Johnny's Mercedes, Inc. v. Walter Barrett ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-98-00571-CV

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Johnny's Mercedes, Inc., Appellant

v.

Walter Barrett, Appellee

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FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. 240,740, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

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Walter Barrett sued Johnny's Mercedes, Inc. for negligence and violations of the Deceptive Trade Practices-Consumer Protection Act ("DTPA"). See Tex. Bus. & Com. Code Ann. §§ 17.41 et seq. (West 1987 & Supp. 1999). Johnny's Mercedes failed to answer the lawsuit and the county court at law rendered a default judgment in favor of Barrett. Johnny's Mercedes contends there was not strict compliance with the rules of civil procedure regarding citation and service of process and therefore the default judgment should be reversed. We will affirm the judgment.

Background

On May 13, 1996, Johnny's Mercedes performed transmission repairs on Barrett's Mercedes automobile. On May 8, 1998, Barrett filed suit against Johnny's Mercedes alleging negligence and violations of the DTPA arising from the May 1996 repair work. Barrett's petition asserted that Johnny's Mercedes could be "served with process by delivering a copy of the citation, with a copy of the petition attached, to its registered agent Henry R. Perez at 6010 North Lamar, #107, Austin, Texas 78752." The county clerk issued a citation for service "to Johnny's Mercedes, Inc. By and through serving its REGISTERED AGENT: Henry R. Perez" at the address set out in the petition. The entire citation was printed or typed with the exception of the name of the registered agent for service of process, "Henry R. Perez," which was handwritten. The return of service which appears in the record shows delivery on May 8, 1998, to "JOHNNY'S MERCEDES, INC., by delivering to JOHNNY PEREZ, president." Johnny's Mercedes did not answer the lawsuit or appear at an evidentiary hearing held on June 8. The county court at law entered a default judgment against Johnny's Mercedes and awarded Barrett $52,287.50 as damages and attorney's fees. On June 9, the Travis County Clerk sent Johnny's Mercedes notice of the default judgment. Johnny's Mercedes did not file a motion for new trial, request findings of fact and conclusions of law, or file a motion to set aside the default judgment in the trial court. On September 15, the Travis County Clerk issued a writ of execution. On October 20, Johnny's Mercedes timely perfected a restricted appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.013 (West 1997); Tex. R. App. P. 26.1(e).

Discussion

Johnny's Mercedes contends that the default judgment should be reversed because the record reflects that (1) the citation was improperly amended and (2) service of the citation was not effected on a named defendant because there was no allegation or proof on the face of the record that Johnny Perez, who accepted service, was an officer in the corporation.

To succeed on a restricted appeal one must show: (1) the appeal was brought within six months of the date the judgment is signed by the court, (2) by a party to the suit, (3) who did not participate in the hearing that resulted in the judgment complained of; (4) error must appear on the face of the record, and (5) the appellant must not have timely filed a post-judgment motion, a request for findings of fact or conclusions of law, or a timely notice of appeal. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012 and 51.013 (West 1997); Tex. R. App. P. 26.1(c), 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (citing DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991)); L.P.D. v. R.C., 959 S.W.2d 728, 729-30 (Tex. App.--Austin 1998, pet. denied). A restricted appeal affords an appellant the same scope of review as an ordinary appeal--review of the entire case. Norman Communications, 955 S.W.2d at 270. The only restriction on the scope of review is that the error must appear on the face of the record. Id. (citing General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex. 1991)). The record consists of all papers filed with the trial court, including the clerk's and the reporter's records. Norman Communications, 955 S.W.2d at 270 (citing DSC Fin. Corp., 815 S.W.2d at 551); L.P.D., 959 S.W.2d at 730. The only question before us is whether error appears on the face of the record, the other elements necessary for a successful restricted appeal being undisputed.

When a default judgment is attacked directly by a restricted appeal, the face of the record must show that there was strict compliance with the rules of civil procedure respecting the issuance of citation, the manner and mode of service, and the return of process. See McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). There are no presumptions in favor of valid issuance, service, and return of citation in a 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 invalid and of no effect. Uvalde Country Club, 690 S.W.2d at 885. The trial court's jurisdiction is dependent upon citation being issued and served in a manner provided by law. Wilson v. Dunn, 800 S.W.2d 833, 836-37 (Tex. 1990). We determine if the citation and service of process were proper or whether error appears on the face of the record.

Handwritten Name of Agent For Service of Process

In its first issue, Johnny's Mercedes contends that the citation cannot support the default judgment because it was "amended sometime after it was printed or typed by adding the name Henry Perez as the agent for service" for Johnny's Mercedes. ⁽¹⁾

Johnny's Mercedes contends that the face of the record does not affirmatively show that the handwritten name of Henry Perez was an amendment made by the clerk before issuance or that the county court ordered the amendment be made after issuance of the citation.

