Ikon Office Solutions, Inc. v. Integrity Communcations, Ltd. ( 2006 )

                                         NUMBER 13-04-00243-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI B EDINBURG

IKON OFFICE SOLUTIONS, INC.,                                                    Appellant,

                                                             v.

INTEGRITY COMMUNICATIONS, LTD.,                                           Appellee.

                       On appeal from the County Court at Law No. 4

                                        of Nueces County, Texas.

                              MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                          Memorandum Opinion by Justice Hinojosa

Appellant, Ikon Office Solutions, Inc., brings this restricted appeal asserting the trial court erred in rendering a default judgment in favor of appellee, Integrity Communications, Ltd.  In eight issues, Ikon contends (1) there were defects in the service of process, and (2) the evidence presented by Integrity was legally insufficient to support a default judgment.  We reverse and remand.

                                                   A.  Factual Background

On December 2, 2003, Integrity filed suit against Ikon and co-defendant, IOS Capital, L.L.C., alleging breach of contract, deceptive trade practices, fraud, and related claims stemming from Integrity=s purchase of a color copier/printer from Ikon in November 2001.  Integrity filed a return of service for both defendants on January 7, 2003.  Neither defendant filed an answer, and on January 19, 2004, the trial court signed a default judgment in favor of Integrity. 

On March 12, 2004, IOS filed a motion for new trial.  IOS asserted, and the trial court agreed, that the motion for new trial was timely because neither IOS nor its attorney received notice of the default judgment until more than twenty days after the judgment was signed.  See Tex. R. Civ. P. 306a(4) (stating that if a party affected by a judgment has not received notice of that judgment within twenty days of its signing, the time for motions runs from the day the party or its attorney received notice or acquired actual knowledge of the judgment); Tex. R. App. P. 4.2(a)(1); see also Tex. R. Civ. P. 329b(a) (stating that motions for new trial generally must be filed within thirty days after a judgment is signed). On April 2, 2004, the trial court granted IOS=s motion for new trial and severed Integrity=s claims against IOS into a new case.  On April 29, 2004, Ikon filed a notice of restricted appeal.

B.  Jurisdiction

We first address an argument asserted by Integrity, both in their brief and in a motion to dismiss, that Ikon failed to properly invoke this Court=s jurisdiction.  Integrity argues that Ikon is not entitled to review by way of a restricted appeal because (1) Ikon received late notice of the default judgment, thus extending the timetable for filing a regular notice of appeal, and the notice of restricted appeal was filed within the time that a regular appeal was still available to Ikon; and (2) the trial court order granting IOS=s motion for new trial constituted an order modifying the judgment, thus extending the plenary power of the trial court.  Substantively, both arguments assert that because Ikon could have timely filed a regular notice of appeal, but instead filed a notice of restricted appeal, it has failed to properly invoke the jurisdiction of this Court. We disagree.

Texas Rule of Civil Procedure 30 provides that a party who did not file a notice of appeal within the time permitted by rule 26.1(a) may file a notice of restricted appeal under the time provided by rule 26.1(c).  See Tex. R. Civ. P. 30 (emphasis ours).  Rule 30 does not state that a party may only file a restricted appeal if they could not have filed a notice of appeal, nor does it specify that a restricted appeal may only be filed after the time for a regular appeal has lapsed.  See id.; see also Tex. R. Civ. P. 26.1(c) (Ain a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed.@).  We will not impose additional restrictions on the right to appeal that are not specifically set out in the Texas Rules of Civil Procedure or Texas Rules of Appellate Procedure.

