Allied Collision Center, Inc. d/b/a Allied Collision & Auto Repair Storage v. Elouise Clark Appeal from Co Civil Ct at Law No 4 of Harris County (opinion)
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Reversed and Remanded and Memorandum Opinion filed February 14, 2017. In The Fourteenth Court of Appeals NO. 14-15-01098-CV ALLIED COLLISION CENTER, INC. D/B/A ALLIED COLLISION & AUTO REPAIR STORAGE, Appellant V. ELOUISE CLARK, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 1055362 MEMORANDUM OPINION In this suit for the conversion of the plaintiff’s car, the defendant appeals from the default judgment rendered against it and the denial of its motion for new trial. Because there is no evidence that the defendant was served, we reverse the trial court’s judgment and remand the cause. I. Background Plaintiff Elouise Clark sued an automotive-repair shop for allegedly converting her car, valued at $4,000.00. In her petition, she identified the defendant as “Allied Collision & Auto Repair Storage, an individual” operating a business in Houston. She further stated that Allied could be served through its agent Yassir Khaled at an address in Sugar Land. The clerk of the trial court issued the citation, which was directed to Allied through its agent Khaled at the Sugar Land address. The accompanying return, which was to be completed by the officer to whom it was issued, contained lines on which the officer was to state the name of the person served, the date and time of service, and the address at which service was completed. The return also included alternative blanks to be filled in if service was not completed, including spaces for the officer to identify “the diligence used in finding said Defendant,” “the cause of failure to execute this process,” and “the information received as to the whereabouts of the said Defendant.” More than seven months after the citation was issued, the return of service was filed. It is blank. Clark also filed a document styled, “Proof of Service Via Certified Mail.” In it, she asserts that Allied “was serve[d] via certified mail in accordance with Rule 106” at its address in Houston on Saturday, April 25, 2014. Attached to this document is an unauthenticated copy of one side of a certified mail receipt. The receipt shows that the mailed material was addressed to the attention of “Khaled Yassir/Mahmoud Yassir” at “Allied Collision & Auto Repair” at a Houston address. The mailing was received by “Mike Qutob.” Next to Mr. Qutob’s signature are two boxes which can be checked to identify the recipient as “Agent” or “Addressee.” Both boxes are blank. 2 In her amended motion for default judgment, Clark stated, “On April 25, 2015 Defendant was properly served with citation and a copy of Plaintiffs’ petition by private process server at his home address.” She further stated that the citation and proof of service had been on file for at least ten days. The record contains no such return of service. Clark additionally stated that her damages were unliquidated and could not be proved by a written instrument. She therefore requested a hearing on damages. Nevertheless, she attached an affidavit in which she attested, “Plaintiff is entitled to unliquidated damages in the amount of $25,000.00 and attorney fees in excess of $2,500.00.” Two days after Clark filed the amended motion for default judgment, the trial court granted the motion, awarding her the full amount she sought in her affidavit. Allied timely moved for a new trial, supported by uncontroverted evidence that Allied’s legal name is Allied Collision Center, Inc., and it is a corporation, not an individual; Allied’s assumed name is “Allied Collision & Auto Repair,” not “Allied Collision & Auto Repair Storage”; Allied’s registered agent is its owner Khaled Yassir, not Yassir Khaled as stated in the petition and the citation; Yassir did not receive the petition, but if he had done so, he would have sent it to counsel to answer the suit; and 3 Allied had a storage lien on the vehicle, and although it notified Clark of the fees, she failed to pay them.1 Clark did not respond to the motion for new trial, and the trial court allowed it to be overruled by operation of law. Although Allied presents several issues on appeal, its challenge to the trial court’s failure to grant its motion for new trial is dispositive. II. Failure to Grant the Motion for New Trial When, as here, a default judgment was challenged in the trial court by a motion for new trial, we review the trial court’s refusal to grant the motion for abuse of discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). A trial court abuses its discretion if it incorrectly analyzes or applies the law. In re RSR Corp., 475 S.W.3d 775, 778 (Tex. 2015) (orig. proceeding). When a defendant’s motion for new trial attacks a default judgment, the court must focus on the defendant’s reason for failing to appear. See Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006). If the defendant did not answer because it did not receive the suit papers, then the default judgment generally must be set aside. See id.; see also TEX. R. CIV. P. 124 (“In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules.).” 1 Allied also correctly pointed out that the trial court ordered it to pay Clark more than six times the amount of the vehicle’s value as stated in Clark’s petition. 4 Here, Allied produced its agent’s uncontroverted evidence that he did not receive the suit papers. While a party’s uncorroborated testimony that it did not receive the suit papers is insufficient to overcome recitations to the contrary in a return of service, the record does not contain a valid return of service. A return of service must be completed and signed by the officer or authorized person executing the citation. See TEX. R. CIV. P. 107(a), (e). If the return is signed by a person other than a sheriff, constable, or clerk of the court, then the return must either be verified or signed under penalty of perjury. See TEX. R. CIV. P. 107(e). If the citation was served by certified mail, then the return also must contain the return receipt signed by the addressee. See TEX. R. CIV. P. 107(c). Absent a written court order, no person who is a party to or interested in the outcome of the suit may serve any process in that suit. See TEX. R. CIV. P. 103. Here, the return of service in the record is blank, and the “Proof of Service” filed by Clark’s attorney met none of these requirements for a return of service. It did not identify any person who claimed to have served the citation; it did not contain a return receipt signed by the addressee; it was signed only by Clark’s attorney, who is interested in the suit; Clark’s attorney did not verify the assertions in the document or sign it under penalty of perjury; and no written court order authorized Clark’s attorney to serve process in this suit. Cf. Drewery Constr. Co., 186 S.W.3d at 574 n.1 (“Receiving suit papers or actual notice through a procedure not authorized for service is treated the same as never receiving them.” (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990))). The “proof of service” instead shows that the material mailed was received by someone other than Allied’s agent. Because Allied produced affidavit testimony showing that it did not receive the suit papers and there is no return of service showing that Allied was validly 5 served, we conclude that the trial court abused its discretion in failing to grant the motion for new trial. III. Conclusion Without addressing Allied’s remaining arguments, we reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion. /s/ Tracy Christopher Justice Panel consists of Justices Christopher, Jamison, and Donovan. 6
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