Opinion
No. 01-99-00665-CV
June 10, 1999
On Appeal from the 80th District Court, Harris County, Texas, Trial Court Cause No. 98-49443
Jeffrey A. Lehmann and John B. Wallace, for Appellant.
Philip H. Azar, II and Lawrence S. Rothenberg, for Appellee.
OPINION
Appellant, Hercules Concrete Pumping Service, Inc. (Hercules), brings this restricted appeal from a no-answer default judgment granted in favor of appellee, Bencon Management and General Contracting Corporation (Bencon). Among other complaints, Hercules argues that the return of citation does not show service on it and, accordingly, the default judgment should be reversed. We reverse and remand.
We use the proper name of "Bencon" as it appears in the judgment of January 11, 1999.
BACKGROUND AND PROCEDURAL HISTORY
In 1996, general contractor Bencon hired subcontractor Hercules to service an underground pipe. During the pumping operations, the PVC pipe collapsed making it totally unfunctional for its purpose.
In 1998, Bencon filed suit against Hercules for damages. Hercules did not enter an appearance and did not file an answer. Bencon moved for a default judgment stating: (1) citation issued on October 23, 1998; and (2) Hercules was properly and personally served with citation and a copy of Bencon's petition on October 29, 1998. Bencon's certificate of last known address listed Hercules's address as 1330 Genoa, South Houston, Harris County, Texas 77587 and named its registered agent, at the same address, as George W. Brock.
The trial court granted Bencon's motion for default judgment and, after a hearing, entered judgment in Bencon's favor. Bencon was awarded damages, attorney's fees, and interest. Hercules filed a notice of restricted appeal. See Tex.R.App.P. 26.1(c), 30.
Hercules later filed an amended notice of restricted appeal in this Court that complies with Tex.R.App.P. 25.1(d)(7), (f). The amended notice of appeal was filed before appellant Hercules filed its brief.
RESTRICTED APPEAL
To succeed on a restricted appeal, a party is required, among other things, to show that error is apparent on the face of the record. Tex.R.App.P. 30; Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex.App.-Houston [1st Dist.] 1999, no pet.); see Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (so holding with respect to appeal by writ of error, which was replaced by restricted appeal). That is the only issue disputed in this case.
A restricted appeal is a direct attack. Barker CATV Constr., Inc., 989 S.W.2d at 792; see Primate Constr., Inc., 884 S.W.2d at 152 (so holding with respect to appeal by writ of error, which was replaced by restricted appeal). The record must affirmatively show strict compliance with the rules for service of citation in order for a default judgment to withstand direct attack. Primate Constr., Inc., 884 S.W.2d at 152; Barker CATV Constr., Inc., 989 S.W.2d at 792. If strict compliance is not affirmatively shown, the service of process is invalid and has no effect. Barker CATV Constr., Inc., 989 S.W.2d at 792. There are no presumptions in favor of valid issuance, service, or return of citation in the face of a restricted appeal attack on a default judgment. See Primate Constr., Inc., 884 S.W.2d at 152 (so holding with respect to appeal by writ of error, which was replaced by restricted appeal).
SUFFICIENCY OF THE RETURN OF CITATION
Hercules attacks the return of citation here as fatally defective. The return reads as follows:
The return was located at the bottom of the page also containing the citation. The citation was directed to: "HERCULES CONCRETE PUMPING SERVICE INC. (TEXAS CORPORATION) BY SERVING ITS REGISTERED AGENT GEORGE W. BROCK, 1330 GENOA, SOUTH HOUSTON TX 77587."
Received on the 28th day of Oct., 1998 at 9:25 o'clockA. M., and executed the same in Harris County, Texas, on the29th day of Oct., 1998, at 12:07 o'clock P.M., by summoning the __________________, a corporation (by delivering toGeorge W. Brock, in person ________
(by leaving in the principal office during office hours
______________________of the said Hercules Concrete Pumping a true copy of this notice, together with accompanying copy of original petition
Serving __________________ cop ___ $45.00
By /s/ L.B. Rogers
_________________________ Deputy L.B. Rogers (stamped) Bill Bailey, Constable (stamped) Precinct No. 8, Harris County (stamped)
(Underlining and italics indicate handwritten insertions.) The return fails to show the position of George W. Brock, nor does it give the complete, correct name of the party being sued. Rather than naming "Hercules Concrete Pumping Services, Inc.," it names "Hercules Concrete Pumping."
Hercules argues that the return of service is defective because it shows service on "George W. Brock" or on "the principal office," neither of which was sued in this case and neither of which is named in the judgment. Further, Hercules asserts that the return "fails absolutely" to show service upon it and, thus, is fatally defective. Bencon responds that reviewing the record, including the citation and the return of service, in its entirety establishes that Hercules was duly served with process through its registered agent, George W. Brock.
In Primate Construction, Inc. v. Silver, the Texas Supreme Court stated that the return of citation is not a trivial, formulaic document. 884 S.W.2d at 152. The return is considered prima facie evidence of the facts recited therein. The recitations in the return carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party. Id.
The language of the return, "George Brock, in person _____________________of the said Hercules Concrete Pumping," does not establish that the person served is in fact the defendant's registered agent for service of process. Nor does it establish that the "Hercules Concrete Pumping" served was the defendant below, Hercules Concrete Pumping Services, Inc. See Pleasant Homes, Inc. v. Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989) (not necessary for petition or citation to designate officer to be served by name if face of record affirmatively shows person's authority); Barker CATV Constr., Inc., 989 S.W.2d at 793 (return insufficient where it did not state delivered to corporation through its registered agent, James M. Barker); Verlander Enters., Inc. v. Graham, 932 S.W.2d 259, 261(Tex.App. El Paso 1996, no writ) (notation "Jim Gore" on return does not establish that person served is in fact agent for service of process or that corporation was served); Brown-McKee, Inc. v. J.F. Bryan Assoc., 522 S.W.2d 958, 959 (Tex.Civ.App.-Texarkana 1975, no writ) (use of a corporate name in return different from that in the citation indicates a different entity; therefore, record does not affirmatively show service on defendant).
CONCLUSION
Because the return of citation "fails absolutely" to show service on the defendant, Hercules Concrete Pumping Services, Inc., the return was fatally defective. See Primate Constr., Inc., 884 S.W.2d at 152-53; Barker CATV Constr., Inc., 989 S.W.2d at 793. Proper service not being affirmatively shown, there is error on the face of the record. See Primate Constr., Inc., 884 S.W.2d at 153.
Accordingly, we sustain appellant's first issue, reverse the judgment of the trial court, and remand the cause to the trial court for further proceedings. The disposition of the first issue makes unnecessary a discussion of the remaining issues.