Opinion
NO. 09-18-00389-CV
07-16-2020
BARBARA H. LANGFORD, INDIVIDUALLY AND D/B/A SLH TRANSPORTATION, Appellant v. QUALITY EVENT FLOORING SYSTEMS, Appellee
On Appeal from the 172nd Judicial District Court Jefferson County, Texas
Trial Cause Nos. E-200,621 and E-200,621-A
MEMORANDUM OPINION
In a restricted appeal, Barbara H. Langford, individually and d/b/a SLH Transportation (Langford) challenges the trial court's no answer default judgment in favor of Quality Event Flooring Systems ("Quality"). See Tex. R. App. P. 26.1(c). In one issue, Langford argues that the trial court erred when it granted the default judgment because Quality did not serve Langford by citation with its "First Amended Original Petition," resulting in no return of service on file, and "constituting error on the face of the record." For the reasons explained below, we affirm the trial court's default judgment against Langford.
Langford also filed a special appearance contesting the trial court's jurisdiction The trial court denied Langford's special appearance, along with Langford's motion for new trial. Langford does not appeal the jurisdictional issues.
Background
This appeal arises from a lawsuit Quality filed against Total Quality Logistics ("Total") and Langford. Quality contracted with Total to provide floor mats for a graduation ceremony at a university in Virginia. Total then contracted with Langford to deliver the floor mats from Florida to Virginia. Langford failed to deliver the entire order, and Quality was forced to contract with another company to supply the floor mats to the university.
As a result, Quality sued both Total and Langford for negligence, and sued Total for a "separate cause of action . . . under the Texas Uniform Declaratory Judgements Act, § 37.001 et seq, CPRC." Quality served Langford by citation with its original petition, individually as a resident of Florida at 6029 Northwest 22nd Court, Bell, Florida 32619, and as a business pursuant to Texas Civil Practices and Remedies Code section 17.041 through the Texas Secretary of the State, which was then forwarded to Langford doing business as SLH Transportation at 6029 Northwest 22nd Court, Bell, Florida 32619, via certified mail, return receipt requested. Total filed its own cross-claim against Langford seeking indemnity and reimbursement of all damages and expenses incurred for defending the litigation, including reasonable attorney's fees. Langford failed to file an answer to Quality's original petition or Total's cross-claim or otherwise make any appearance in the lawsuit.
Quality then filed a First Amended Original Petition and certified in a certificate of service that a copy of the First Amended Petition was "forwarded to all counsel of record." Langford did not file an answer in response to Quality's First Amended Petition. Subsequently, Quality filed a Motion for Entry of Default Judgment against Langford for breach of contract because Langford failed to respond after being properly served with Quality's original petition. The trial court then granted Quality's motion for default judgment, ordering Langford to pay $92,230 in damages to Quality.
The trial court also severed Quality's litigation against Langford into cause number E-200,621-A.
Upon receiving notice of the default judgment from both Quality and the clerk's office, Langford filed a Verified Special Appearance and Motion to Dismiss for Lack of Jurisdiction. Langford also filed a motion for new trial and original answer subject to her special appearance. After a hearing on Langford's motion for new trial, the trial court denied Langford's special appearance and motion for new trial. Langford then filed this restricted appeal.
Restricted Appeal
In a single issue, Langford argues that the trial court erred by granting the default judgment because there was no return of service for Langford on file for Quality's First Amended Original Petition. Langford argues that because the First Amended Original Petition "added more onerous facts and allegations against [Total] which directly impact[ed] Langford[,]" the default judgment should be set aside because Langford was not personally served with a new citation with the First Amended Original Petition.
First, we must address whether Langford may complain of the default judgment on appeal. To successfully attack an order by restricted appeal, the appealing party must show: (1) they filed a notice of restricted appeal within six months after the judgment or complained-of order was signed; (2) they were a party to the underlying lawsuit; (3) they did not participate either in person or through counsel in the hearing that resulted in the complained-of judgment and did not timely file post-judgment motions or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014); see also Tex. R. App. P. 26.1(c), 30. The only element at issue in this case is whether there was error on the face of the record, and we limit our analysis to that element.
