a & a Express v. Triumph Transportation, LLC D/B/A Container Services and Gene Hill, Individually

NUMBER 13-09-00172-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
A & A EXPRESS, Appellant,
v.
TRIUMPH TRANSPORTATION, LLC D/B/A
CONTAINER SERVICES AND GENE HILL,
INDIVIDUALLY, Appellee.
On appeal from the 216th District Court
of Kerr County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Chief Justice Valdez
In this restricted appeal, appellant, A & A Express, challenges the trial court’s no-
answer default judgment in favor of appellees, Triumph Transportation, LLC d/b/a
Container Services and Gene Hill, individually (collectively “Triumph”). By three issues, A
& A Express argues that: (1) the trial court erroneously granted default judgment in favor
of Triumph because Triumph failed to properly serve A & A Express; (2) the evidence
supporting the damages awarded in the default judgment is legally and factually
insufficient; and (3) the trial court erred in calculating pre- and post-judgment interest. We
reverse the judgment of the trial court and remand for further proceedings consistent with
this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 2006, a tractor-trailer owned by A & A Express and driven by
Andrew Salvatore Randazzo collided with a tractor-trailer owned by Triumph and driven by
Donald Wayne Hill.1 On July 7, 2008, Triumph brought suit against A & A Express and
Randazzo for damages resulting from the collision.
Triumph mailed a copy of a citation for service to A & A Express via certified mail
on July 8, 2008. See TEX . R. CIV. P. 106(a)(2). The citation was sent to “A & A Express,
Herender Handal, 212247 Morningdew Ct., Turlock, CA 95382,” which appears to be the
wrong address.2 It was delivered on July 14, 2008, and was signed for by “B.K. Hundal”
and “B.H. Hundal.”3
A & A Express did not file an answer in the trial court. On December 16, 2008, the
trial court signed an order severing Triumph’s claims against A & A Express from the
1
Neither Randazzo nor Donald W ayne Hill are parties to this appeal.
2
Trium ph’s original petition stated that A & A Express could be served with process by serving
“Herender Handal, 2147 M orningdew Court, Turlock, California 95382, by certified m ail, return receipt
requested.”
3
In fact, on the signature line of the return receipt, the recipient signed his nam e as “B.K. Hundal”;
however, on the portion of the receipt requiring the recipient to print their nam e, the recipient printed his nam e
as “B.H. Handal.”
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causes of action against Randazzo and entered a default judgment against A & A Express.
The default judgment awarded $82,950 and $15,150.81 in actual damages to Triumph and
Gene Hill, respectively. In addition, the court awarded pre- and post-judgment interest and
all court costs to appellees.
II. RESTRICTED APPEAL
To attack a trial court’s judgment by restricted appeal, A & A Express must show
that: (1) a notice of appeal was filed within six months of the date of when the complained-
of judgment was signed; (2) A & A Express was a party to the suit who did not participate
in the hearing that resulted in the judgment or order; (3) A & A Express did not timely file
a post-judgment motion, request findings of fact and conclusions of law, or file a notice of
appeal within the time permitted under Texas Rule of Appellate Procedure 26.1(a)4; and
(4) the complained-of error is apparent on the face of the record. See TEX . R. APP. P.
26.1(c), 30; see also Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004);
Tex. Dep’t of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus Christi
2007, no pet.).
A & A Express, a named party to the lawsuit, filed its notice of appeal within six
months of the date that the trial court signed the order granting Triumph’s default judgment.
Further, the record does not reflect that A & A Express filed any post-judgment motions,
requests for findings of fact and conclusions of law, or a timely notice of appeal within the
context of rule 26.1(a). See TEX . R. APP. P. 26.1(a). Finally, as addressed below, the
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Rule 26.1(a) of the Texas Rules of Appellate Procedure provides that a notice of appeal m ust be
filed within ninety days after the judgm ent has been signed if any party tim ely filed: (1) a m otion for a new trial;
(2) a m otion to m odify the judgm ent; (3) a m otion to reinstate under Texas Rule of Civil Procedure 165(a); or
(4) a request for findings of fact and conclusions of law if such a request was required by the rules of civil
procedure or could be properly considered by the appellate court. See T EX . R. A PP . P. 26.1 (a). Here, A & A
Express did not file any m otions or m ake any request outlined in rule 26.1(a). See id.
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complained-of error, a defect in the service of citation, is apparent from the face of the
record. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)
(per curiam) (stating that, for purposes of restricted appeals, the face of the record consists
of all the papers on file in the appeal). Thus, A & A Express has satisfied each of the
elements for obtaining relief through this restricted appeal.
III. THE SERVICE DEFECT
In its first issue, A & A Express argues that the trial court erred in granting default
judgment because the record does not demonstrate that A & A Express was properly
served. Specifically, A & A Express asserts that the record does not reflect that it could
lawfully be served through Herender Handal. In addition, A & A Express argues that the
record does not demonstrate that Handal was actually served, as evidenced by the return
receipt signed by an unknown “B.K. Hundal” or “B.H. Hundal.”
