Brian T. Boyd v. David Kobierowski--Appeal from County Court At Law No 10 of Bexar County

MEMORANDUM OPINION

No. 04-06-00411-CV

Brian BOYD,

Appellant

v.

David KOBIEROWSKI,

Appellee

From the County Court at Law No. 10, Bexar County, Texas

Trial Court No. 307130

Honorable H. Paul Canales, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

Delivered and Filed: February 7, 2007

REVERSED and REMANDED

Brian Boyd appeals the trial court's entry of a default judgment against him and asserts on appeal that the trial court lacked in personam jurisdiction to grant David Kobierowski's motion for default judgment. We reverse and remand for further proceedings below.

Factual and Procedural History

Kobierowski filed his original petition seeking damages from Boyd on October 6, 2005. On that same day, the county clerk issued citation for service upon Boyd, which provided for service by certified mail. The "green card" reflecting the domestic return receipt for delivery of the citation is addressed to Brian T. Boyd, 315 South Coast Highway #154, Encinitas, CA 92024, but is signed by a Gilbert Carrillo.

Boyd did not appear or file an answer and on December 23, 2005, the trial court entered a default judgment against him. On appeal, Boyd argues that the trial court did not have jurisdiction to grant the default judgment against him due to improper issuance, service, and return of citation. He contends that the delivery of the citation by certified mail was not sufficient to confer jurisdiction on the trial court because the return receipt was signed by someone other than himself. For the reasons stated below, we agree.

Discussion

A "default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements." Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 858 (Tex. App.-San Antonio 2002, pet. denied). Additionally, there are no presumptions in favor of a valid issuance, service, and return of citation in the face of a direct attack on a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam); Benefit Planners,L.L.P., 81 S.W.3d at 858. Failure to comply with the Texas Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Wilson, 800 S.W.2d at 836-37.

A return of a citation served by registered or certified mail must contain the return receipt with addressee's signature. Tex. R. Civ. P. 107; Keeton v. Carrasco, 53 S.W.3d 13, 19 (Tex. App.-San Antonio 2001, pet. denied). If the return receipt is not signed by the addressee, the service of process is defective. Id.; Southwestern Security Services, Inc. v. Gamboa, 172 S.W.3d 90, 92 (Tex. App.-El Paso 2005, no pet.) (holding return receipt invalid when signed by Guillermo Montes where Jesus Morales was the individual designated to receive service).

In Pharmakinetics Laboratories, Inc., the court held that a domestic return receipt was invalid when it was signed by a Charlotte Young, while the name of the of the appointee designated to receive service for defendant was listed as Steve Woodman. Pharmakinetics Laboratories, Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.-San Antonio 1986, no writ). The court found that the discrepancy rendered service of process invalid since the record on its face showed that the return was not signed by the person appointed. Id. Here, while Brian Boyd was the individual designated to receive service, the return receipt was signed by Gilbert Carrillo. Because the record shows on its face that the return receipt was not signed by the addressee or a registered agent, Kobierowski did not strictly comply with Rule 107. We therefore sustain Boyd's only issue.

Conclusion

Having sustained Boyd's sole issue on review, we reverse the judgment of the trial court and remand this case for further proceedings.

Catherine Stone, Justice