Drc Distributors, Ltd., Drc Management Company, Inc., and David R. Carava v. Aaron A. Joiner ( 2006 )

                             NUMBER 13-04-038-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

___________________________________________________________________

DRC DISTRIBUTORS, LTD., DRC MANAGEMENT

COMPANY, INC., AND DAVID R. CARAVA,                 Appellants,

                                           v.

AARON A. JOINER,                                                   Appellee.

___________________________________________________________________

                  On appeal from the 357th District Court

                          of Cameron County, Texas.

___________________________________________________  _______________

                     MEMORANDUM OPINION^[1]

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                      Memorandum Opinion by Justice Rodriguez

This restricted appeal arises from a default judgment granting declaratory relief in favor of appellee, Aaron A. Joiner.  By three issues, appellants, DRC Distributors, Ltd., DRC Management Company, Inc., and David R. Carava, contend the following: (1) error is apparent on the face of the record because the returns of service fail to strictly comply with the Texas Rules of Civil Procedure; (2) the declaratory judgment is erroneous as a matter of law; and (3) the evidence apparent on the face of the record does not support the declaratory judgment.  We reverse and remand.

I.  Background

Appellee filed a petition for declaratory judgment seeking a declaration that (1) the mutual release entered into by appellee and appellants was void ab initio, and (2) appellant Carava was the alter ego of DRC Distributors, Ltd., and DRC Management Company, Inc.  Appellee attempted service of process on appellant Carava, individually, and as the registered agent for DRC Distributors, Ltd., and DRC Management Company, Inc., through the County Sheriff's Department in Santa Cruz, California.  Appellant Carava was personally served at his California residence on September 2, 2003, and the returns were filed in the 357th District Court of Cameron County, Texas, on September 18, 2003.  Because appellants failed to file an answer, appellee filed a motion for default judgment. Appellants did not appear at the default judgment hearing held on October 6, 2003, and the trial court granted a default declaratory judgment in favor of appellee.

I.  Restricted Appeal

A restricted appeal operates as a direct attack on a judgment.  Fazio v. Newman, 113 S.W.3d 747, 748 (Tex. App.BEastland 2003, pet. denied) (citing Lewis v. Ramirez, 49 S.W.3d 561, 564 (Tex. App.BCorpus Christi 2001, no pet.)).  To prevail on a restricted appeal, an appellant must establish the following:  (1) it filed notice of the restricted appeal within six months from the date the judgment was signed; (2) it was a party to the underlying suit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record.  Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

The record establishes that appellants (1) filed their notice of restricted appeal within six months from the date the default judgment was signed, (2) were named as defendants in the underlying lawsuit, (3) did not participate in the hearing that resulted in the default judgment against them, and (4) did not timely file any post-judgment motions or requests for findings of fact and conclusions of law.  See Tex. R. App. P. 30; Alexander, 134 S.W.3d at 848.  Based on these facts, appellants have satisfied the first three requirements essential to their restricted appeal.  Therefore, we need only determine whether error is apparent on the face of the record.^[2]  See Tex. R. App. P. 30; Alexander, 134 S.W.3d at 848.

II.  Service of Process

By their first issue, appellants contend that there is error on the face of the record because the returns of service fail to strictly comply with Texas law.  More specifically, appellants assert that the returns of service are fatally defective because they are not sworn to in compliance with rule 108 of the Texas Rules of Civil Procedure.  See Tex. R. Civ. P. 108.  We agree.

A.  The Law

The Texas Supreme Court has held that strict compliance with the rules for service of process must affirmatively appear on the face of the record in order for a default judgment to withstand direct attack.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam).  As a result, there is no presumption in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment.  Id.; Fazio, 113 S.W.3d at 748.

The responsibility of ensuring that service is properly accomplished rests with the party requesting service, not with the process server.  See Tex. R. Civ. P. 99(a); Primate Constr., Inc., 884 S.W.2d at 153.  Rule 108 of the Texas Rules of Civil Procedure governs the form of notice, type of service, and form of return for nonresidents and for those who are absent from the State.^[3]  See Tex. R. Civ. P. 108; Fazio, 113 S.W.3d at 748.  Rule 108 states in pertinent part:

Where the defendant is absent from the State, or is a nonresident of the State, the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant; and such notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106 hereof.  The return of service in such cases shall be endorsed on or attached to the original notice, and shall be in the form provided in Rule 107, and be signed and sworn to by the party making such service before some officer authorized by the laws of this State to take affidavits, under the hand and official seal of such officer.

Tex. R. Civ. P. 108.

B.  Analysis

Here, the return of service for each appellant identifies J. Verinsky, Santa Cruz County Sheriff, as the server of process. However, it is apparent from the face of the record that the returns were not sworn to by J. Verinsky.

While the rule for service of process on a resident present in the State does not require a sheriff who serves a citation to verify the return, see Tex. R. Civ. P. 107, rule 108 has a more stringent requirement for service on nonresidents and those residents absent from the State.  See id. at rule 108.  Rule 108 specifies that the server of process, regardless of whom that may be, must swear to the return before an officer authorized by the laws of Texas to take such affidavits under the hand and official seal of the officer. See id.; Fazio, 113 S.W.3d at 749.  Because the returns of service did not strictly comply with this requirement of rule 108, we conclude that there is error on the face of the record.  Therefore, we sustain appellants' first issue.

Because our disposition of appellants' first issue is dispositive of this appeal, we decline to address their second and third issues.  See Tex. R. App. P. 47.1.     

III.  Conclusion

Accordingly, we reverse the judgment of the trial court and remand the cause for a trial on the merits.                                                                                       

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 9th day of February, 2006.

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^[1]All issues of law presented by this case are well-settled, and the parties are familiar with the facts.  Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

^[2]The face of the record, for purposes of reviewing 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).

^[3]The Texas Supreme Court has held that rule 108 is a valid procedural alternative to service of process under the long-arm statute as long as the allegations confronting the defendants satisfy due process requirements.  Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 495-96 (Tex. 1988).  Appellants do not complain on appeal that due process requirements have not been met; therefore, for purposes of this appeal, we will assume, without determining, that the allegations confronting appellants have satisfied due process requirements.  See id.