Araceli Armendariz and Jose Armendariz v. Rosa Barragan--Appeal from 358th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ARACELI ARMENDARIZ AND JOSE ARMENDARIZ,

Appellants,

v.

ROSA BARRAGAN,

Appellee.

No. 08-03-00223-CV

Appeal from the

358th District Court

of Ector County, Texas

(TC# D-112,653)

O P I N I O N

This is a restricted appeal in which Appellants, Araceli and Jose Armendariz, seek to set aside a default judgment based on defective service of process. For the reasons stated, we vacate and remand.

I. SUMMARY OF THE EVIDENCE

In January 2000, Appellee, Rosa Barragan, was involved in an automobile accident near Van Horn, Culberson County, Texas. She was the right front seat passenger in a vehicle driven by Araceli Armendariz and owned by Jose Armendariz. While attempting to avoid another vehicle in the roadway, Araceli Armendariz exited the lanes of traffic and struck a deer in the brush adjacent to the roadway. Appellee filed suit in January 2002, seeking damages for pain and suffering, mental anguish, physical impairment, disfigurement, lost wages, and medical expenses.

On January 24, 2002, the trial court appointed Mike Bates to serve process in the lawsuit. After attempts to serve Appellants were unsuccessful, Appellee filed her Motion for Substituted Service under Rule 106 of the Rules of Civil Procedure. The trial court granted the motion on May 1, 2002, authorizing Mike Bates, and or his agents, are authorized to serve citation, pursuant to Tex. R. Civ. P. 106, by attaching to door of abode or serving anyone over the age of 16. Citation was served on Araceli Armendariz and Jose Armendariz on March 26, 2002 at 11 a.m. by attaching securely to the front entry per Rule 106 TRCP. Gary Thornton executed two citation return forms which were filed with the district clerk s office on May 21, 2002.

On November 25, 2002, the trial court held a hearing at which Appellants failed to appear. The trial court granted default judgment in favor of Appellee, noting that Appellants failed to answer within the time allowed by law. Appellee was awarded $7,663.53 for past medical damages, $25,000 for past, present, and future physical impairment, $25,000 for past, present, and future mental pain and anguish, $4,200 for past loss of earnings, interest at the rate of 10 percent per year, and costs of court. On May 15, 2003, Appellants filed their notice of restricted appeal.

II. DISCUSSION

Appellants present one issue: Whether a default judgment must be reversed when a plaintiff fails to carry its burden of showing strict compliance with the Texas Rules of Civil Procedure governing service?

A restricted appeal (1) must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment complained of and who did not file a timely post-judgment motion; and (4) the error must be apparent from the face of the record. Tex. R. App. P. 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (per curiam). Review by restricted appeal entitles the appellant to the same scope of appeal as an ordinary appeal, except the error must appear on the face of the record. Tex. R. App. P. 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). For purposes of a restricted appeal, the record consists of all documents on file with the trial court at the time of judgment. Norman Communications, 955 S.W.2d at 270.

Default judgment was entered on November 25, 2002. Appellants filed their notice of restricted appeal on May 15, 2003, within six months of the date of judgment. Appellants were parties to the suit, did not participate in the hearing that resulted in the judgment, and did not file a timely post-judgment motion. Appellants have met the first three requirements of a restricted appeal. We must now determine if error is apparent from the face of the record.

Appellants argue that the error apparent on the face of the record is Appellee s defective service of process. Appellants assert that the evidence before the trial court at the time of the default hearing reflects that the returns of citation were unverified. We agree.

For well over a century, [the Texas Supreme Court] has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack. Primate Const., Inc. v. Silver, 884 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. Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985).

The rule at issue provides, in relevant part, as follows:

The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified.

Tex. R. Civ. P. 107 (emphasis added). In McGraw-Hill, Inc. v. Futrell, the appellant argued that a default judgment should be reversed because the process server had not verified the return of citation, as required by Rule 107 of the Texas Rules of Civil Procedure. McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.--Houston [1st Dist.] 1992, writ denied). The process server had only completed a certificate of delivery at the bottom of the return, certifying that he had delivered a copy of the citation to McGraw-Hill. Id. The court of appeals noted that it had previously defined verified as [a]n acknowledgment of an instrument before a notary public proves or verifies it for record. Id. (citing City of Houston v. Quinones, 172 S.W.2d 187, 190 (Tex. Civ. App.--Galveston 1943), rev d on other grounds, 142 Tex. 282, 177 S.W.2d 259 (1944)). The court reversed the default judgment because there was nothing on the citation or attached to the citation that could be considered a verification. McGraw-Hill, 823 S.W.2d at 416.

In Garza v. Zavala, the appellee admitted that the return of citation was not verified. Garza v. Zavala, 905 S.W.2d 312, 313 (Tex. App.--El Paso 1995, no writ). This Court found that the process server had completed a certificate of delivery, certifying that he had delivered a copy of the citation to the appellant, but there was nothing on the citation or attached to the citation that could be considered a verification of this certificate of delivery. Id. Because the face of the record failed to show strict compliance with Texas Rule of Civil Procedure 107, we held that service of process on Garza was defective and reversed the default judgment. Id.

In the instant case, the returns of citation show that Gary Thornton served the citation and petition on Araceli Armendariz 7650 McCallum #1809, Dallas, TX 75252 by attaching securely to the front entry per Rule 106 TRCP at 6:00 p.m. on May 14, 2002 and Jose Armendariz 7650 McCallum #1809, Dallas, TX 75252 by attaching securely to the front entry per Rule 106 TRCP at 6:00 p.m. on May 14, 2002. We find nothing on the citation or attached to the citation that could be considered a verification of the return of citation. We note that Appellee submitted an Affidavit of Service to the clerk of the 358th Judicial District Court on August 5, 2003, that was executed by Gary Thornton on July 31, 2003, after default judgment was entered and after this appeal was perfected. However, we are limited in review to the record as it existed before the trial court at the time the default judgment was rendered. See Armstrong v. Minshew, 768 S.W.2d 883, 884 (Tex. App.--Dallas 1989, no writ) (citing Wilson v. Industrial Leasing Corp., 689 S.W.2d 496, 497 (Tex. App.--Houston [1st Dist.] 1985, no writ); Southwestern Bell Telephone Co. v. Griffith, 575 S.W.2d 92, 104 (Tex. Civ. App.--Corpus Christi 1978, writ ref d n.r.e.)); see also Primate Const., 884 S.W.2d at 153 (holding that the one requesting service must amend the return prior to judgment) and White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.--Dallas 1963, no writ) (appellee cannot by supplemental transcript or otherwise introduce evidence in this Court which was necessary to make out a prima facie case in the trial court to support the default judgment).

Because the face of the record fails to show strict compliance with the Rules of Civil Procedure, we conclude Appellants have satisfied the fourth requirement. Accordingly, we hold that service of process on Appellants was invalid and of no effect.

We sustain Appellants sole issue. The judgment of the trial court is vacated and this cause is remanded to the trial court for further proceedings.

RICHARD BARAJAS, Chief Justice

August 20, 2004

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.