law-service-of-process | citation | sufficiency of service | substituted service per motion and order of the court |
notice of suit | appearance in lawsuit | restricted appeal | bill of review |
Rule 106 of the Texas Rules of Civil Procedure provides:
Unless the citation or an order of the court otherwise directs, the citation shall be served by
any person authorized . . . by (1) 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, or (2) 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. If a defendant is served by certified mail under Rule 106(a)(2), then Rule 107 requires that
“the return by the officer or authorized person must also contain the return receipt with the addressee’s
signature.” Tex. R. Civ. P. 107. Failure to affirmatively show strict compliance renders the attempted service of
process invalid and of no effect. Uvalde Country Club, 690 S.W.2d at 885. Several Texas courts have held that
process is invalid where the face of the record shows that the addressee or a person designated to receive
service did not sign the green slip. See id. (holding service invalid where registered agent named “Henry
Bunting, Jr.” but service delivered to “Henry Bunting”); see also Sw. Sec. Serv., Inc. v. Gamboa, 172 S.W.3d 90,
93 (Tex. App.—El Paso 2005, no pet.) (concluding that service directed to registered agent named “Jesus
Morales” was invalid when signed for by “Guillermo Montes”); All Commercial Floors, Inc. v. Barton & Rasor, 97 S.
W.3d 723, 727 (Tex. App.—Fort Worth 2003, no pet.) (holding that return receipt signed by “Mark,” with illegible
last name, was invalid, given Kelly Lynn Arreola was designated to receive service for defendant);
Pharmakinetics Labs., Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.—San Antonio 2001, no pet.) (holding service
of process defective when receipt card was signed by someone other than registered agent); Bronze & Beautiful,
Inc. v. Mahone, 750 S.W.2d 28, 29 (Tex.App.—Texarkana 1988, no writ) (same). “If someone other than the
defendant named in the citation is served with process, the court [does] not secure jurisdiction over the named
defendant.” P&H Transp. v. Robinson, 930 S.W.2d 857, 860 (Tex. App.—Houston [1st Dist.] 1996, writ denied).
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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