Rod Rogers v. Jasper Stover, W. T. Barber, and Ruby Rigsby--Appeal from 102nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00065-CV

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ROD ROGERS, Appellant

V.

JASPER STOVER, W. T. BARBER, AND RUBY RIGSBY, Appellees

On Appeal from the 102nd Judicial District Court

Bowie County, Texas

Trial Court No. 04C1666-102

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Jasper Stover, W. T. Barber, and Ruby Rigsby (collectively, Appellees) brought an action against their neighbor, Rod Rogers, in connection with a dispute centering on the status of a road located near their properties. Appellees alleged that Rogers constructed a barrier on the road prohibiting them from using the road to access their land. They sought declaratory and injunctive relief as well as attorney's fees and an order requiring Rogers to repair the damage to the road caused by the construction of the barrier.

Appellees filed their petition December 6, 2004. On January 10, 2005, the trial court signed a default judgment in favor of Appellees. On January 13, 2005, Rogers filed a Motion to Set Aside the Default Judgment or Motion for New Trial. The trial court heard this motion, but made no express ruling on it. The motion was overruled by operation of law. Rogers now appeals this judgment arguing, among other things, that service was fatally defective. We agree, reverse the default judgment, and remand the matter for further proceedings.

Service of Process and Default Judgment

It is well-established that, for a default judgment to stand, the record must show strict compliance with the Rules of Civil Procedure relating to the issuance, service, and return of citation. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). The Texas Rules of Civil Procedure provide the methods of service of process. See Tex. R. Civ. P. 99 124. Receiving suit papers or actual notice through a procedure not authorized for service is treated the same as never receiving them. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., No 05-0295, 2006 Tex. LEXIS 134, at *3 n.1 (Tex. Feb. 24, 2006) (publication status pending) (citing Wilson, 800 S.W.2d at 836).

Arguments have been presented regarding the considerations of both an ordinary appeal and a restricted appeal. First, this case is clearly an ordinary appeal since Rogers participated in the trial court through his motion for new trial. See Tex. R. App. P. 30. However, much like in a restricted appeal, we do not have before us a court reporter's record of the hearing on Rogers' motion for new trial. So, there is some question regarding what presumptions, if any, apply to this case regarding the evidence at the hearing on the motion for new trial.

We have reviewed the Texas Supreme Court's recent opinion in Drewery Construction and recognize the differences in cases which are presented by a restricted appeal rather than an ordinary appeal. Stover argues that those differences are important in this case since there was a hearing on a motion for new trial and that we should presume, in the absence of a court reporter's record, the reporter's record supports the validity of the service of citation, citing our opinion in Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262 (Tex. App. Texarkana 1992, writ dism'd).

We conclude that the service of process was attempted in a manner not authorized by the Rules and that the distinctions in presumptions applicable to restricted appeals and ordinary appeals do control this matter.

Method of Service Not Authorized by Law

Here, service was attempted by certified mail, return receipt requested. However, the record affirmatively shows that the attorneys for Stover attempted to serve the citation.

According to the clerk's record, the original petition was filed December 6, 2004, and a citation was issued. An amended petition was filed December 27, 2004. According to the citation, the original petition was attached, not the amended petition. The officer's return form which is attached to the lower portion of the citation is completely unmarked. The next page in the clerk's record is a United States Postal Service form which appears to show that a delivery was made to Rod Rogers December 8, 2004. At the top of the document the following is printed: "Sender: Please print your name, address, and ZIP + 4 in this box." Imprinted in the designated box is what appears to be the stamped name as follows: "Atchley Russell Waldrop and Hlavinka / 1710 Moores Ln./ Texarkana, TX 75503." In the lower right-hand corner is a handwritten notation "Stover- pldgs" and in the lower left-hand corner is the handprinted notation "JWT."

At the time this citation was issued, the Texas Rules of Civil Procedure authorized service of process by any sheriff or constable or other person authorized by law or by any person authorized by law or by written order of the court who is not less than eighteen years of age. // The rule authorizes that service by registered or certified mail must be made by the clerk of the court, if requested. "But no person who is a party to or interested in the outcome of a suit may serve any process . . . ." Tex. R. Civ. P. 103. After service has been accomplished, the officer or authorized person must endorse a return showing when the citation was served and the manner of service and be signed by the officer or authorized person. The return of citation by an authorized person shall be verified. When the citation was served by registered or certified mail as authorized, the return must also contain the return receipt with the addressee's signature. See Tex. R. Civ. P. 107.

Among the many defects with this service of citation, the most troublesome is that the record affirmatively shows that the attorneys for a party attempted to serve the citation by mailing the document to Rogers. An attorney for one party to the lawsuit is a person with an interest in the outcome of the case and is not authorized to serve process. See Jackson v. United States, 138 F.R.D. 83, 88 (S.D. Tex. 1991). Therefore, service was attempted by a procedure not authorized and is treated as no service. See Drewery Constr., 2006 Tex. LEXIS 134, at *3 n.1. Several other defects readily appear: (1) the defendant was served only with the original petition, not the amended petition; (2) no officer or authorized person endorsed the day and hour on which he or she received the citation pursuant to Tex. R. Civ. P. 105; (3) the return of service is completely void of any information concerning the date, hour, and method of service; (4) the return is not verified; (5) there is no order appointing or authorizing any person, other than the usual officers, to complete service of process. These omissions render the service of citation defective and require reversal and remand of the judgment. See Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 74 (Tex. App. Waco 1997, writ denied) (holding that attempted service of citation fails to strictly comply with the rules when the postal return receipt is included in lieu of completing the officer's return section); Retail Techs., Inc. v. Palm City T.V., Inc., 791 S.W.2d 345, 346 47 (Tex. App. Corpus Christi 1990, no writ) (same). But see Walker v. W.J.T., Inc., 737 S.W.2d 48, 49 (Tex. App. San Antonio 1987, no writ) (holding that certificate of service completed by deputy clerk fills gap of officer's blank return).

We need not address whether any of such defects may have been explained, corrected, or overcome by a hearing on the motion for new trial because the procedure used to attempt service was not authorized by law. Because the record affirmatively shows service of process was attempted by a method not authorized by law, such service is of no consequence and will not support a default judgment.

Due to the dispositive nature of this issue, we need not address other issues raised. We reverse the default judgment and remand this cause to the trial court for further proceedings.

Jack Carter

Justice

Date Submitted: November 15, 2005

Date Decided: April 5, 2006