Business Staffing, Inc. v. Ricardo Gonzalez

Opinion filed December 9, 2010
In The
Eleventh Court of Appeals
__________
No. 11-09-00356-CV
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BUSINESS STAFFING, INC., Appellant
V.
RICARDO GONZALEZ, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-127,990-A
OPINION
Appellant, Business Staffing, Inc., appeals from a default judgment in favor of appellee,
Ricardo Gonzalez. In two issues, Business Staffing contends (1) that the trial court lacked
jurisdiction to enter the default judgment because the return of service was defective and (2) that
the trial court erred in denying its motion for new trial because it met all the requirements of the
Craddock1 test. We reverse and remand.
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Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939).
We note that this case is not a restricted appeal. In restricted appeals, “review is limited
to errors apparent on the face of the record.” Fidelity & Guar. Ins. Co. v. Drewery Constr. Co.,
186 S.W.3d 571, 573 (Tex. 2006). By contrast, when a party attacks a default judgment with a
motion for new trial, as Business Staffing did in this case, or a bill of review in the trial court, the
record is not so limited. In such cases, the parties may introduce evidence in the trial court “to
explain what happened.” Id. at 574; Marrot Commc’ns, Inc. v. Town & Country P’ship, 227
S.W.3d 372, 379 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). This evidentiary process
allows the parties to address and develop the Craddock or bill of review elements in the trial
court. Marrot, 227 S.W.3d at 379.
Strict compliance with the rules governing service of citation is mandatory if a default
judgment is to withstand an attack on appeal. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d
254, 256 (Tex. 2009); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).
Virtually any deviation from the rules regarding proper service of process will result in the
setting aside of a default judgment. Mansell v. Ins. Co. of the W., 203 S.W.3d 499, 501 (Tex.
App.—Houston [14th Dist.] 2006, no pet.). “[F]or a default judgment to be properly rendered,
the record must affirmatively show, at the time the default judgment is entered, either an
appearance by the defendant, proper service of citation on the defendant, or a written
memorandum of waiver.” Marrot, 227 S.W.3d at 378. Otherwise, the trial court does not have
in personam jurisdiction to enter a default judgment against the defendant. Id.
The facts in this case are similar to the facts in Lejeune. In this case, Gonzalez requested
the district clerk to serve Business Staffing by certified mail, return receipt requested. The clerk
issued the citation. However, the clerk failed to note in a return of citation or service the day and
hour that she received the citation for service on Business Staffing. Similarly, in Lejeune, the
defendant was served by certified mail, but the district clerk failed to note in the return of citation
the hour that the clerk’s office received the citation for service. Lejeune, 297 S.W.3d at 255-56.
In Lejeune, the Texas Supreme Court explained that Rule 16 of the Texas Rules of Civil
Procedure governs service of process in general. Id. at 256; see TEX. R. CIV. P. 16. Rule 16
provides that “[e]very officer or authorized person shall endorse on all process and precepts
coming to his hand the day and hour on which he received them.” Rule 105, which governs
service of citation, states that “[t]he officer or authorized person to whom process is delivered
shall endorse thereon the day and hour on which he received it, and shall execute and return the
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same without delay.” TEX. R. CIV. P. 105. In Lejeune, the court concluded that service of citation
did not strictly comply with Rules 16 and 105 because the return of citation lacked the required
notation showing the hour that the clerk received the citation for service. Therefore, the court
held that the default judgment against the defendant could not stand. Lejeune, 297 S.W.3d at
256. Likewise, in this case, because the district clerk did not endorse on a return the day and
hour that she received the citation for service, the default judgment against Business Staffing
cannot stand. Lejeune, 297 S.W.3d at 256; In re Z.J.W., 185 S.W.3d 905, 907-08 (Tex. App.—
Tyler 2006, no pet.).
Gonzalez submitted an affidavit from the district clerk in response to Business Staffing’s
motion for new trial. The affidavit provides further support for the conclusion that service of
Business Staffing did not comply with Rules 16 and 105. In the affidavit, the clerk did not
dispute the fact that she did not note on a return the day and hour that she received the citation
for service. The clerk stated that the citation “was issued and created by the Ector County
District Clerk’s Office on July 22, 2009” and “was received by the Ector County District Clerk’s
Office upon its issuance on July 22, 2009 as reflected on the Citation.” However, the clerk made
no mention of the hour that the clerk’s office received the citation for service. The record shows
that Business Staffing had not been properly served at the time the trial court entered the default
judgment. Lejeune, 297 S.W.3d at 256; Marrot, 227 S.W.3d at 379.
Business Staffing’s first issue is sustained. Based on our ruling on Business Staffing’s
first issue, we need not address its second issue. TEX. R. APP. P. 47.1.
The judgment of the trial court is reversed, and this cause is remanded for further
proceedings consistent with this opinion.
TERRY McCALL
JUSTICE
December 9, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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