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 2004-11

Kenneth Jeiorl Johnson v. Linda S. Johnson ( 2004 )


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    In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-03-537 CV

    ____________________



    KENNETH JEIORI JOHNSON, Appellant



    V.



    LINDA S. JOHNSON, Appellee



    On Appeal from the 163rd District Court

    Orange County, Texas

    Trial Cause No. B030901-D



    MEMORANDUM OPINION  

    Kenneth Jeiori Johnson appeals a default judgment in favor of Linda S. Johnson. In his pro se appeal, appellant claims he was not properly served, therefore the trial court did not have jurisdiction to render the default judgment. We reverse and remand.

    Appellant may raise defective service for the first time on appeal. See All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 725-26 (Tex. App.-Fort Worth 2003, no pet.) (citing Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex.1990)).

    Strict compliance with the rules for service of citation must be affirmatively shown in the record for a default judgment to withstand attack by restricted appeal, and there is no presumption of valid issuance, service, or return of citation. Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). Jurisdiction over a defendant must be established in the record by an affirmative showing of service of citation, independent of the recitals in the default judgment. See id.; Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App.--Houston [1st Dist.] 1999, no pet.). Failure to comply with the Rules of Civil Procedure renders the attempted service of process invalid. See Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985).



    Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273-74 (Tex. App.--Houston [1st Dist.] 2001, no pet.).

    The trial court stated at the hearing that he was taking "judicial notice of the contents of the Court's file including a return of citation that is on file and has been for the required period of time." The return of citation provides that service was by certified mail. The record contains a copy of the return receipt. It is addressed to "Kenneth Jeiorl Johnson" but the signature and name of receiver are illegible. Under signature appears "C V" and next to "V" a line. Under "Received by" is what may be an "s" followed by "Van" and a line. None of the characters, except "n", are letters in Johnson's name. It therefore appears someone else signed the receipt.

    A return in the manner provided by Tex. R. Civ. P. 107 must contain the signature of the authorized person or officer executing the return, state when the citation was served, state the manner of service, and contain the return receipt with the addressee's signature when served by registered or certified mail; and, if the citation was not served, there also must be a showing of due diligence.

    Fazio v. Newman, 113 S.W.3d 747, 749 (Tex. App.--Eastland 2003, pet. denied) (emphasis added). The record does not show the return receipt was signed by Johnson, the addressee. See Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex. App.--Amarillo 1992, no pet.). Furthermore, "substituted service is not authorized under Rule 106(b) without an affidavit that meets the requirements of the rule demonstrating the necessity for other than personal service." Lewis v. Ramirez, 49 S.W.3d 561, 564 (Tex. App.--Corpus Christi 2001, no pet.) (citing Wilson, 800 S.W.2d at 836). See also State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d 298, 298-99 (Tex. 1993). The record before this court contains no affidavit. See Tex. R. Civ. P. 106(b); Coronado v. Norman, 111 S.W.3d 838, 841 (Tex. App.--Eastland 2003, pet. denied).

    Consequently, the service of process is fatally defective and cannot support the judgment. "For well over a century the rule has been firmly established in this state that a default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements. See, e.g., Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex.1985) (per curiam); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Sloan v. Batte, 46 Tex. 215, 216 (1876)." Wilson, 800 S.W.2d at 836.

    We note the default judgment declares appellant was "duly and properly cited" and that "[a]ll persons entitled to citation were properly cited." This does not cure the defect in question since personal jurisdiction over a defendant must appear affirmatively by a showing of due service and return of process, independent of recitations in a judgment taken by default. See Union Pacific Corp. v. Legg, 49 S.W.3d 72, 78-79 (Tex. App.--Austin 2001, no pet.).

    The appellate record does not demonstrate compliance with the rules governing the issuance, service, and return of citation. Consequently, the trial court failed to obtain in personam jurisdiction over appellant and the default judgment is void. Pino v. Perez, 52 S.W.3d 357, 360 (Tex. App.--Corpus Christi 2001, no pet.)(citing Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex.1973)). Appellant's first issue is granted, the default judgment is reversed, and the cause is remanded for trial.

    PER CURIAM



    Submitted on September 30, 2004

    Opinion Delivered November 18, 2004



    Before McKeithen, C.J., Burgess and Gaultney, JJ.