law-service-of-process | citation | sufficiency of service | notice of suit | restricted appeal | bill of review |

SERVICE OF CIVIL PROCESS - IMPROPER SERVICE

Niessen Velasco v. Ayala (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley) (void judgment)
(motion for new trial, service by publication, service of process on defendant in foreign country)
We conclude that, because Betsabe is a citizen of a Mexico and the record shows that her address in Mexico was
known to Alfonso at the time he sought to effect service on her (which was the same day he filed his petition
containing her address in Mexico), and because Betsabe was not duly served with citation under the law, the trial
court did not acquire personal jurisdiction over her and the trial court’s judgment is void. We hold that the trial
court abused its discretion by failing or refusing to grant Betsabe’s motion for new trial.
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Opinion by Justice Higley     
Before Justices Jennings, Higley and Sharp   
01-07-01053-CV   Betsabe Ivonne Niessen Velasco v. Alfonso Ignacio Ayala   
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster  

WAIVER OF DEFECTS IN SERVICE OF PROCESS

A defendant waives any defect in service by filing an answer.  See Tex. R. Civ. P. 121
(“An answer shall constitute an appearance of the defendant so as to dispense with the
necessity for the issuance or service of citation upon him.”); Burrow v. Arce, 997 S.W.2d 229, 246
(Tex. 1999) (“The filing of an answer dispenses with the necessity of service of citation.”); Dawson-Austin v.
Austin, 968 S.W.2d 319, 322 (Tex. 1998); In re $475,001.16, 96 S.W.3d 625, 628–29 (Tex. App.—Houston [1st
Dist.] 2002, no pet.).  
Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible detainer)
Here, Whitmire appealed the default judgment of the justice court and answered Greenridge’s petition in the
county court.  Whitmire’s appeal and answer to Greenridge’s petition constitutes an appearance, and he
therefore waived any complaint regarding defects in service of process.  See Tex. R. Civ. P. 121; Burrow, 997 S.
W.2d at 246; Dawson-Austin, 968 S.W.2d at 322; In re $475,001.16, 96 S.W.3d at 628–29.


Bank Repossessed Car Co. v. Who's Calling, Inc. (Tex.App.- Houston [14th Dist.] Sep. 4, 2007)(Anderson)
(restricted appeal, default judgment, 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 Co Civil Ct at Law No 2 of Harris County (Judge Gary Michael Block)

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