Clayton Henry v. Lance A. Fest--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00313-CV

Clayton Henry,

Appellant

v.

Lance A. Fest,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 03-001082-CV361

MEMORANDUM Opinion

  Clayton Henry challenges a default judgment entered in favor of Lance Fest. Henry asserts that the trial court erred in granting the default judgment because there was a defect in the return of citation. Additionally, he argues that the trial court abused its discretion when it denied his motion for new trial. Because the record fails to show strict compliance with the rules regarding the return of service, we reverse the default judgment and remand the cause.

BACKGROUND

Fest filed suit against Henry, seeking declaratory judgment to confirm that Fest, not Henry, was the rightful owner of two tracts of land. The district clerk issued a citation on May 28, 2003, and served Henry with the petition and citation on May 30, 2003. Henry signed the return receipt on May 30, 2003, and it was received by the district clerk on June 2, 2003. A deputy district clerk signed the return receipt and attached it to the citation. The Officer s Return on the citation was never filled out. After Henry failed to answer by the date the answer was due, Fest sought and was awarded a default judgment. Henry filed a motion for new trial, arguing the citation was deficient. The trial court denied the motion, found the service was proper, and found that Henry did not establish the elements of the Craddock test.

Strict compliance with the rules for service of citation must affirmatively appear in the record for a default judgment to withstand direct attack. Primate Const., Inc. v. Silver, 994 S.W.2d 151, 152 (Tex. 1994). There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment. Id. Lack of strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). A default judgment is improper against a defendant who has not been served in strict compliance with the rules, even if the defendant has actual knowledge of the lawsuit. Id. at 836-37.

Fest argues that the district clerk complied with the requirements of Texas Rules of Civil Procedure 106 and 107, even though the clerk did not complete the return. We have previously considered the issue of whether a postal return receipt can be substituted for a completed officer s return. Laidlaw Waste Systems, Inc. v. Wallace, 944 S.W.2d 72, 74-75 (Tex. App. Waco 1997, pet. denied). We held that by using the postal return receipt in lieu of completing the return, the district clerk s service of citation failed to strictly comply with the Rules of Civil Procedure and would not support the default judgment. Id. at 74. Fest argues that this case is distinguishable from Laidlaw in that the district clerk signed the return receipt. Fest would thus have us modify our holding in Laidlaw to allow a postal return receipt to be used in lieu of an officer s return if the return receipt is signed by the clerk. We decline to create such an exception to the requirement of strict compliance.

Because the record affirmatively shows a lack of strict compliance with the Rules of Civil Procedure, we sustain Henry s first issue. Id. at 75. We thus need not consider his additional issues.

CONCLUSION

We reverse the default judgment and remand this cause for further proceedings.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed April 13, 2005

[CV06]