I O N
Appellants=20
Allen Heggen and Paula Heggen (the AHeggens@) appeal=20
from the trial court=3Ds entry of=20
default judgment in favor of Graybar Electric Company, Inc. =
(AGraybar@). =20
In one issue, the Heggens seek to set aside the default judgment =
because=20
service was defective. We affirm.
I. =20
Facts and Procedural Background
Graybar=20
filed an original petition against several defendants on January =
23, 2004=20
seeking to collect on a materialman=3Ds=20
lien. Graybar added the Heggens as defendants on April 18, =
2005 in a=20
second amended original petition. The trial court issued =
citations=20
for service of the second amended petition for both Allen and =
Paula=20
Heggen, which read, AAttached=20
is a copy of SECOND AMENDED ORIGINAL PETITION . . . . This=20
instrument was filed on the 18th day of April, 2005 in the above =
cited=20
cause number and court. The instrument attached describes =
the claim=20
against you.@ The=20
returns for the citations recite that a deputy of the Hidalgo =
County=20
Sheriff executed the citations on May 11, 2005 by delivering both =
Allen=20
and Paula Heggen Aa true=20
copy of this Citation together with the accompanying [blank] =
copy(ies) of=20
the Petition attached thereto.@ =20
Although the Heggens admit that Aservice=20
was made@ =
on them=20
in person by the deputy on May 11, 2005, neither of them =
answered=20
the second amended petition. As a result, Graybar moved for =
a=20
default judgment, which the trial court granted on July 25, =
2005. =20
The Heggens thereafter timely filed a restricted =
appeal.
The=20
Heggens now urge us on appeal to set aside the default judgment =
because=20
the return of citation did not refer specifically to the =
ASecond=20
Amended Petition,@ =
which=20
they claim rendered service defective.
II. =20
Standard of Review
A=20
restricted appeal (1) must be brought within six months of the =
date of=20
judgment, (2) by a party to the suit, (3) who did not participate =
in the=20
hearing that resulted in the judgment complained of, and (4) the =
error=20
must be apparent from the face of the record. See =
Tex. R. App. P. 30; =
Quaestor=20
Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. =
1999) (per=20
curiam). Review by restricted appeal entitles the appellant =
to the=20
same scope of review as an ordinary appeal, except that the error =
must=20
appear on the face of the record, which for purposes of a =
restricted=20
appeal consists of all the documents on file with the trial court =
when it=20
rendered judgment. Norman Commc=3Dn v. Tex.=20
Eastman Co., 955=20
S.W.2d 269, 270 (Tex. 1997) (per curiam). Therefore, we may =
not=20
consider, as part of the record, evidence or documents that were =
not=20
before the trial court when it rendered judgment. Gen. =
Elec. Co.=20
v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 944 =
(Tex.=20
1991). It is undisputed that the Heggens complied with the =
first=20
three elements of a restricted appeal. Accordingly, we =
review only=20
whether error was apparent from the face of the record. =20
III. =20
Analysis
The=20
Heggens contend that, because the return referenced the =
APetition,@ =
rather=20
than the ASecond=20
Amended Original Petition,@ =
and thus=20
failed to reference the pleading that named them as defendants, we =
must=20
set aside the default judgment for defective service. Texas =
Rule of=20
Civil Procedure 106(a)(1) states that an authorized person shall =
serve a=20
citation by Adelivering=20
to the defendant, in person, a true copy of the citation with the =
date of=20
delivery endorsed thereon with a copy of the petition attached=20
thereto.@ =20
Texas Rule of Civil Procedure 107 provides that for personal =
service of a=20
citation, the return of citation shall (1) be endorsed or attached =
to the=20
citation, (2) state when the citation was served, (3) state the =
manner of=20
service, and (4) be signed by the officer officially or by the =
authorized=20
person. Texas law has long required that, for a default =
judgment to=20
withstand direct attack, strict compliance with the rules of =
service of=20
citation affirmatively appear on the record. Primate Constr., Inc. =
v.=20
Silver, 884=20
S.W.2d 151, 152 (Tex. 1994). The=20
return of citation constitutes prima facie evidence of the facts =
asserted=20
therein. Id. However, even under a strict =
compliance=20
standard, we afford returns a fair, reasonable, and natural =
construction=20
and give effect to their plain intent and meaning. =
Brown‑McKee, Inc. v.=20
J.F. Bryan & Assoc., 522 S.W.2d 958, 959 (Tex. Civ.=20
App.CTexarkana 1975, no =
writ). =20
Moreover, A[t]he return in its =
entirety,=20
together with the citation to which it refers, must be considered =
in=20
determining its sufficiency.@ Id.; =
see=20
also Tex. Nat=3Dl Bank v. Greystone=20
Publ=3Dg Co., No. =
B14‑86‑788‑CV, 1987 WL=20
13548, at *2 (Tex. App.CHouston [14th Dist.] =
July 9,=20
