Peter H. Eggert v. Lee Roy Gaitan--Appeal from County Court at Law of Erath County

Opinion filed September 6, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00117-CV

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   PETER H. EGGERT, Appellant

V.

LEE ROY GAITAN, Appellee

On Appeal from the County Court at Law

Erath County, Texas

Trial Court Cause No. CV05957

M E M O R A N D U M O P I N I O N

This is an appeal from the trial court=s order setting aside a default judgment in favor of Peter H. Eggert and granting Lee Roy Gaitan=s motion for new trial. We affirm.

Lee Roy Gaitan previously served as chief of police in Dublin, Texas. On April 5, 2004, Gaitan gave a statement to Texas Ranger Joe Hutson concerning a criminal case involving Marcos Gallardo. Gallardo appealed his conviction to this court, and the appeal was pending at the time of Gaitan=s statement.[1] Gaitan=s statement was filed in this court as an exhibit to the State=s response to Gallardo=s application for writ of habeas corpus.

On September 29, 2004, Eggert was indicted by an Erath County grand jury for offering to confer a benefit to a witness in the Gallardo case with the intent to influence the witness to testify falsely. Eggert filed a verified petition to take Gaitan=s deposition to investigate a possible cause of action against Gaitan. The trial court denied the petition. On March 21, 2005, Eggert then filed his first amended petition and request for disclosure alleging causes of action against Gaitan for defamation and libel.

Eggert obtained a default judgment against Gaitan on September 29, 2005. Gaitan filed a motion for new trial, and the trial court granted the motion. On January 3, 2006, Eggert filed a motion to compel the mental examination of Gaitan. The trial court denied Eggert=s motion to compel Gaitan=s mental examination and granted Gaitan=s motion for summary judgment.

In his first, second, and third issues on appeal, Eggert complains that the trial court erred in setting aside his default judgment and granting Gaitan=s motion for new trial. In his motion for new trial, Gaitan claimed that the citation was defective. Gaitan argued that the citation failed to strictly comply with the Texas Rules of Civil Procedure in four ways: (1) the return on citation was not verified, (2) the citation does not contain the address of the plaintiff, (3) the return does not reflect the time at which process server received citation, and (4) the citation failed to unambiguously identify the correct pleading as being attached.

The record must show strict compliance with the rules of procedure governing service of citation and return of service. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). There are no presumptions in favor of valid issuance, service, and return of citation in an attack on a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex. 1985). Failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 319 (Tex. App.CAustin 2002, no pet.). A default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements. Wilsonv. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render a default judgment. Wilson, 800 S.W.2d at 836 37; N.C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 721 (Tex. App.CAustin 2003, pet. den=d).

Tex. R. Civ. P. 107 provides:

The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified.

The return on the citation was signed by Kenneth Haley as an authorized person. Pursuant to Rule 107, Haley=s signature was required to be verified. The record does not show that Haley=s signature was verified. The record in this case does not support an implicit amendment of the citation return. See Higginbotham v. Gen. Life & Accident Ins. Co., 796 S.W.2d 695 (Tex. 1990). The citation does not strictly comply with the Texas Rules of Civil Procedure, and the trial court did not err in granting Gaitan=s motion for new trial and setting aside the default judgment. Eggert=s first, second, and third issues on appeal are overruled.

In his fourth issue on appeal, Eggert complains that the trial court erred in denying his motion to compel the mental examination of Gaitan. Tex. R. Civ. P. 204.1(c)(1) provides that a trial court may issue an order compelling a mental examination Aonly for good cause shown@ and only Awhen the mental or physical condition (including the blood group) of a party . . . is in controversy.@

In his motion to compel the mental examination, Eggert argued that Gaitan Awillfully and deliberately lied@ in his statement to Texas Ranger Hutson. Eggert further argued that Gaitan perjured himself when he testified under oath in a criminal trial. Gaitan contends that the affirmative defenses of absolute privilege and qualified privilege apply to his statements.

Communications made in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made. James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982). This privilege extends to any statements made by the judges, jurors, counsel, parties, or witnesses and attaches to all aspects of the proceedings, including statements made in open court, pretrial hearings, depositions, affidavits, and any of the pleadings or other papers in the case. James, 637 S.W.2d at 916 917. The privilege not only extends to statements made during litigation but also to statements made in contemplation of and preliminary to judicial proceedings. See Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex. App.C Houston [1st Dist.] 2001, no pet.). We find that Gaitan=s mental condition was not in controversy. The trial court did not err in denying Eggert=s motion to compel the mental examination of Gaitan. Eggert=s fourth issue on appeal is overruled. We have considered all of Eggert=s contentions on appeal, and all are overruled.

The judgment of the trial court is affirmed.

PER CURIAM

September 6, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Gallardo=s conviction was affirmed on September 30, 2004.