Willie Leroy Deckard and Mary McKind v. Hester Long and Tara Williams ( 2006 )

                                                NO. 12-05-00191-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIE LEROY DECKARD           §          APPEAL FROM THE

AND MARY MCKIND,

APPELLANTS

V.        §          COUNTY COURT AT LAW

HESTER LONG AND

TARA WILLIAMS,

APPELLEES §          NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

            Willie Leroy Deckard and Mary McKind bring this restricted appeal from a default judgment entered against them in a suit for personal injury filed by Appellees, Hester Long and Tara Williams.  Deckard and McKind assert that the returns of service were defective and therefore neither established valid service on them nor conferred jurisdiction on the trial court.  We reverse and remand for further proceedings.

Background

            Appellees filed suit against Deckard and McKind on November 15, 2002, alleging personal injuries incurred in a car accident caused by Deckard as he drove a vehicle owned by McKind.  On March 3, 2003, the trial court entered an order authorizing service of process by Tina Burns or any of her agents.  A hearing was held on December 13, 2004, attended only by the plaintiffs.  The trial court signed a default judgment on December 15, 2004, awarding Long $20,000.00 and Williams $15,000.00.  Deckard and McKind filed a notice of restricted appeal contesting the default judgment.

Service of Citation

            In their sole issue, Appellants contend the returns of service are fatally flawed for a number of reasons and did not confer jurisdiction on the trial court.  Therefore, they argue, the trial court erred in entering the default judgment against them.

Applicable Law

            A restricted appeal is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment.  Tex. R. App. P. 30; TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318 (Tex. App.–Austin 2002, no pet.).  For a restricted appeal to be successful, a notice of restricted appeal must be filed within six months after judgment is signed, by a party to the lawsuit who did not participate in the hearing that resulted in the judgment complained of, who did not file a timely postjudgment motion or request for findings of fact and conclusions of law, and error must be apparent on the face of the record.  Tex. R. App. P. 26.1(c), 30; Boothe, 94 S.W.3d at 318.  The face of the record, for purposes of restricted appeal, consists of all papers on file in the appeal.  Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).

            Proper citation and return of service are crucial to establishing personal jurisdiction.  There are no presumptions in favor of a valid issuance, service, and return of citation in the face of an attack on a default judgment by restricted appeal.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).  If the return of service does not strictly comply, the service is invalid and in personam jurisdiction cannot be established. Boothe, 94 S.W.3d at 318-19.   Virtually any deviation will be sufficient to set aside the default judgment in a restricted appeal.  Id. at 319.  The return of service is considered prima facie evidence of the facts asserted therein. See Primate, 884 S.W.2d at 152.  Within the limitations indicated, a return should receive a fair, reasonable, and natural construction, and effect should be given to its plain intent and meaning. Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958, 959 (Tex. Civ. App.–Texarkana 1975, no writ).

Discussion

            The record shows the notice of restricted appeal was timely filed.  Deckard and McKind did not participate in the December 13, 2004 hearing, and they assert that they did not file a post-judgment motion or request for findings of fact and conclusions of law.  Appellees have not filed a brief or challenged the statements in Deckard’s and McKind’s brief relative to the facts in the record.  Accordingly, we accept as true the statements of fact in the brief. See Tex. R. App. P. 38.1(f).  This leaves for our review the question of whether error is apparent on the face of the record, that is, whether the record shows improper service of citation.

            The citations are typed forms with the return of service occupying the bottom quarter of the page.  The return contains blanks for details to be filled in by the process server.  At the bottom of the return it states:

To certify which witness my hand officially,

         Sheriff/Constable

_________________________  Process Server

_________________________  County, Texas

Both returns were signed by the same person, although the signature is illegible, on the top line.  There is no indication whether that individual was a “sheriff/constable” or a “process server.”  The line next to the word County was left blank.

            The Deckard return indicates that the citation was served on him on February 27, 2003.  The return indicates both the date the process server received the citation and the date he served it.  For each, the day and month are handwritten into preprinted blanks.  The year 2002 is typed in for both dates, but the typed year indicating the date he served the citation has been altered by hand to read 2003.

            The McKind return indicates that the citation was served on her on September 9, 2002.  Again, the day and month are handwritten while the year is typed. Because the citations were issued November 15, 2002, McKind’s citation could not have been served on September 9, 2002.  We can logically deduce that the individual serving the citation merely failed to change the previously typed “2” to a “3” to reflect the year 2003.  See Pratt v. Moore, 746 S.W.2d 486, 488 (Tex. App.–Dallas 1988, no writ) (Where face of return showed officer’s handwritten date was clearly erroneous and court could discern true date, error not fatal.).  Thus, the Deckard citation was served before the March 3, 2003 order authorizing Tina Burns or her agents to serve the citations while the McKind citation was served after that order was entered.  Neither return complies with the rules.

            Rule 103 of the Rules of Civil Procedure provides that a citation may be served by any sheriff or constable or by any person authorized by law or by written order of the court.  Tex. R. Civ. P. 103.  Rule 107 provides that the return shall be signed by the officer officially or by the authorized person and the return by an authorized person shall be verified.  Tex. R. Civ. P. 107.  Here, the signature on the returns is not identified as that of a sheriff, constable, or authorized process server.  Nothing in the record identifies the signature, and we do not indulge any presumptions.  Primate, 884 S.W.2d at 152.  We note that the illegible signature does not remotely resemble the name Tina Burns.  Further, she was not authorized to serve the citations at the time the Deckard citation was served.  Nor is either return verified as required in the case of service by authorized persons. See Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.–Texarkana 2004, no pet.).  Neither return shows strict compliance with the rules of procedure. The attempted service on both Deckard and McKind was invalid and of no effect.  The record does not show the trial court had in personam jurisdiction over Deckard and McKind.  The trial court erred in entering the default judgment against them.  However, by appealing this case, Deckard and McKind have submitted to the jurisdiction of the district court and no new service is necessary.  Tex. R. Civ. P. 123.  We sustain Deckard’s and McKind’s sole issue.

Disposition

            We reverse the default judgment and remand this cause to the trial court for further proceedings.

                                                                                                    DIANE DEVASTO   

                                                                                                                 Justice

Opinion delivered April 28, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)