Allen Heggen and Paula Heggen v. Graybar Electric Company, Inc. ( 2007 )

Affirmed and Memorandum Opinion filed January 9, 2007

Affirmed and Memorandum Opinion filed January 9, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00058-CV

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ALLEN HEGGEN AND PAULA HEGGEN, Appellants

V.

GRAYBAR ELECTRIC COMPANY, INC., Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2004-03347

M E M O R A N D U M   O P I N I O N

Appellants Allen Heggen and Paula Heggen (the AHeggens@) appeal from the trial court=s entry of default judgment in favor of Graybar Electric Company, Inc. (AGraybar@).  In one issue, the Heggens seek to set aside the default judgment because service was defective.  We affirm.  

I.  Facts and Procedural Background

Graybar filed an original petition against several defendants on January 23, 2004 seeking to collect on a materialman=s lien.  Graybar added the Heggens as defendants on April 18, 2005 in a second amended original petition.  The trial court issued citations for service of the second amended petition for both Allen and Paula Heggen, which read, AAttached is a copy of SECOND AMENDED ORIGINAL PETITION . . . . This instrument was filed on the 18th day of April, 2005 in the above cited cause number and court.  The instrument attached describes the claim against you.@  The returns for the citations recite that a deputy of the Hidalgo County Sheriff executed the citations on May 11, 2005 by delivering both Allen and Paula Heggen Aa true copy of this Citation together with the accompanying [blank] copy(ies) of the Petition attached thereto.@  Although the Heggens admit that Aservice was made@ on them in person by the deputy on May 11, 2005,  neither of them answered the second amended petition.  As a result, Graybar moved for a default judgment, which the trial court granted on July 25, 2005.  The Heggens thereafter timely filed a restricted appeal.

The Heggens now urge us on appeal to set aside the default judgment because the return of citation did not refer specifically to the ASecond Amended Petition,@ which they claim rendered service defective.

II.  Standard of Review

A restricted appeal (1) 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 hearing that resulted in the judgment complained of, and (4) the error must be apparent from the face of the record.  See Tex. R. App. P. 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (per curiam). Review by restricted appeal entitles the appellant to the same scope of review as an ordinary appeal, except that the error must appear on the face of the record, which for purposes of a restricted appeal consists of all the documents on file with the trial court when it rendered judgment.  Norman Commc=n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).  Therefore, we may not consider, as part of the record, evidence or documents that were not before the trial court when it rendered judgment.  Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991).  It is undisputed that the Heggens complied with the first three elements of a restricted appeal. Accordingly, we review only whether error was apparent from the face of the record.^[1]

III.  Analysis

The Heggens contend that, because the return referenced the APetition,@ rather than the ASecond Amended Original Petition,@ and thus failed to reference the pleading that named them as defendants, we must set aside the default judgment for defective service.  Texas Rule of Civil Procedure 106(a)(1) states that an authorized person shall serve a citation by Adelivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto.@  Texas Rule of Civil Procedure 107 provides that for personal service of a citation, the return of citation shall (1) be endorsed or attached to the citation, (2) state when the citation was served, (3) state the manner of service, and (4) be signed by the officer officially or by the authorized person.  Texas law has long required that, for a default judgment to withstand direct attack, strict compliance with the rules of service of citation affirmatively appear on the record.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).  The return of citation constitutes prima facie evidence of the facts asserted therein.  Id.  However, even under a strict compliance standard, we afford returns a fair, reasonable, and natural construction and give effect to their plain intent and meaning.  Brown‑McKee, Inc. v. J.F. Bryan & Assoc., 522 S.W.2d 958, 959 (Tex. Civ. App.CTexarkana 1975, no writ).  Moreover, A[t]he return in its entirety, together with the citation to which it refers, must be considered in determining its sufficiency.@  Id.; see also Tex. Nat=l Bank v. Greystone Publ=g Co., No. B14‑86‑788‑CV, 1987 WL 13548, at *2 (Tex. App.CHouston [14th Dist.] July 9, 1987, no writ) (not designated for publication) (reviewing the citation and return to determine whether proper agent had been served). 

