Alicia Moreno v. Liberty Mutual Fire Insurance Company ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00668-CV



Alicia Moreno, Appellant

v.

Liberty Mutual Fire Insurance Company, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. 93-15251, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

Alicia Moreno appeals an adverse default judgment by writ of error. After an administrative hearing, the Workers' Compensation Commission ("the Commission") awarded Moreno compensation for work-related injuries. Appellee Liberty Mutual Fire Insurance Company ("Liberty Mutual"), the employer's insurance carrier, filed suit in district court to obtain a trial de novo of the workers' compensation award, claiming that the Commission's award was unjust and excessive. When Moreno did not answer, the trial court rendered a default judgment decreeing that she take nothing from Liberty Mutual Fire Insurance Company and setting aside the award of the Workers' Compensation Commission. We will affirm the default judgment.

An appeal by writ of error is a direct attack on the judgment. McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex. 1965). In a direct attack, no presumptions in support of the judgment are made. Id. at 929. To appeal by writ of error: (1) the petition must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) the error must be apparent from the face of the record. General Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 943 (Tex. 1991). Only the fourth element, error apparent from the face of the record, is at issue in this case.

By point of error one, Moreno complains that the citation does not comply with Texas Rule of Civil Procedure 16, which provides that "the officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it." In this case, the return discloses the date but not the hour of receipt. An error in the day or hour of receipt is not grounds for reversal. Johnson v. Cole, 138 S.W.2d 910, 912 (Tex. Civ. App.--Austin 1940, writ ref'd) (not reversible error when return showed citation came into sheriff's hands on "February 13, 19120" rather than "February 13, 1920"); Miller v. Davis, 180 S.W. 1140, 1140-41 (Tex. Civ. App.--Fort Worth 1915, no writ) (not reversible error when return stated citation received on July 17 rather than June 17). Moreno does not allege any harm occasioned by the omission of the hour. We overrule point of error one.

By point of error two, Moreno complains that the return does not show that the server was authorized to serve process. The return was stamped with the authorized signature of Ed Richards, Sheriff, Williamson County. Below this stamp is the notation "By: K. Rose # 82." The stamped signature of the sheriff fulfills the requirement of Texas Rule of Civil Procedure 107 that the return be signed officially by the officer authorized to serve. Payne & Keller Co. v. Word, 732 S.W.2d 38, 40 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.); Houston Pipe Coating Co., Inc. v. Houston Freightways, Inc. 679 S.W.2d 42, 45 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e). The deputy who actually serves the citation acts as the sheriff's agent; when the sheriff signs, the deputy's signature is superfluous. Houston Pipe Coating Co., Inc,. 679 S.W.2d at 45; Cortimiglia v. Miller, 326 S.W.2d 278, 283-84 (Tex. Civ. App.--Houston 1959, no writ). Because the signature of the deputy who acted for the sheriff is not necessary, it is irrelevant that the deputy's signature does not state his or her official capacity. We overrule point of error two.

By point of error three, Moreno claims that the judgment is invalid because the address at which citation was served differs from the address on the face of the citation. The citation requested service on "Alicia (Gomez) Moreno" at 1204 Abbey in Round Rock. The return shows service of citation on "Alicia Gomez Moreno" ⁽¹⁾ at 207 Sunset in Round Rock. Moreno claims that service is void because the addresses differ. We disagree.

The return recites that process was served on the "within named" Alicia Gomez Moreno. Return of service is prima facie evidence of the facts recited therein. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). The process server executing the citation is not limited to serving the citation only at the address on the face of the citation. Garcia v. Gutierrez, 697 S.W.2d 758, 760 (Tex. App.--Corpus Christi 1985, no writ). When the return affirmatively states that it was served on the named defendant, the defendant may be served wherever she can be found in the state. ⁽²⁾ See id.; see also Jacksboro Nat'l Bank v. Signal Oil & Gas Co., 482 S.W.2d 339, 342 (Tex. Civ. App.--Tyler 1972, no writ) (citation must at least show service within state). We overrule point of error three.

By points of error four and five, Moreno complains that the judgment is invalid because the record does not show that Liberty Mutual filed a certificate of Moreno's last known address with the district clerk before the default judgment was signed or that the district clerk mailed a notice of default judgment to that address, as required by Texas Rule of Civil Procedure 239a. Moreno asks us to decline to follow a line of cases holding that failure to follow the filing and notice requirements of rule 239a should be challenged in a bill of review rather than in a writ of error proceeding. Long v. McDermott, 813 S.W.2d 622, 624 (Tex. App.--Houston [1st Dist.] 1991, no writ); Bloom v. Bloom, 767 S.W.2d 463, 468 (Tex. App.--San Antonio 1989, writ denied); Grayson Fire Extinguisher Co., Inc. v. Jackson, 566 S.W.2d 321, 322 (Tex. Civ. App.--Dallas 1978, writ ref'd n.r.e.).

