Lic. Luis Felipe Mendoza, Individually and d/b/a Grupo Bufete Industrial; Ing. Jose Mendoza Fernandez, Individually and d/b/a Grupo Bufete Industrial; Grupo Bufete Industrial, A Mexican Company; Bufete Industrial, S.A., A Mexican Company; Et Al. v. R.O.T., Inc., A Texas Domestic Corporation--Appeal from 49th Judicial District Court of Webb County

No. 04-00-00163-CV

Lic. Luis Felipe MENDOZA, Individually and d/b/a Grupo Bufete Industrial; Ing. Jose Mendoza Fernandez, Individually and d/b/a Grupo Bufete Industrial; Grupo Bufete Industrial; Bufete Industrial, S.A.; Bufete Industrial Construcciones S.A. De C.V.; Constructora Urbec, S.A. De C.V.; Bufete Industrial Infraestucturas S.A. De C.V.,

Appellants

v.

R.O.T., INC., A Texas Domestic Corporation,

Appellee

From the 49th Judicial District Court, Webb County, Texas

Trial Court No. 99-CVF-00765-D1

Honorable Manuel R. Flores, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 6, 2000

REVERSED AND REMANDED

This is an appeal from a default judgment entered against the appellants, all of whom are residents of the Republic of Mexico. On July 20, 1999, R.O.T. Inc. sued the appellants to collect on a sworn account and a note. The appellants did not appear or file an answer. R.O.T. moved for a default judgment, which the trial court granted. After a hearing, the trial court entered judgment in R.O.T.'s favor and awarded R.O.T. damages, attorney's fees, and interest.

The appellants timely filed a notice of restricted appeal. See Tex .R. App. P. 26.1(c), 30. The appellants contend the trial court did not have specific or general jurisdiction over them, there is no or insufficient evidence of a sworn account or a note, and service of process was invalid. R.O.T. did not file an appellate brief. Because we hold that service was invalid, we reverse the default judgment and remand the cause to the trial court.

SERVICE OF PROCESS

To succeed on a restricted appeal, a party is required, among other things, to show that error is apparent on the face of the record. See Tex. R. App. P. 30.; Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (so holding with respect to appeal by writ of error, which was replaced by restricted appeal). To obtain a valid default judgment, the record must reflect strict compliance with the Rules of Civil Procedure respecting the issuance of citation, the manner and mode of service, and the return of process. See Primate Const., 884 S.W.2d at 152. There is no presumption in favor of valid issuance, service, and return of citation in the face of an attack on a default judgment by restricted appeal. See id.; Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Personal jurisdiction is dependent on citation being issued and served as required by law. See Wilson, 800 S.W.2d at 836.

The Supreme Court has held that the return of citation is not a trivial, formulaic document. Primate Constr., 884 S.W.2d at 152. (1)

The return is considered prima facie evidence of the facts recited therein, and the recitations in the return carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party. Id.

It is the responsibility of the one requesting service, not the process server, to see that service is properly accomplished. Tex. R. Civ. P. 99(a). This responsibility extends to seeing that service is properly reflected in the record. The Rules of Civil Procedure allow for liberal amendment of the return of service to show the true facts of service. Primate Constr., 884 S.W.2d at 153; Tex. R. Civ. P. 118. If the facts as recited in the return are incorrect and do not show proper service, the one requesting service must amend the return prior to judgment. Primate Constr., 884 S.W.2d at 153. If proper service is not affirmatively shown, there is error on the face of the record and default judgment is improper. Primate Constr., 884 S.W.2d at 153. Virtually any deviation will be sufficient to set aside a default judgment in a restricted appeal. See Dolly v. Aethos Communications Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.-Dallas 2000, n.p.h.); Becker v. Russell, 765 S.W.2d 899, 901 (Tex. App.-Austin 1989, no writ).

R.O.T.'s Petition

R.O.T.'s petition states that each of the appellants could be served at the following address: Moras #850 Col. De Valle, Mexico D.F., Mexico 03100. The certificate of last known address states the same address. The appellants admit on appeal that Mexico is the correct country, D.F. is the correct state, and Mexico is the correct city. The notices, however, were issued to a different address in a different state or served at a different address in a different state. (2) Although each notice was purportedly served in the Republic of Mexico, none were translated into Spanish.