1987, no writ) (not designated for publication) (reviewing the =
citation=20
and return to determine whether proper agent had been =
served). =20
The =
Heggens=3D contention that the =
return was=20
defective fails for several reasons. First, the return meets =
each of=20
the requirements outlined in Rule 107, and the Heggens do not =
contend=20
otherwise. Second, courts have upheld the sufficiency of =
returns=20
under similar facts. In Ortiz v. Avante Villa at Corpus=20
Christi, the court held a return strictly complied with Rule =
107 where=20
it identified the document served as the APetition =
attached@ to the citation, and =
the=20
citation identified the document served as the APLAINTIFFS=3D ORIGINAL =
PETITION,@ which was the exact =
title of=20
the petition. 926 S.W.2d 608, 612 (Tex. App.CCorpus Christi 1996, =
writ=20
denied). Similarly, in Herbert v.=20
Greater Gulf Coast Enterprises, Inc., the=20
court held a return strictly complied with Rule 107 where it =
recited that=20
a copy of the AComplaint@ =
had been=20
served, but the plaintiff had titled the pleading a Apetition,@ =
because=20
AComplaint@ =
is=20
synonymous with Apetition.@ 915=20
S.W.2d 866, 871 (Tex. App.CHouston=20
[1st Dist.] 1995, no writ). In both Ortiz and =
Herbert,=20
the decisive fact was that the language in the citation and return =
varied=20
only slightly, which did not make it unclear whether the =
appropriate=20
documents were served and thus did not render service =
defective. =20
Cf. =
Westcliffe,=20
Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290 =
(Tex.=20
App.CDallas 2003, no pet.) =
(holding=20
that omission of initial AD.@ from registered=20
agent=3Ds name in return did =
not=20
invalidate service); Payne & Keller Co. v. Word, 732 =
S.W.2d 38,=20
41 (Tex. App.CHouston [14th Dist.] =
1987, writ=20
ref=3Dd n.r.e.) (finding =
strict=20
compliance with Rule 107 and no uncertainty that proper defendant =
was=20
served where return described agent as APhilipee=20
Petitfreere@ and petition and =
citation=20
described agent as APhilippe =
Petitfrere@). Similar to=20
Ortiz, the citation before us describes the document served =
as the=20
ASecond Amended =
Original=20
Petition,@ and the return =
describes such=20
document as the APetition=20
attached@ to the copy of the=20
citation. (emphasis added). Reading the return under =
its plain=20
meaning and in conjunction with the citation reveals that the =
deputy=20
served both appellants with a copy of the petition attached to the =
citation, which clearly stated was the ASecond Amended =
Original=20
Petition.@ As such, we =
cannot say=20
that the slight language variation between the return and citation =
created=20
uncertainty to a degree rendering service defective. =20
Finally, =
Primate, on=20
which the Heggens solely rely, is distinguishable. See=20
Primate, 884 S.W.2d at 152. There, as here, the =
appellants were=20
named as defendants only in a second amended original =
petition. =20
Id. However, though the citation described the =
pleading=20
served as the APlaintiffs=3D Second Amended=20
Petition,@ the return described =
such=20
pleading as the APlaintiffs=3D Original=20
Petition.@ =
Id. The Supreme =
Court=20
accordingly found an error in service on the face of the record =
because=20
Athe only proof that =
Primate . .=20
. was served with anything at all is a return which recites =
service of=20
a pleading in which it had not been sued.@ Id. at =
153=20
(emphasis added). Thus, unlike the present case, the return =
in=20
Primate expressly and directly conflicted with the =
citation. =20
Moreover, here, the return does not recite service of a pleading =
in which=20
the Heggens were not sued (APetition=20
attached@ to the =
citation). =20
Indeed, the Primate return=3Ds Adeviation from =
absolute=20
accuracy was much more pronounced@ than the return =
here. =20
See Herbert, 915 S.W.2d=20
at 871. =20
Therefore, because we =
find the=20
return strictly complied with Rule 107 and because we find no =
error on the=20
face of the record compelling a reversal of the default judgment, =
we=20
overrule the Heggens=3D sole issue. =
The judgment of the =
trial court=20
is affirmed.
/s/ =20
Leslie Brock Yates
Justice
Judgment=20
rendered and Memorandum Opinion filed January 9, 2007.
Panel=20
consists of Chief Justice Hedges and Justices Yates and=20
Seymore.
As a threshold matter, Graybar =
contends the=20
Heggens erroneously brought a Adirect appeal@ rather than an application for writ of=20
error. The record indicates the Heggens timely filed a =
restricted=20
appeal under Texas Rule of Appellate Procedure 30. =
Restricted=20
appeals under Rule 30 replaced writs of error under former Texas =
Rule of=20
Appellate Procedure 45. See Tex. R. App. P. 30 =
& cmt.;=20
Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & =
Gen.=20
Contracting Corp., 62 S.W.3d 308, 309 n.3 (Tex. =
App.CHouston [1st Dist.] 2001, pet. =
denied). =20
Therefore, Graybar=3Ds contention lacks=20
merit. |