Service of the First Amended Petition
Langford does not contest that Quality properly served her with its original petition or that she failed to file an answer or make an appearance in the case before the trial court entered a default judgment. Langford's only contention is that she was not served with a new citation with Quality's First Amended Original Petition, a petition that she claims is more "onerous," and therefore required "proof of service as provided by [107(h)] or by Rules 108 or 108a, or . . . executed by an alternative method under Rule 106[.]" We disagree. We will assume without deciding that Quality's First Amended Original Petition was more onerous, and therefore required service upon Langford. The Texas Supreme Court explained in In re E.A., service of a more onerous petition upon a non-answering defendant pursuant to Rule 21a satisfies that service requirement. 287 S.W.3d 1, 6 (Tex. 2009); see also Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (holding that a certificate of service creates a presumption of service); see also Tex. R. Civ. P. 21a. Service of new citation is no longer required. 287 S.W.3d at 6. Here, there is no dispute that Langford was served by citation with Quality's Original Petition and did not answer or otherwise make an appearance in the lawsuit. Quality was not required to have a new citation prepared and served on Langford with the First Amended Original Petition, but rather to comply with Rule 21a. See In re E.A., 287 S.W.3d at 4 ("While a non-answering defendant must be served with a more onerous amended petition in order for a default judgment to stand, we agree with the court of appeals that Rule 21a service satisfies that requirement."). Accordingly, we must determine if Quality complied with the terms of Rule 21a service. See id.
Rule 21a
Rule 21a provides that "court papers served by certified mail must be sent 'by certified or registered mail, to the party's last known address.'" In re E.A., 287 S.W.3d at 5 (quoting Tex. R. Civ. P. 21a). "Service by mail is 'complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office of official depository . . . .'" Id. A certificate of service is prima facie evidence of service. Id.; Cliff, 724 S.W.2d at 779-780.
Quality attached a certificate of service with its First Amended Original Petition providing prima facie evidence of Rule 21a service. Langford did not present any evidence that she did not receive the First Amended Original Petition under the allowed means of service under Rule 21a other than to assert that she did not receive personal service of it with citation. While a certificate of service is prima facie evidence of service, Texas Rule of Civil Procedure 21a(e) provides, "Nothing herein shall preclude any party from offering proof that the document was not received, or, if service was by mail, that the document was not received within three days from the date that it was deposited in the mail . . . ." Tex. R. Civ. P. 21a(e). Although Quality did not provide the means of service to Langford in its certificate of service, as noted by our sister court, "Rule 21a does not require that a certificate of service detail the method of service used." See Approximately $14,980.00 v. State, 261 S.W.3d 182, 187 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Langford failed to provide the Court with any evidence that she did not receive the amended petition after Quality provided prima facie evidence of Rule 21a service. See Cliff, 724 S.W.2d at 780; Graham-Rutledge Co. v. Nadia Corp, 281 S.W.3d 683, 691 (Tex. App.—Dallas 2009, no pet.). Therefore, because Quality provided prima facie evidence of Rule 21a service, the trial court did not err by granting the default judgment. Compare In re E.A., 287 S.W.3d at 5 (explaining that because the plaintiff did not attach a certificate of service to the petition, he did not provide prima facie evidence of service).
Quality's certificate of service states that "I do hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all counsel of record[.]" While it is undisputed that Langford was a pro se litigant in this case until after the summary judgment, this is not a fatal error to Quality's certificate of service. "[N]otice properly sent pursuant to Rule 21a raises a presumption that notice was received." Graham-Rutledge Co. v. Nadia Corp, 281 S.W.3d 683, 691 (Tex. App.—Dallas 2009, no pet.) (quoting Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005)). "However, the opposing party may rebut this presumption by offering proof that the notice or document was not received." Id. (quoting Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987)).
There appears to be a dispute in Langford's motion for new trial that Quality served them on March 16, 2018, with citation. At the hearing on the motion for new trial, Quality explained to the trial court that the citation on file for March 16th was service by Total for its pleadings and cross claim and that citation was served on Langford. At the hearing, Langford did not argue that the assertions in the motion for new trial were accurate but continued to argue that it was entitled to service of a more onerous petition.
We note that we have previously held that error on the face of the record is a jurisdictional issue, and failure to establish such error required the appeal to be dismissed for lack of jurisdiction. See In re J.A.G., 172 S.W.3d 155, 160 (Tex. App.—Beaumont 2005, no pet.). Recently, however, the Texas Supreme Court unequivocally held that error on the face of the record is not jurisdictional, and as such, we affirm the judgment of the trial court. Ex parte E.H., No. 18-0932, 2020 WL 2503898, at *7 (Tex. May 15, 2020).
AFFIRMED.
/s/_________
CHARLES KREGER
Justice Submitted on October 8, 2019
Opinion Delivered July 16, 2020 Before Kreger, Horton and Johnson, JJ.