JST Concrete, LLC v. Curt Gregory, Inc. D/B/A Gregory Electric ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00389-CV
JST CONCRETE, LLC, APPELLANT
V.
CURT GREGORY, INC., D/B/A GREGORY ELECTRIC, APPELLEE
On Appeal from the 237th District Court
Lubbock County, Texas
Trial Court No. DC-2023-CV-0271, Honorable J. Phillip Hays, Presiding
February 9, 2024
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
In this restricted appeal, Appellant, JST Concrete, LLC, challenges the district
court’s default judgment taken against it and in favor of Appellee Curt Gregory, Inc., d/b/a
Gregory Electric. We reverse the judgment and remand the case for further proceedings.1
1 In a restricted appeal, the notice of appeal must be filed within six months after the judgment was
signed. TEX. R. APP. P. 26.1(c). Here the judgment was signed April 27, 2023, and JST’s notice of appeal
was filed on October 26, 2023. Courts have interpreted Rule 26.1(c)’s period to mean six calendar months.
See Ex parte K.K., No. 02-17-00158-CV, 2018 Tex. App. LEXIS 1921, at *4 (Tex. App.—Fort Worth Mar.
15, 2018, no pet.) (mem. op.); TEX. GOV’T CODE ANN. § 312.011(7) (“‘Month’ means a calendar month.”).
Background
Gregory sued JST on a sworn account. Gregory’s original petition instructed that
JST
may be served with process by serving the registered agent of said
company, Grant N. Wilson at the following address . . . . Service of said
Defendant as described above can be effected by certified mail, return
receipt requested.
On March 3, 2023, the district clerk issued citation to JST, with Grant N. Wilson shown as
its registered agent.
JST filed no answer. On April 26, 2023, Gregory filed a motion for default
judgment. Attached to the motion was the “affidavit of service-certified mail” of Ryan
Crumley, a private process server. In the affidavit, Crumley averred he mailed citation
and plaintiff’s original petition to JST on March 7, 2023, and received a signed return
receipt on March 15, 2023. Attached to Crumley’s affidavit was a photocopy of a return
receipt addressed to “JST Concrete, LLC c/o Grant N. Wilson” and bearing the signature
of “Dakota” with the designation “agent.”
The next day, April 27, 2023, the trial court rendered judgment by default against
JST, awarding Gregory money damages and attorney’s fees. JST filed a notice of
restricted appeal on October 26, 2023.
Analysis
JST argues the default judgment should be reversed because the record fails to
demonstrate strict compliance with the Texas Rules of Civil Procedure concerning
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issuance, service, and return of citation.2 Gregory filed a notice stating “it no longer
wishe[d] to contest [JST’s] demand that the default judgment granted by the trial court be
set aside.” We agree with JST that the default judgment is infirm and should be set aside.
To prevail on a restricted appeal, the appellant must prove: (1) it filed notice of the
restricted appeal within six months after the judgment was signed; (2) it was a party to
the underlying lawsuit; (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 (restricted appeal); Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014)
(citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)); Cervantes v.
Travis Tiles Sales, Inc., No. 07-16-00011-CV, 2018 Tex. App. LEXIS 694, at *2 (Tex.
App.—Amarillo Jan. 24, 2018, no pet.) (mem. op.). The face of the record, for this
purpose, consists of all the papers on file in the appeal. See Norman Commc’ns v. Tex.
Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (writ of error review). The
record shows JST satisfied the first three requirements for prevailing on a restricted
appeal. We therefore determine whether error is apparent on the face of the record.3
Although JST was to be served via Wilson, its registered agent, the return receipt
shows that Wilson did not accept service; “Dakota” did. “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.” TEX. R. CIV. P. 107(c); see Gibson v.
2 See Primate Constr. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) (“For well over a
century, this court has 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.”).
3 We review this legal question de novo. LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863, 866 (Tex.
App.—Fort Worth 2013, no pet.).
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Zo-Vac, Inc., No. 04-03-00884-CV, 2005 Tex. App. LEXIS 362 (Tex. App.—San Antonio
Jan. 19, 2005, no pet.) (mem. op.) (finding error apparent on face of record in restricted
appeal of default judgment where record showed process was served by certified mail
sent to “‘Gregory J. Gibson dba Stony’s Trucking’” but return receipt was signed by “‘J.
Horner’” and record did not establish J. Horner was defendant’s agent for service of
process). We conclude the requirement of Rule 107(c) was not satisfied.
Moreover, the record also shows that proof of service was not on file for ten days
before the trial court signed the default judgment. 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); see Livanos v. Livanos, 333 S.W.3d
868, 875 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“The return or proof of service
must affirmatively reveal that it has been in the district clerk’s office for the required ten
days, and, if not, the default judgment rendered is void.”). Thus, Rule 107(h)’s
requirement was not satisfied.
Conclusion
We conclude the face of the record affirmatively establishes JST was not served
in strict compliance with the Texas Rules of Civil Procedure. The judgment of the trial
court is reversed and the case is remanded for further proceedings. See TEX. R. APP. P.
43.2(d).
Lawrence M. Doss
Justice
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