The Lynd Company v. Steve E. Chapman--Appeal from 365th Judicial District Court of Maverick County

MEMORANDUM OPINION
No. 04-06-00439-CV
THE LYND COMPANY,
Appellant
v.
Steve E. CHAPMAN,
Appellee
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 05-15-21347-MCVAJA
Honorable Ron Carr, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: March 14, 2007

 

REVERSED AND REMANDED

This is a restricted appeal of a no answer default judgment. The Lynd Company asserts that the default judgment is void because the record does not reflect proper service.

"[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); see also Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 858 (Tex. App.--San Antonio 2002, pet. denied). In a restricted appeal, there are no presumptions in favor of valid issuance, service, and return of citation. Fidelity and Guar. Ins. Co. v. Drewery Const. Co., 186 S.W.3d 571, 572 (Tex. 2006). When the petition alleges that the registered agent is "Henry Bunting, Jr." and the citation and return reflect service on "Henry Bunting," the record does not reflect strict compliance with the rules of civil procedure relating to the issuance, service, and return of citation. Id. at 573; Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Wilson v. Dunn, 800 S.W.2d at 836; Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 290 (Tex. App.--Dallas 2003, no pet.). If proper service is not affirmatively shown, there is error on the face of the record, and the default judgment must be set aside. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994); Westcliffe, Inc., 105 S.W.3d at 290.

In this case, the petition states that The Lynd Company "may be served with process through its registered agent Michael J. Lynd." The certified mailing was addressed to "The Lynd Company/Served Through its Registered Agent Michael J Lynd." The certified mail receipt, however, was signed by Melissa Nuno. Accordingly, the record contains error on its face, and the default judgment is reversed. The cause is remanded to the trial court for further proceedings.

 

Alma L. L pez, Chief Justice