Houston Welding Supply Co, Inc. v. James "L.C." Johnson ( 2004 )

Reversed and Remanded and Memorandum Majority and Dissenting Opinions filed November 30, 2004

Reversed and Remanded and Memorandum Majority and Dissenting Opinions filed November 30, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00205-CV

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HOUSTON WELDING SUPPLY CO., INC., Appellant

V.

JAMES “L.C.” JOHNSON, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 03-31661

M E M O R A N D U M   M A J O R I T Y    O P I N I O N

Houston Welding Supply Company appeals from a default judgment favoring James Johnson in his premises liability suit against it.  In this restricted appeal, Houston Welding contends (1) the record fails to show strict compliance with the rules for service of process, and (2) the evidence was legally and factually insufficient to sustain the finding of causation or the amount of damages awarded.  Because the record does not affirmatively show strict compliance with the rules for service, we reverse.

Discussion

To be successful, a restricted appeal must (1) be brought within six months after the trial court signed the judgment, (2) by a party to the suit, (3) who did not participate in the actual trial, and (4) the error complained of must be apparent from the face of the record.  Tex. R. App. P. 26.1(c), 30; Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).  Houston Welding filed its notice of appeal exactly six months after the court signed the judgment, and it is undisputed that Houston Welding was named as a defendant in Johnson’s petition and that it did not participate in the default judgment hearing.  Thus, the only issue is whether there is error on the face of the record.

Houston Welding argues that the return in the present case was faulty in two regards: (1) it ambiguously stated that two different methods were used to effect service, and (2) it failed to state that the petition was served with the citation. Because we agree with the latter contention, we need not address the former.

Texas law requires that, in order for a default judgment to withstand a direct attack by restricted appeal, strict compliance with the rules for service of process must affirmatively appear in the record.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). The party requesting service of process has the responsibility to ensure that service of the citation and a copy of the petition is properly accomplished.  Tex. R. Civ. P. 99(a); Primate Constr., 884 S.W.2d at 153.  If the facts as recited in the process server’s return are incorrect and do not show proper service, the person requesting service must amend the return, under the permissive rules of amendment, prior to judgment.  See Tex. R. Civ. P. 118;  Primate Constr., 884 S.W.2d at 153.

Houston Welding specifically contends that the server’s return failed to indicate that a copy of the petition was served.  Indeed, the return simply has a blank space after the pre-printed words “executed . . . by delivering to . . . Registered Agent . . . a true copy of this notice, together with accompanying copy of”.

Johnson first argues that the return is valid because the citation states, “Attached is a copy of PLAINTIFF’S ORIGINAL PETITION.”  However, in regards to service of process, citations and returns are not created equally.  A citation is a form providing certain information to a person or entity that has been sued.  Tex. R. Civ. P. 99(b).  It is one of the items that must be served; thus, it is prepared before service.  See Tex. R. Civ. P. 99(a).  A return is essentially the serving officer’s report of what he or she did, and it constitutes prima facie evidence of the facts recounted therein.  Tex. R. Civ. P. 107; Primate Constr., 884 S.W.2d at 152.  A citation cannot constitute proof of its own service, much less service of a document that may or may not have been attached at the time of service.  See Primate Constr., 884 S.W.2d at 153 (rejecting argument that service was proper because citation showed proper document was attached, stating “the only proof that Primate Construction was served with anything at all is [the] return”); Shamrock Oil Co. v. Gulf Coast Natural Gas, Inc., 68 S.W.3d 737, 739 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (rejecting argument that citation proved proper document was attached, stating “the officer’s return must show service of the correct pleading”).  Thus, the fact that the citation in the case before us stated that the petition was attached to it cannot cure the fact that the return does not demonstrate that a copy of the petition was served.

Johnson next argues that the following line on the return proves the petition was served: “Serving 1 copy Y $50.00.”  However, this entry clearly begs the question: a copy of what?  The cited entry does not affirmatively show service of the petition.  See Shamrock Oil, 68 S.W.3d at 738-39 (rejecting argument that return was sufficient to show proper service when it stated that the citation was served with “the accompanying copy(ies) of the _____ Petition attached thereto,” because it failed to show service of the correct pleading).^[1]

Lastly, Johnson suggests that Houston Welding had actual knowledge of the lawsuit. This assertion is based on Johnson’s own testimony, at the hearing on the motion for default judgment, wherein he stated that he went to Houston Welding after the lawsuit was filed and was told by an employee that the company would no longer do business with Johnson because he had sued it.  However, it is well established in Texas that, absent proper service (or waiver thereof), actual notice of a lawsuit is not sufficient to confer jurisdiction on a court to render default judgment.  E.g., Wilson v. Dunn, 800 S.W.2d 833, 836-37 (Tex. 1990) (citing, among other cases, Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S.W. 863, 865 (1889)).  Therefore, even if Johnson’s testimony was considered proof of Houston Welding’s actual knowledge, it would not have conferred jurisdiction over Houston Welding so as to support a default judgment.

In conclusion, the face of the record does not affirmatively show strict compliance with the rules of service of process; thus, the default judgment against Houston Welding must be reversed.  Houston’s Welding’s first issued is granted.  Because of our disposition of this issue, we need not address Houston’s Welding’s second issue.

The trial court’s judgment is reversed, and the case is remanded for further proceedings in accordance with this opinion.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Majority and Dissenting Opinions filed November 30, 2004.

Panel consists of Chief Justice Hedges and Justices Hudson and Seymore. (Seymore, J. dissenting).

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^[1]  Additionally, Johnson points to the “Civil Process Request” and the “Motion for Default Judgment” as demonstrating proof of service of the petition.  However, these two documents prepared by Johnson’s attorney are proof of nothing in regard to how service was actually executed.  Cf. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (“pleadings are not competent evidence, even if sworn or verified”).