The record shows that Ikon did not file a regular notice of appeal within the time limits imposed by rule 26.1(a), and that its notice of restricted appeal was filed within the time limit imposed by rule 26.1(c).  See Tex. R. Civ. P. 26.1(a), (c).  Therefore, interpreting the rules liberally in favor of the right to appeal, we conclude that Ikon=s notice of restricted appeal properly invoked the jurisdiction of this Court.  See Verburgt v. Dorner, 959 S.W.2d 615, 616‑17 (Tex. 1997) (instructing appellate courts to Aconstrue the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.@); see also Padilla v. LaFrance, 907 S.W.2d 454, 458 (Tex. 1995) (noting that the premature filing rules Aprevent the procedural trap that otherwise could occur if a party prematurely filed a motion that was intended to assail the final judgment@). Accordingly, we deny Integrity=s motion to dismiss, and address Ikon=s restricted appeal.  

C.  Restricted Appeal

We first address whether Ikon has established the elements necessary to maintain its restricted appeal.  To prevail on a restricted appeal, Ikon must establish that:  (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of, did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and did not file a notice of appeal within the time permitted by rule 26.1(a); and (4) error is apparent on the face of the record.  Tex. R. App. P. 26.1(a), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).  The face of the record, for purposes of a restricted appeal, consists of all the papers on file in the appeal, including the statement of facts.  Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991).

In this case, appellant has met the first three elements.  The only element remaining is whether error is apparent on the face of the record.  Ikon asserts that error is apparent based on defects in the service of process and the sufficiency of the evidence presented to the trial court.

A default judgment cannot withstand a direct attack by a defendant who shows that it was not served in strict compliance with the Texas Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Medeles v. Nunez, 923 S.W.2d 659, 662 (Tex. App.BHouston [1st Dist.] 1996, writ denied).  The record must reflect 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 Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 263 (Tex. App.B Texarkana 1992, writ dism=d). If strict compliance is not affirmatively shown, the service of process is invalid and has no effect.  Uvalde Country Club v. Martin Linen Supply, 690 S.W.2d 884, 885 (Tex. 1985); Harmon Truck Lines, 836 S.W.2d at 263.  The Medeles court interpreted strict compliance to mean Aliteral compliance@ with the rules governing issuance, service, and return of citation.  Medeles, 923 S.W.2d at 662.

When a default judgment is attacked by way of restricted appeal we make no presumptions in favor of valid issuance, service, and return of citation.  See Uvalde Country Club, 690 S.W.2d at 885; G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 816 (Tex. App.BHouston [1st Dist.] 1996, no writ); McGraw‑Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.BHouston [1st Dist.] 1992, writ denied).  Jurisdiction over the defendant must affirmatively appear by a showing of due service of citation, independent of the recitals in the default judgment.  Faggett v. Hargrove, 921 S.W.2d 274, 276 (Tex. App.BHouston [1st Dist.] 1995, no writ); Mass. Newton Buying Corp. v. Huber, 788 S.W.2d 100, 102 (Tex. App.BHouston [14th Dist.] 1990, no writ).

In its first issue, Ikon contends that service by certified mail was not conducted by a person authorized to perform service.  We agree.

Texas Rule of Civil Procedure 106 allows Aany person authorized by Rule 103@ to serve the citation by Amailing 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.  Rule 103 provides that AService by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending.@  Tex. R. Civ. P. 103.  Here, service of citation was made via certified mail by Scott E. Landreth, attorney for Integrity, and not the clerk of the court in which the case was pending. We find no evidence in the record showing that Integrity obtained a written order authorizing Landreth to attempt service by certified mail.  See Tex. R. Civ. P. 103 (providing additionally for service by Aany person authorized by law or written order of the court who is not less than eighteen years of age@).

Because the citation in this case was not served on Ikon in strict compliance with the rules of civil procedure, we hold that service of process was invalid and of no effect.  Because the error is apparent on the face of the record, we sustain Ikon=s first issue.  In view of the dispositive nature of this issue, we conclude it is not necessary to address Ikon=s remaining issues.  See Tex. R. App. P. 47.1.

The default judgment against Ikon is reversed, and the case is remanded to the trial court for further proceedings.  It is unnecessary for new service of process to issue.  Ikon is before the court for all purposes.  See Tex. R. Civ. P. 123.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 15^th day of June, 2006.