A. Applicable Law
“Strict compliance with the rules for service of citation [must] affirmatively appear on
the record in order for a default judgment to withstand direct attack.” Primate Constr., Inc.
v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Failure to comply with the rules governing
service of citation constitutes error on the face of the record. Id. at 153 (“Proper service
not being affirmatively shown, there is error on the face of the record, and the court of
appeals erred in holding otherwise.”); see Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d
254, 256 (Tex. 2009) (per curiam). “There are no presumptions in favor of valid issuance,
service, and return of citation in the face of a writ of error attack on a default judgment.”
Silver, 884 S.W.2d at 152; see Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007) (per
curiam); see also Maib v. Maib, No. 13-08-00413-CV, 2009 Tex. App. LEXIS 4135, at *4
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(Tex. App.–Corpus Christi June 11, 2009, no pet.) (mem. op.) (citing Wachovia Bank of
Del., Nat’l Ass’n v. Gilliam, 215 S.W.3d 848, 850 (Tex. 2007) (per curiam)). Rather, when
a default judgment is entered, we will “rigidly enforce the rules governing service,” because
“the only ground supporting the judgment is that the defendant has failed to
respond to the action in conformity with the applicable procedure for doing
so. If the defendant can then show that the person commencing the action
was guilty of comparable nonconformity with procedure rules, under a
principle of equality the derelictions offset each other . . . .”
Festina, 226 S.W.3d at 408 (quoting Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990)).
“Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure
renders the attempted service of process invalid and of no effect.” Uvalde Country Club
v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985).
Under rule 107, when a citation is served by registered or certified mail as
authorized under rule 106, the return by the officer or authorized person must contain the
return receipt with the addressee’s signature. See TEX . R. CIV. P. 106, 107; see also Sw.
Sec. Serv., Inc. v. Gamboa, 172 S.W.3d 90, 93 (Tex. App.–El Paso 2005, no pet.)
(concluding that service directed to a registered agent named “Jesus Morales” was invalid
when signed for by “Guillermo Montes”); All Commercial Floors, Inc., 97 S.W.3d at 727
(holding that a return receipt signed by “Mark,” with an illegible last name, was invalid,
given that Kelly Lynn Arreola was the individual designated to receive service for the
defendant); Pharmakinetics Labs., Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.–San
Antonio 2001, pet. denied) (holding service of process defective when the return receipt
was not signed by the addressee); Bronze & Beautiful, Inc. v. Mahone, 750 S.W.2d 28, 29
(Tex. App.–Texarkana 1988, no writ) (holding that service of process defective when the
receipt card was signed by someone who was not the registered agent).
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B. Discussion
While the return of service was signed by “B.K. Hundal” and “B.H. Hundal,” the
record does not establish who the recipient is or his or her relationship with A & A Express.
We cannot presume that “B.K. Hundal” or “B. H. Hundal” were authorized to accept service
on A & A Express’s behalf without evidence in the record supporting such a presumption.
See TEX . R. CIV. P. 107; Silver, 884 S.W.2d at 152; Festina, 226 S.W.3d at 407; see also
Maib, 2009 Tex. App. LEXIS 4135, at *4. Moreover, Triumph, in its original petition, stated
that A & A Express’s authorized agent is “Herender Handal,” not “B.K. Hundal” or “B. H.
Hundal.” Furthermore, the service address indicated on the citation does not correspond
to the address for A & A Express’s authorized agent for service, as contained in Triumph’s
original petition.
Thus, the record fails to show that Triumph served an authorized agent of A & A
Express. Triumph did not strictly comply with the rules for service of citation; therefore,
Triumph’s attempt to serve A & A Express was “invalid and of no effect.” See TEX . R. CIV.
P. 107; see also Uvalde Country Club, 690 S.W.2d at 855; Gamboa, 172 S.W.3d at 93;
All Commercial Floors, Inc., 97 S.W.3d at 727; Keeton, 53 S.W.3d at 19; Bronze &
Beautiful, Inc., 750 S.W.2d at 29; Katz, 717 S.W.2d at 706. We hold that the trial court
erred in granting a default judgment in favor of Triumph. See Lejeune, 297 S.W.3d at 256;
Silver, 884 S.W.2d at 153; see also Alexander, 134 S.W.3d at 848; Fredricks, 235 S.W.3d
at 278. A & A Express’s first issue on appeal is sustained.
IV. CONCLUSION
Because we have sustained A & A Express’s first issue, we need not address its
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other issues on appeal. See TEX . R. APP. P. 47.1. We therefore reverse and remand for
proceedings consistent with this opinion.
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
15th day of July, 2010.
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