Summary
holding trial court does not acquire jurisdiction if notice is served on the wrong person
Summary of this case from MEX FLORES PRO. v. GARCIAOpinion
No. 04-03-00309-CV.
Delivered and Filed: November 5, 2003.
Appeal from the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 94-CI-07661, Honorable Martha Tanner, Judge Presiding.
REVERSED AND REMANDED.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
This is a restricted appeal in which Marina Karin Bauer-Reeb, formerly known as Marina Karin Noone ("Marina"), seeks to set aside an order based on defective service of process. We reverse the trial court's order and remand the cause to the trial court for further proceedings consistent with this opinion.
We do not address Marina's alternative issues because they are not necessary to the disposition of this appeal. See Tex.R.App.P. 47.1 (opinion must only address issues necessary to final disposition of the appeal).
"For well over a century, [the Texas Supreme Court] has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack." Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). "There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment." Id. "Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect." Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985).
The third amended motion filed by appellee, John B. Noone ("John"), reflects that Marina is a resident of Germany. Rule 108a of the Texas Rules of Civil Procedure permits service of process to be effected on Marina in the manner provided by Rule 106. Tex. R. Civ. P. 108a. Rule 106(a) authorizes citation to be served by certified mail, return receipt requested. Tex.R.Civ.P. 106(a).
The only evidence of service contained in the record before us is a certified mail receipt which appears to have been sent on July 25, 2002. Although the certified mail receipt was sent to the same address contained in the third amended motion and is signed, we cannot ignore an earlier letter sent from the individual at that address apparently in response to the attempted service of the first amended or second amended motion. In that letter, the recipient of the citation encloses a copy of her personal identification card and informs the district clerk that although her name is Karin Bauer, she has never been married, and she does not know either John or Marina. The letter further states:
I therefore request that you no longer bother me with this matter, otherwise I will be forced to engage the services of an attorney. For the present I will refrain from demanding from you and/or Mr. Noone reimbursement of the costs I have incurred thus far in this matter.
Enclosed you will find a copy of my personal identification card as well as the original of your letter referenced above in complete release of me.
The law is well-established that "where notice is served on the wrong person, although of the same name as the defendant," the trial court "does not acquire jurisdiction, and the judgment rendered is without validity, force or effect." State Mortgage Corp. v. Traylor, 36 S.W.2d 440, 444 (Tex. 1931); see also Dezso v. Harwood, 926 S.W.2d 371, 373 (Tex.App.-Austin 1996, writ denied) (service of a person with the same or similar name against whom party does not have cause of action will not support a default judgment). Because the record as a whole does not affirmatively show strict compliance with Rule 106(a), the trial court did not acquire jurisdiction to enter any order.
The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.