The Heggens= contention that the return was defective fails for several reasons.  First, the return meets each of the requirements outlined in Rule 107, and the Heggens do not contend otherwise. Second, courts have upheld the sufficiency of returns under similar facts.  In Ortiz v. Avante Villa at Corpus Christi, the court held a return strictly complied with Rule 107 where it identified the document served as the APetition attached@ to the citation, and the citation identified the document served as the APLAINTIFFS= ORIGINAL PETITION,@ which was the exact title of the petition.  926 S.W.2d 608, 612 (Tex. App.CCorpus Christi 1996, writ denied). Similarly, in Herbert v. Greater Gulf Coast Enterprises, Inc., the court held a return strictly complied with Rule 107 where it recited that a copy of the AComplaint@ had been served, but the plaintiff had titled the pleading a Apetition,@ because AComplaint@ is synonymous with Apetition.@  915 S.W.2d 866, 871 (Tex. App.CHouston [1st Dist.] 1995, no writ).  In both Ortiz and Herbert, the decisive fact was that the language in the citation and return varied only slightly, which did not make it unclear whether the appropriate documents were served and thus did not render service defective.  Cf. Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex. App.CDallas 2003, no pet.) (holding that omission of initial AD.@ from registered agent=s name in return did not invalidate service); Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.CHouston [14th Dist.] 1987, writ ref=d n.r.e.) (finding strict compliance with Rule 107 and no uncertainty that proper defendant was served where return described agent as APhilipee Petitfreere@ and petition and citation described agent as APhilippe Petitfrere@).  Similar to Ortiz, the citation before us describes the document served as the ASecond Amended Original Petition,@ and the return describes such document as the APetition attached@ to the copy of the citation. (emphasis added).  Reading the return under its plain meaning and in conjunction with the citation reveals that the deputy served both appellants with a copy of the petition attached to the citation, which clearly stated was the ASecond Amended Original Petition.@  As such, we cannot say that the slight language variation between the return and citation created uncertainty to a degree rendering service defective.        

Finally, Primate, on which the Heggens solely rely, is distinguishable.  See Primate, 884 S.W.2d at 152.  There, as here, the appellants were named as defendants only in a second amended original petition.  Id.  However, though the citation described the pleading served as the APlaintiffs= Second Amended Petition,@ the return described such pleading as the APlaintiffs= Original Petition.@  Id.  The Supreme Court accordingly found an error in service on the face of the record because Athe only proof that Primate . . . was served with anything at all is a return which recites service of a pleading in which it had not been sued.@  Id. at 153 (emphasis added).  Thus, unlike the present case, the return in Primate expressly and directly conflicted with the citation.  Moreover, here, the return does not recite service of a pleading in which the Heggens were not sued (APetition attached@ to the citation).  Indeed, the Primate return=s Adeviation from absolute accuracy was much more pronounced@ than the return here.  See Herbert, 915 S.W.2d at 871. 

Therefore, because we find the return strictly complied with Rule 107 and because we find no error on the face of the record compelling a reversal of the default judgment, we overrule the Heggens= sole issue.

The judgment of the trial court is affirmed. 

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed January 9, 2007.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

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^[1]  As a threshold matter, Graybar contends the Heggens erroneously brought a Adirect appeal@ rather than an application for writ of error.  The record indicates the Heggens timely filed a restricted appeal under Texas Rule of Appellate Procedure 30. Restricted appeals under Rule 30 replaced writs of error under former Texas Rule of Appellate Procedure 45.  See Tex. R. App. P. 30 & cmt.; Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 309 n.3 (Tex. App.CHouston [1st Dist.] 2001, pet. denied).  Therefore, Graybar=s contention lacks merit.