Rule 239a provides that:

At or immediately prior to the time an interlocutory or final default judgment is rendered, the party taking same or his attorney shall certify to the clerk in writing the last known mailing address of the party against whom judgment is taken . . . . Immediately upon the signing of the judgment, the clerk shall mail a post card notice thereof to the party against whom the judgment was rendered at the address shown in the certificate, and note the fact of such mailing of the docket. . . . Failure to comply with the provision of this rule shall not affect the finality of the judgment.

Tex. R. Civ. P. 239a (emphasis added). The Grayson court emphasized the last sentence of the rule, apparently equating "finality" with "validity." Grayson, 566 S.W.2d at 322-23. We agree with other courts that the word "finality" is better understood to address the question whether failure to send postcard notice renders an otherwise final judgment interlocutory. Long, 813 S.W.2d at 626 (dissenting opinion); McDonough v. Williamson, 742 S.W.2d 737, 740 (Tex. App.--Houston [14th Dist.] 1987, no writ); see also Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974) (analyzing similar language in former Texas Rule of Civil Procedure 306d, since repealed). ⁽³⁾ However, the failure to comply with rule 239a does not automatically void the judgment. A default judgment obtained after proper service is valid and should be overturned only on a strong showing of inequity. Long, 813 S.W.2d at 624; see also Petro-Chemical Transp., Inc., 514 S.W.2d at 244-46. For this reason, arguments regarding lack of notice under rule 239a are appropriate in a bill of review proceeding, in which evidence can be received, rather than in a writ of error proceeding. ⁽⁴⁾  

Moreno also argues that her due process rights were violated by the lack of notice, citing Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80 (1988). We read Peralta, which overturned a Texas default judgment on due process grounds, as applying only when the defendant was not served with process. We cannot determine from the face of the record that Moreno was not served; however, Moreno may, in a bill of review proceeding, introduce evidence so proving. We overrule points of error four and five.

The trial court's judgment is affirmed.

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: June 21, 1995

Do Not Publish

1.   Moreno does not raise as an issue on this appeal the slight difference in the name on the citation and on the return.

2.   In Garcia v. Gutierrez, 697 S.W.2d 758, 760 (Tex. App.--Corpus Christi 1985, no writ), the court stated that the defendant could be served wherever he could be found in the county. Since Gutierrez was decided, Texas Rule of Civil Procedure 103 was amended to provide that a sheriff could serve process outside the county that he serves. Tex. R. Civ. P. 103.

3.   Former section 306d provided:

Immediately upon the signing of any final judgment of other appealable order, the clerk of the court shall mail a post-card notice thereof to each party to the suit as provided in Rule 21a. Failure to comply with the provisions of this rule shall not affect the finality of the judgment or order.

4.   The primary difference between a writ of error and a bill of review proceeding is the taking of extrinsic evidence, which is permitted in the latter but prohibited in the former. To prevail in an bill of review proceeding, the defendant must ordinarily prove (1) a meritorious defense to the cause of action, (2) that the defendant was prevented from making by plaintiff's fraud, and (3) that the failure to answer was unmixed with any negligence of his own. Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950); Vinklarek v. Vinklarek, 596 S.W.2d 197, 200 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ dism'd). The defendant is relieved of proving fraud on the plaintiff's part if he can prove that the clerk of the court failed to notify him of the default judgment because the plaintiff failed to certify defendant's address. Edgin v. Blasi, 706 S.W.2d 353, 354-55 (Tex. App.--Fort Worth 1986, no writ); Laredo v. Threadgill, 686 S.W.2d 734, 735 (Tex. App.--San Antonio 1985, no writ); see also Petro-Chemical Transp., 514 S.W.2d at 245 (analyzing the clerk's failure to give notice of judgment under former Texas Rule of Civil Procedure 306d). Additionally, the defendant is relieved of proving a meritorious defense when he was not served with process. Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 86 (1988). Finally, courts dispute whether, where official negligence is involved, the defendant must prove simply that his failure to answer was neither intentional nor the result of conscious indifference rather than that his failure was not negligent. See, e.g., Edgin, 706 S.W.2d at 354-55.