Opinion
No. 05-07-01444-CV
Opinion Filed March 13, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. 06-14239-A.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Unifund CCR Partners, as Assignee of Palisades Collection LLC, appeals the trial court's order dismissing this case for want of prosecution. In a single issue, Unifund contends the trial court's dismissal was improper because it was entitled to a default judgment. We affirm the trial court's order. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied is well settled.
Unifund, as the purchaser of a credit card account, sued Linda E. Jaeger for amounts claimed to be due. The record contains a file-marked return of service showing service of the petition, requests for admissions, and disclosures on December 1, 2006. The return of service shows delivery by attaching to the main entrance of Jaeger's last known address pursuant to Texas Rule of Civil Procedure 106. Rule 106 allows the trial court to sign an order approving service by means other than delivery in person, provided the plaintiff files a motion, supported by proper affidavit. See Tex. R. Civ. P. 106. The record contains no motion, affidavit, or order authorizing substitute service pursuant to rule 106.
Jaeger failed to answer the lawsuit and Unifund moved for default judgment on January 4, 2007. Thereafter, the trial court dismissed the case on March 12, 2007, but reinstated the case pursuant to Unifund's motion to reinstate. Unifund claimed in its request for reinstatement that its process server had been mistaken about authorization for rule 106 service and that Unifund would correct the problem. At no time thereafter did Unifund file a proper return of service.
The trial court again warned Unifund by notice dated August 16, 2007 that the case was set for dismissal on September 14, 2007. The notice stated specifically: ". . .you will be expected to have moved for, and to have had heard, a summary judgment or to have proved up a default judgment on or prior to that date. Your failure to have done so will result in the dismissal of the case on the above date." At no time did Unifund file a proper return of service. Pursuant to the dismissal notice, the trial court signed an order of dismissal on September 20, 2007, citing (i) failure to take action after notice of intent to dismiss for want of prosecution in accordance with rule 165a notice, and (ii) want of prosecution. Unifund filed this appeal September 28, 2007.
Unifund states in its notice of appeal that it is appealing the September 14, 2007 order of the trial court. The dismissal order was signed September 20, 2007, and the record contains no September 14 order.
Unifund argues it was entitled to default judgment on liquidated damages because its pleadings and evidence, including deemed admissions, support Unifund's claims. Unifund complains it "should not have its case dismissed for want of prosecution because the trial court has additional requirements for granting default judgments above and beyond what the law requires."
The law requires proof of service before a plaintiff may take judgment by default. See Tex. R. Civ. P. 107 (at any time after a defendant is required to answer, a plaintiff may take judgment by default if the defendant has not previously filed an answer and the citation with proof of service has been on file with the clerk for ten days). The record must show that the trial court has jurisdiction of the subject matter and the parties, and that the case is ripe for judgment. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968). Jurisdiction over a defendant must be established by an affirmative showing of service of citation independent of recitals in the default judgment. Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex.App. 2001, no pet.). Unless a defendant has voluntarily appeared before judgment, strict compliance with the rules relating to proper service must appear affirmatively in the record. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). See also Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (failure to show strict compliance with rules relating to proper service renders any attempted service invalid and requires setting aside a default judgment).
Here, Unifund failed to obtain an order authorizing substitute service pursuant to rule 106 and failed to file a return of service showing personal delivery. Unifund was aware of the error, and represented in its motion to reinstate that the defect would be corrected. Without proper service, the trial court never obtained personal jurisdiction over Jaeger and could not render judgment for Unifund.
We overrule Unifund's sole issue and affirm the trial court's dismissal order.