Service on Grupo Bufete Industrial

The non-resident notice was issued to the correct address as stated in the petition. However, the Rule 106 certificate was not signed; it merely states, "Private Processor." (3) The return shows notice was served in the State of Mexico, not the Federal District. The State of Mexico and the Federal District are two different states in the Republic of Mexico. (4) The return also states it was served in the County of Mexico; Mexico has no counties.

Service on Bufete Industrial Infraestructuras S.A. de C.V.

The non-resident notice was not issued to the correct address stated in the petition. It was issued to Mexico, Mx.; not Mexico D.F., Mexico. The Rule 106 certificate was not signed; it merely states, "Private Processor." The return shows notice was served in the State of Mexico, not the Federal District. The return also states notice was served in the County of Mexico. The return states notice was served on Bufete Industrial Infraes. S.A. de C.V., not Bufete Industrial Infraestructuras S.A. de C.V.

Service on Bufete Industrial Construcciones S.A. de C.V.

The non-resident notice was issued to the correct address as stated in the petition. However, the name is misspelled; instead of "Construcciones," notice was issued to "Costrucciones." The Rule 106 certificate was not signed; it merely states, "Private Processor." The return shows notice was delivered to Bufete Ind. Cons. in the State of Mexico, not the Federal District.

Service on Jose Mendoza Fernandez

The non-resident notice was not issued to the correct address stated in the petition. It was issued to Mexico, Mx.; not Mexico D.F., Mexico. The Rule 106 certificate was not signed, it merely states; "Private Processor." The return shows notice was served in the State of Mexico, not the Federal District.

Service on Bufete Industrial S.A.

The non-resident notice was not issued to the correct address stated in the petition. It was issued to Mexico, Mx.; not Mexico D.F., Mexico. The Rule 106 certificate was not signed, it merely states; "Private Processor." The return shows notice was served in the State of Mexico, not the Federal District.

Service on Constructora Urbec S.A. de C.V.

The non-resident notice was not issued to the correct address stated in the petition. It was issued to Mexico, Mx.; not Mexico D.F., Mexico. The Rule 106 certificate was not signed, it merely states; "Private Processor." The return shows notice was served in the State of Mexico, not the Federal District.

Service on Luis Felipe Mendoza

The non-resident notice was not issued to the correct address stated in the petition. It was issued to Mexico, Mx.; not Mexico D.F., Mexico. The Rule 106 certificate was not signed, it merely states; "Private Processor." The return shows notice was served in the State of Mexico, not the Federal District.

Conclusion

Each return of citation indicates service at an address different than that reflected in the petition. Service at an incorrect address is a ground upon which default judgment will be set aside. See Royal Surplus Lines Ins. Co. v. Samaria Baptist Church, 840 S.W.2d 382, 383 (Tex. 1992). Therefore, we reverse the trial court's judgment and remand the cause to the trial court for further proceedings. Because we hold that service was invalid, we do not address the appellants' other contentions on appeal.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. In Primate Construction, Primate was first named as a defendant in plaintiffs' second amended petition. The citation indicated that the citation was attached to a true and correct copy of plaintiffs' second amended petition; however, the pre-printed return of service form, signed by the sheriff, indicated that Primate was served with a true and correct copy of the plaintiffs' original petition. When Primate did not answer, the plaintiffs took a default judgment, from which Primate appealed by writ of error to the court of appeals, which affirmed the judgment. On appeal to the Supreme Court, the plaintiffs argued there was no error because the blanks filled in on the citation showed the correct petition was attached, while the only evidence to the contrary was a form on which the sheriff made no affirmative alteration. However, because the sheriff's return showed that the defendant was served with a version of the plaintiffs' petition in which Primate was not named as a defendant, there was error on the face of the record. 884 S.W.2d at 152.

2. Each return of service indicates the citation was received by the process server in Laredo, Texas on July 22 at 10:00 a.m., and served on each defendant in Mexico on July 22 at 1:40 p.m. On appeal, the appellants note that this time sequence would have required the process server to obtain the citations at 10:00 a.m. in Laredo, board a flight to Mexico City, go through customs and immigration, travel from the airport in Mexico City to the appellants' offices, and serve the appellants in three hours and 40 minutes.

3. Rule 107 requires that the return of service be signed by the authorized person. Tex. R. Civ. P. 107.

4. D.F. stands for District Federal or Federal District, similar to D.C. or the District of Columbia in the United States).