law default judgments | void judgment | void order | improper service of process | sufficiency of service of
citation | due diligence | restricted appeals | bill of review suit |
Recent Default Judgment Appeals and Related Cases
from the Texas Supreme Court
But the effect of default on a plaintiff’s claim for unliquidated damages is clear: once a default judgment is
taken, all factual allegations contained in the petition, except the amount of damages, are deemed admitted.
See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)
Sells v. Drott, No. 07-0848 (Tex. July 11, 2008)(per curiam) (default judgment set aside)
LAVERNA SELLS v. EARL DROTT; from Smith County; 12th district (12-07-00020-CV, ___ SW3d ___, 07-18-
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment, vacates the trial court judgment, and
remands the case to the trial court.
Per Curiam Opinion
Koa Holdings, LP v. Young, No. 07-0197 (June 13, Tex. 2008) (Hecht)
(default judgment, restricted appeal, partnership law, partner vs. partnership as defendant, effect of failure to
name and serve defendant in individual capacity, individual liability of partner vs. liability of partnership)
KAO HOLDINGS, L.P., D/B/A SEBRING APARTMENTS AND WILLIAM KAO v. ANNIE LEE YOUNG; from Harris
County; 14th district (14-05-00398-CV, 214 SW3d 504, 11-21-06)
motion to take judicial notice denied
Levine v. Shackelford, No. 06-0553 (Tex. Jan. 11, 2008)(per curiam)
(default judgment, motion to set aside, standard, motion for new trial, Craddock test)
SOL LEVINE, DOROTHEA LEVINE, AND MARDAN ENERGY CORPORATION v. SHACKELFORD, MELTON &
MCKINLEY, L.L.P.; BRAGG, CHUMLEA, MCQUALITY; AND JOSEPH G. CHUMLEA, P.C.; from Dallas County;
5th district (05-05-00374-CV, ___ S.W.3d ___, 04/07/06)
Proulx v. Wells, No. 06-0258 (Tex. Aug 31, 2007)(per curiam)(service of citation, due diligence)
In Re Discount Rental, Inc., No. 05-0249 (Tex.
Mar. 2, 2007)(per curiam) (void judgment, defective service, lack of authority to order sale, enforcement of
Hubicki v. Festina A. Lichtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default
judgment, insufficient service of process)
Wachovia Bank v. Gilliam, No. 05-0903 (Tex. Feb. 9, 2007)(per curiam)
(restricted appeal, default judgment, insufficient service of corporate citation)
Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571(Tex. 2006).
Fidelity and Guaranty Ins. Co. v. Drewery Construction Co., No. 05-0295 (Tex. Feb. 24,
2006)(per curiam opinion) (default judgment, service of process)
COURTS OF APPEALS CASES
MALRIE VENSON ELLIS v. MANDA KAY ELLIS; from Tyler County; 13th district (13-07-00034-CV, ___ SW3d
___, 02-07-08) (divorce default judgment, motion for new trial denied)
KATIN CORP. v. BEA LOESCH; from Travis County; 3rd district (03-05-00412-CV, ___ SW3d ___, 08-10-07,
pet. denied Jan 2008)
Default judgment against corporate defendant whose registered agent refused service of citation affirmed
KATHERINE WEEKS v. AFFILIATED COMPUTER SERVICES, INC.; from Dallas County; 5th district
(05-06-00996-CV, ___ SW3d ___, 08-10-07, pet. denied Jan 2008) (no-answer default judgment reversed,
service through Secretary of State not proper)
Affiiated Computer Services, Inc. appeals the no-answer default judgment rendered against ACS in a lawsuit
filed by Katherine Weeks. In three issues, ASC contends the trial court lacked jurisdiction because it was not
properly served, or in the alternative, the default judgment should be set aside under Craddock v. Sunshine
Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). We sustain ACS's first issue and reverse the trial
In its first issue, ACS contends the trial court's jurisdiction was not validly invoked because it was never served
with process. In particular, ACS argues the petition was sent to the registered agent for the “terminated” ACS
and was returned to Weeks. ACS further contends Weeks did not serve its current registered agent and ACS
did not receive notice of the lawsuit before the default judgment was entered. After reviewing the record, we
agree with ACS.
On direct appeal from a default judgment, the record must affirmatively show that the trial court had personal
jurisdiction over the defendant. See Infra-Pak (Dallas), Inc. v. Narmour, 852 S.W.2d 565, 566 (Tex. App.-Dallas
1992, no pet.). There are two essential elements of personal jurisdiction. First, the defendant must be
amenable to the court's jurisdiction and, second, the plaintiff must validly invoke that jurisdiction by valid
service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985).
When, as here, the default judgment is attacked on improper service grounds, the record must show strict
compliance with the rules relating to proper service. Allodial Ltd. Partnership v. Susan Barilich, P.C., 184 S.W.
3d 405, 408 (Tex. App.-Dallas 2006, no pet.); 14850 Quorum Associates, Ltd. v. Moore Bus. Forms, Inc., 7 S.
W.3d 166, 168 (Tex. App.-Dallas 1998, no pet.). Service may be made on a foreign corporation through its
president, any vice presidents, or a registered agent of the corporation. Tex. Bus. Corp. Act ann. art. 8.10
(Vernon Supp. 2006). Thus, in this case, due process requires a showing that CT Corporation System was a
proper party to receive service for ACS. See Infra-Pak, 852 S.W.2d at 566; NBS Southern, Inc. v. Mail Box,
Inc., 772 S.W.2d 470, 471 (Tex. App.-Dallas 1989, writ denied).
The record shows that CT Corporation System was listed with the Secretary of State as the registered agent
for ACS. However, the status of the corporation on that listing is shown as “terminated.” The Secretary of
State's records also contains a listing for ACS with an “active” status. That listing shows Corporation Service
Company as the registered agent for ACS. Under these circumstances, we cannot conclude the record in this
case shows CT Corporation System was a proper party to receive service for ACS. We sustain ACS's first
Accordingly, we reverse the trial court's judgment and remand for further proceedings.
PETER H. EGGERT v. LEE ROY GAITAN; from Erath County; 11th district (11-06-00117-CV, ___ SW3d ___,
09-06-07, pet. denied Jan 2008) This is an appeal from the trial court's order setting aside a default judgment
in favor of Peter H. Eggert and granting Lee Roy Gaitan's motion for new trial. We affirm.