Opinion
No. 09-10-00256-CV
Submitted on April 1, 2011.
Opinion Delivered June 16, 2011.
On Appeal from the 75th District Court Liberty County, Texas, Trial Cause No. CV0902148.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
In this case, we consider whether a default judgment must be overturned because the citation was not served on a person authorized by a corporation to accept service. United Services Automobile Association (USAA) appeals from a default judgment taken by Frederick L. McGuire. We hold that the record fails to establish that USAA was properly served with citation. Accordingly, we reverse the trial court's judgment and remand the case to the trial court for further proceedings.
McGuire sued USAA over a dispute regarding whether his automobile insurance policy, issued by USAA, covered medical expenses that he had incurred. After a hearing, the trial court signed an order dated February 8, 2010, defaulting USAA for its failure to appear. On April 13, 2010, the trial court signed an "Amended Order of Default Judgment," awarding damages, attorney's fees, and costs to McGuire. USAA filed a notice of appeal from the trial court's April 13 order. To further protect its rights, USAA also filed a notice of restricted appeal from the trial court's February 8 order.
In issue one, USAA addresses whether the February 8 order is appealable, or whether the April 13 order constitutes the final and appealable judgment. We conclude the April 13 order serves as the trial court's final and appealable judgment. The February 8 order did not dispose of all of McGuire's claims, nor does the February 8 order contain language indicating the trial court intended its February order to serve as a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001) (directing appellate courts to look to the record in determining whether a judgment actually disposes of every pending claim). In contrast, although the trial court's April 13 order does not contain a "Mother Hubbard" clause, it disposes of all of the claims that McGuire raised in his petition and includes an award of costs. See id. Therefore, we conclude that the "Amended Order of Default Judgment" was intended by the trial court to be the final judgment. We further conclude that USAA's notice of appeal, filed May 26, 2010, was filed within the time allowed for perfecting an appeal from a final judgment. See Tex. R. App. P. 26.1, 26.3 (permitting extension of time to file notice of appeal). We hold that USAA timely filed an appeal from the trial court's final judgment.
USAA's remaining six issues address whether USAA was properly served with citation. McGuire's petition alleges that USAA could be served by serving its president, Josue Robles, Jr., at an address in San Antonio. McGuire's process server mailed a citation to Robles, sending it by certified mail, return receipt requested; however, a person named Martin A. Delgado signed the return receipt. The record contains no explanation regarding whether Delgado is an employee of USAA, or whether Delgado was authorized to accept service for USAA. McGuire's appellate brief states that "Delgado is a Director in the finance department of USAA[.]"
In issue two, USAA asserts that, absent Robles's signature on the return receipt, the record demonstrates that USAA was not properly served. USAA concludes that the judgment the trial court entered, following USAA's failure to answer based on delivering the citation to Delgado, should be reversed. In response, McGuire argues that the addressee on the "green card" need not necessarily be the person who signs the return receipt on a corporation's behalf, but he provides no authority for that argument. See Tex. R. App. P. 38.1(i).
A party obtaining a default judgment must demonstrate that he complied with the rules for service of citation to withstand a direct attack on the judgment. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Under the Texas Rules of Civil Procedure, citation may be served by "mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto." Tex. R. Civ. P. 106(a)(2). "When the citation was served by registered or certified mail as authorized by Rule 106, the return by the . . . authorized person must also contain the return receipt with the addressee's signature." Tex. R. Civ. P. 107. "`If the return receipt is not signed by the addressee, the service of process is defective[.]'" PPI Tech. Services, LP v. Christian Operating Co., No. 09-09-00022-CV, 2009 Tex. App. LEXIS 5852, *3 (Tex. App.-Beaumont July 30, 2009, no pet.) (mem. op.) (quoting Bradley Wells Corp. v. Higginbotham, No. 12-04-00114-CV, 2004 Tex. App. LEXIS 9667, *6 (Tex. App.-Tyler Oct. 29, 2004, no pet.) (mem. op.)); see also Keeton v. Carrasco, 53 S.W.3d 13, 19 (Tex. App.-San Antonio 2001, pet. denied).
To accept process, a corporation acts through its authorized employees or its authorized agents. See All Commercial Floors, Inc. v. Barton Rasor, 97 S.W.3d 723, 727 (Tex. App.-Fort Worth 2003, no pet.) (noting that "a corporation is not a person capable of accepting process, and it must be served through its agents"); Wohler v. La Buena Vida in W. Hills, Inc., 855 S.W.2d 891, 892 (Tex. App.-Fort Worth 1993, no writ) (holding that delivery of citation is proper only when delivered to a party capable of receiving it). While McGuire could have served USAA by serving its president, an active vice-president, secretary, or attorney in fact, there was no evidence before the trial court that Delgado was one of the persons who were authorized to accept service. See Tex. Ins. Code Ann. § 804.101(b)(1) (West 2009).
Moreover, McGuire sought to serve Robles as USAA's president and Robles's signature is not on the return receipt. Generally, the "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., Inc., 690 S.W.2d 884, 885 (Tex. 1985). In the absence of a record demonstrating that USAA was properly served with citation, the trial court was not authorized to enter a default judgment. See Tex. R. Civ. P. 124 ("In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules."). It is also well settled that "a default judgment is improper against a defendant who has not been served in strict compliance with law, even if he has actual knowledge of the lawsuit." Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990).
In this case, the record fails to demonstrate that Robles was served as USAA's president, and further fails to demonstrate that anyone authorized to accept service for USAA was served with McGuire's suit. We conclude that service of citation on Delgado was invalid and of no effect. See Uvalde Country Club, 690 S.W.2d at 885. In the absence of a record demonstrating that USAA was properly served with citation, the trial court erred in granting McGuire's request for a default judgment.
We sustain USAA's issue two. We need not address USAA's remaining issues as their resolution would afford USAA no further relief See Tex. R. App. P. 47.1. We reverse the trial court's judgment and remand the case to the trial court for further proceedings consistent with this opinion. See Tex. R. Civ. P. 123.
REVERSED AND REMANDED.