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reversing default judgment where return did not indicate manner of service, as required by Rule 107
Summary of this case from Montgomery v. HitchcockOpinion
No. 14-05-00738-CV
Memorandum Opinion filed October 5, 2006.
On Appeal from the 306th District Court, Galveston County, Texas, Trial Court Cause No. 05FD1043.
Reversed and Remanded.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
MEMORANDUM OPINION
Appellant, Clinton Eugene Payne, appeals the default judgment entered in favor of appellee, Doris I. Payne. We reverse and remand.
BACKGROUND
On April 15, 2005, Doris filed a petition for enforcement of a decree of divorce and an application for a temporary restraining order and temporary injunction. According to Doris' petition, on June 14, 2004, Clinton signed a power of attorney appointing her as his agent in order to effectuate the terms of a final decree of divorce related to stock transactions concerning a certain corporation and the sale of certain real property. Clinton later rescinded the power of attorney. Doris alleges that through fraud, deceit, coercion, manipulation, duress, and intimidation by Clinton, she executed a number of documents, without consideration, divesting her of property she had been awarded in the divorce.
On April 15, 2005, the trial court entered a temporary restraining order prohibiting Clinton from utilizing the documents executed by Doris to transfer, encumber, assign, sell, or affect any of Doris' interests in the property she was awarded in the divorce. Also, in the order, the trial court set a hearing on the application for a temporary injunction for May 5, 2005, with the "condition precedent" of "mediation . . . prior to said hearing."
On April 19, 2005, Clinton was served with the petition and the temporary restraining order. On May 5, 2005, the trial court held a hearing on the temporary injunction, which Clinton did not attend. At the end of the hearing, the trial court requested briefing from Doris' counsel and took the matter under advisement pending the filing of Doris' brief. Clinton did not file an answer, which was due by May 16, 2005, at 10:00 a.m. On May 19, 2005, Doris' counsel filed the requested brief. On May 23, 2005, the trial court rendered its decision in favor of Doris.
A defendant's answer must be filed by 10:00 a.m. on the Monday next following the expiration of 20 days after the date of service. TEX. R. CIV. P. 99(b); Morris v. Zesati, 162 S.W.3d 669, 672 (Tex.App.CEl Paso 2005, no pet.).
The trial court's memorandum announcing its decision is not part of the appellate record.
On June 3, 2005, Clinton filed an objection to the entry of the default judgment, a motion to set aside the default judgment, and a motion for new trial. On June 6, 2005, the trial court held a hearing on the entry of the enforcement order. Clinton's attorney, who was present at the hearing, objected to the entry of the enforcement order. The trial court overruled the motion for new trial and entered a final judgment ordering that the documents signed by Doris were set aside and declared void for failure of consideration, ordering Clinton to execute any and all documents necessary to effectuate its ruling, and awarding $5,500 in fees to Doris' attorney.
On June 8, 2005, Clinton filed an answer to the petition and a first amended motion to set aside the default judgment and, in the alternative, motion for new trial. At a hearing on June 14, 2005, the trial court stated its June 6 ruling overruling Clinton's first motion for new trial "is going to stand." Clinton appeals the trial court's default judgment.
RETURN OF SERVICE
In his first issue, Clinton argues the trial court lacked jurisdiction over him because the return of service was not in strict compliance with the Texas Rules of Civil Procedure. There is no presumption in favor of valid issuance, service, and return of citation in the review of a no-answer default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). "Strict compliance" means literal compliance with the rules governing issuance, service, and return of citation. Amato v. Hernandez, 981 S.W.2d 947, 949 (Tex.App.CHouston [1st Dist.] 1998, pet. denied).
Clinton complains that the manner of service is not specified on the return as required by Rule 107 of the Texas Rules of Civil Procedure, which provides, in relevant part:
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person.
TEX. R. CIV. P. 107 (emphasis added). According to Rule 107, the manner of service must be specified. Faggett v. Hargrove, 921 S.W.2d 274, 277 (Tex.App.CHouston [1st Dist.] 1995, no writ), overruled on other grounds by Barker CATV Constr. v. Ampro, Inc., 989 S.W.2d 789, 793 n. 2 (Tex.App.CHouston [1st Dist.] 1999, no pet.) (en banc); Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank Trust, 476 S.W.2d 97, 99 (Tex.Civ.App.CCorpus Christi 1972, no writ). If any of the requirements of Rule 107 are not satisfied, the citation is fatally defective and will not support a default judgment under direct attack. Faggett, 921 S.W.2d at 277.
The return of service for the petition states, in relevant part:
Came to hand on [the] 19th day of April, 2005 at 1:05 o'clock pm and executed in Harris County, Texas by delivering to the within named defendant CLINTON EUGENE PAYNE, in person or by registered or certified mail, return receipt requested, a true copy of this Citation, with the date of delivery endorsed thereon, together with the accompanying true and correct copy of the Plaintiff's ORIGINAL petition, at the following times and places, to wit: . . .
Emphasis added.
The return then states it was served on Clinton Eugene Payne on April 19, 2005 at 3:40 pm, at 3 Bayshore Drive, La Porte, Texas.
The return of service for the writ and temporary restraining order is nearly identical.
The return provides three methods by which the defendant may be served: (1) in person, (2) registered mail, or (3) certified mail, return receipt requested. However, there is no indication on the return showing the manner of service on Clinton as required by Rule 107 and, thus, it is defective. See Carlson Boat Works v. Hauck, 459 S.W.2d 887, 888 (Tex.Civ.App.CHouston [1st Dist.] 1970, no writ) (stating return of service is defective because of failure to state the manner of service). Therefore, the trial court lacked in personam jurisdiction over Clinton at the time of the hearing and the entry of judgment. We sustain Clinton's first issue.
At the June 3 hearing on his objection to the entry of the default judgment and motion for new trial, Clinton's attorney told the court that "[Clinton] was served and he did speak with the mediator at the time." A default judgment, however, is improper against a defendant who has not been served in strict compliance with the rules, even if he has actual knowledge of the lawsuit. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990); see also Fidelity Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574 n. 1 (Tex. 2006) (explaining that receiving suit papers or actual notice through a procedure not authorized for service is treated the same as never receiving them).
However, on remand, it will not be necessary to serve Clinton because he has entered an appearance by filing a motion for new trial and prosecuting this appeal. See Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex.App.CAmarillo 1984, no writ) (holding the defendant's activities after entry of judgment, by which he sought a new trial, were sufficient to constitute a general appearance "from that time forward"); Fleming v. Hernden, 564 S.W.2d 157, 159 (Tex.Civ.App.CEl Paso 1978, writ ref'd n.r.e.) (holding that by filing a motion for new trial after judgment, the defendant would be before court on remand without necessity of further citation); H.L. McRae Co. v. Hooker Constr. Co., 579 S.W.2d 62, 66 (Tex.Civ.App.CAustin 1979, no writ) (holding appeal from default judgment, though not waiving defects in service, constitutes an appearance from the time it is perfected); Hanover Modular Homes of Taft, Inc., 476 S.W.2d at 102 (holding question of service would not be presented at retrial because, by prosecuting appeal, the defendant entered its appearance for appellate court and further proceedings in the trial court).
Because we are sustaining Clinton's first issue regarding jurisdiction, it is not necessary to address his remaining issues.
Accordingly, we reverse the judgment of the trial court and remand the cause to the trial court for proceedings consistent with this opinion.