Teddy Parker and Nadia Parker v. Holly Leftwich ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00266-CV
TEDDY PARKER AND NADIA PARKER, APPELLANTS
V.
HOLLY LEFTWICH, APPELLEE
On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. DC-2021-CV-0342, Honorable Ann-Marie Carruth, Presiding
May 18, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellants Teddy Parker and Nadia Parker (Parker), appearing pro se, appeal the
district court’s default judgment taken jointly and severally against them and in favor of
Appellee Holly Leftwich.1 We reverse and remand.
1 The trial court’s judgment also names “Fresh Auto Repair” as a jointly and severally liable
defendant. This defendant did not, however, file a notice of appeal and we accordingly do not review the
judgment as to Fresh Auto Repair. See Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d
580, 584 (Tex. 2002) (holding party who failed to file notice of appeal waived challenge to judgment).
Analysis
Through a single issue on appeal, Parker argues, “The Court erred in finding that
the Court had jurisdiction over the Defendant/Appellants since the record is devoid of
proper proof of service.”
The skimpy record with which we were provided shows that in October 2021
Leftwich sued Parker and Fresh Auto Repair in contract and tort. The clerk’s record does
not contain the answer of any defendant. On December 15, 2021, Leftwich’s attorney
filed a document stating, “I certify under penalty of perjury under the laws of the state of
Texas that Plaintiff’s Original Petition was served on Defendants Teddy Parker and Nadia
Parker, via certified mail on the 15th day of November, 2021.”2 Attached as an exhibit
were two certified mail, return receipts; one bearing the name Teddy Parker and the other
the name Nadia Parker. Neither contained the addressee’s signature. TEX. R. CIV. P.
107(c) (“When the citation was served by . . . certified mail . . . the return by the officer or
authorized person must also contain the return receipt with the addressee’s signature.”).
The record does not contain a return of service on Parker by the officer or person
authorized to make service. TEX. R. CIV. P. 107(a),(b),(g). Rule 107 further provides, “No
default judgment shall be granted in any cause until proof of service as provided by this
rule . . . shall have been on file with the clerk of the court ten days, exclusive of the day
of filing and the day of judgment.” TEX. R. CIV. P. 107(h).
Whether service strictly complied with the statutes and rules is a question of law
that we review de novo. LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863, 866 (Tex. App.—
2 This filing may have been intended as an unsworn declaration. See TEX. CIV. PRAC. & REM. CODE
ANN. § 132.001 (providing requirements for an unsworn declaration).
2
Fort Worth 2013, no pet.). The Supreme Court of Texas has long required that strict
compliance with the rules for service of citation affirmatively appear on the record in order
for a default judgment to withstand direct attack. Primate Constr. v. Silver, 884 S.W.2d
151, 152 (Tex. 1994) (per curiam). “The return of service is not a trivial, formulaic
document. It has long been considered prima facie evidence of the facts recited therein.”
Id. Because Leftwich failed to comply with the service requirements, we have no proper
proof that Parker was served with citation and the plaintiff’s live petition.
Conclusion
Because proper service was not affirmatively shown by the record, we reverse the
judgment of the trial court as to Teddy Parker and Nadia Parker and remand the case for
further proceedings. TEX. R. APP. P. 43.2(d).
Lawrence M. Doss
Justice
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