Texas Rule of Civil Procedure 118 provides that:

At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Tex. R. Civ. P. 118.

Barrett responds that the citation is not flawed because the record does not reflect that the handwritten name changed or amended the citation in any way from what was originally served. Additionally, Barrett argues that the rules of civil procedure do not require that the citation be printed or typed in its entirety. See Tex. R. Civ. P. 99 (issuance and form of citation). Rule 99 requires that the name of the defendant and the person to be served appear as part of the citation. Id. Rule 99 does not require a citation to be typed or printed in its entirety. Although Johnny's Mercedes contends that the handwritten name was an addition, amendment or change to the citation, the record does not reflect that fact. There was strict compliance with Rule 99--the name of the defendant and the person to be served appeared as part of the citation. The first issue is overruled.

Service Upon Person Not Named as a Defendant in the Petition

In its second issue, Johnny's Mercedes contends that service of process was not effected on a named defendant. Johnny's Mercedes contends that there was no proof or assertion in the record that Johnny Perez was an officer of the corporation that would be an agent for service of process pursuant to the Texas Business Corporation Act, article 2.11(A). See Tex. Bus. Corp. Act Ann. art. 2.11(A) (West 1980).

The return of service states that the citation, with the petition and requests for production attached, was

[e]xecuted at 319 E. Ben White Blvd., Austin TX. 78704, within the County of Travis by delivering to JOHNNY'S MERCEDES, INC., by delivering to JOHNNY PEREZ, president, in person, a true copy of the above specified civil process having first endorsed on such copy the date of delivery.

(Emphasis added.)

"The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served." Tex. Bus. Corp. Act. Ann. art. 2.11 (West 1980). A return showing delivery of process to a vice-president or president, as authorized by applicable statute, is prima facie evidence that the person served is in fact the officer as designated. Pleasant Homes, Inc. v. Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989). It is not necessary for either the petition or citation to designate the officer to be served by name if the face of the record affirmatively shows the person's authority. Id. "A defendant who contends that the person served is not in fact a proper officer for service has the burden to present evidence to the trial court of improper service by motion for new trial or motion to set aside default judgment." Id.

The return of service in this case states that it was delivered to "JOHNNY'S MERCEDES, INC., by delivering to JOHNNY PEREZ, president." The return of service provides prima facie evidence on the face of the record that Johnny Perez was president of Johnny's Mercedes. Id. If this was incorrect, it was Johnny's Mercedes's burden to present evidence to the trial court that Johnny Perez was not a proper officer for service of process by a motion for new trial or motion to set aside a default judgment. ⁽²⁾ The return of service was sufficient to sustain the default judgment. The second issue is overruled.

Conclusion

Finding no error apparent on the face of the record, we affirm the default judgment.

Lee Yeakel, Justice

Before Justices Jones, B. A. Smith and Yeakel

Affirmed

Filed: August 12, 1999

Do Not Publish

1.   As noted by Barrett, Johnny's Mercedes does not contend that Henry Perez is not the actual registered agent for service.

2.   Johnny's Mercedes does not complain that it did not receive notice of the default judgment within thirty days after the judgment was signed.

just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Tex. R. Civ. P. 118.

Barrett responds that the citation is not flawed because the record does not reflect that the handwritten name changed or amended the citation in any way from what was originally served. Additionally, Barrett argues that the rules of civil procedure do not require that the citation be printed or typed in its entirety. See Tex. R. Civ. P. 99 (issuance and form of citation). Rule 99 requires that the name of the defendant and the person to be served appear as part of the citation. Id. Rule 99 does not require a citation to be typed or printed in its entirety. Although Johnny's Mercedes contends that the handwritten name was an addition, amendment or change to the citation, the record does not reflect that fact. There was strict compliance with Rule 99--the name of the defendant and the person to be served appeared as part of the citation. The first issue is overruled.

Service Upon Person Not Named as a Defendant in the Petition

In its second issue, Johnny's Mercedes contends that service of process was not effected on a named defendant. Johnny's Mercedes contends that there was no proof or assertion in the record that Johnny Perez was an officer of the corporation that would be an agent for service of process pursuant to the Texas Business Corporation Act, article 2.11(A). See Tex. Bus. Corp. Act Ann. art. 2.11(A) (West 1980).

The return of service states that the citation, with the petition and requests for production attached, was

[e]xecuted at 319 E. Ben White Blvd., Austin TX. 78704, within the County of Travis by delivering to JOHNNY'S MERCEDES, INC., by delivering to JOHNNY PEREZ, president, in person, a true copy of the above s