Roberto C. Rodriguez v. Uvalde Care Center, LLC, d/b/a Uvalde Healthcare--Appeal from 38th Judicial District Court of Uvalde County

MEMORANDUM OPINION

No. 04-04-00269-CV

Roberto C. RODRIGUEZ,

Appellant

v.

UVALDE CARE CENTER, LLC, d/b/a Uvalde Healthcare,

Appellee

From the 38th Judicial District Court, Uvalde County, Texas

Trial Court No. 03-09-23,786-CV

Honorable Mickey R. Pennington, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 13, 2004

AFFIRMED

Appellant, Roberto C. Rodriguez, sued Uvalde Care Center, LLC d/b/a Uvalde Healthcare ("Uvalde Healthcare"). Uvalde Healthcare did not file an answer, and the trial court rendered a default judgment in Rodriguez's favor on July 21, 2003. On September 26, 2003, Uvalde Healthcare filed a petition for bill of review in which it alleged as its sole ground for relief that the return of service was defective. The trial court granted the bill of review, and Rodriguez appealed. We affirm.

ANALYSIS

On appeal, Rodriguez asserts (1) service of citation was sufficient to support the default judgment, (2) the trial court erred in granting the bill of review because Uvalde Healthcare did not use due diligence in pursuing an appeal, and (3) Uvalde Healthcare did not plead or prove the elements necessary to establish its entitlement to a bill of review. In reviewing the grant or denial of a bill of review, every presumption is indulged in favor of the court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of judicial discretion. Interaction,Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.--Austin 2000, pet. denied).

A bill of review constitutes a direct attack on a judgment; thus, there are no presumptions favoring valid issuance, service, or return of citation. Min v. Avila, 991 S.W.2d 495, 499 (Tex. App.--Houston [1st Dist.] 1999, no pet.). A default judgment cannot withstand direct attack by a defendant who complains that it was not served in strict compliance with applicable requirements. See Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); see also Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Strict compliance requires that the name of the party listed in the return of service essentially match that of the party named in the citation or petition. North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 718 (Tex. App.--Austin 2003, pet. denied); see also Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Whitworth, 124 S.W.3d at 718.

Here, the citation stated that Uvalde Healthcare "may be served with process by serving its registered agent, Maria De Lourdes Zebdejas at 535 North Park Street, Uvalde County, Texas 78801." The sheriff's return indicates a date and time of service, but the remainder of the pre-printed form merely indicates service was made upon "the within named Respondent." The return does not indicate the individual upon whom service was made. If the return of service does not show that a corporation was served by delivering the citation and petition to its registered agent for service, in the agent's capacity as registered agent, the return and service are defective. Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 859 (Tex. App.--San Antonio 2002, pet. denied). Because the return did not recite that citation was delivered to Uvalde Healthcare by serving its registered agent, the service of process was invalid.

Rodriguez counters that even if service of process was invalid, Uvalde Healthcare did not attempt to appeal the default judgment; therefore, it was not entitled to a bill of review. Recently, the Texas Supreme Court addressed whether a restricted appeal is a prerequisite to a bill of review. See Gold v. Gold, No. 03-0906, 2004 WL 1982506 (Tex. Sept. 3, 2004) (per curiam). The Court held that it was not. Id. at *1. The Supreme Court noted it had previously stated that relief by bill of review is available "only if a party has exercised due diligence in pursuing all adequate legal remedies . . . [and not] [i]f legal remedies were available but ignored." Id. at *2 (internal citations omitted). However, the Court held that this rule applies only to motions that could have been filed in the trial court's first proceeding. Id. A party is not ignoring its remedies "when it chooses one appellate avenue rather than another." Id. Similarly, we hold that Uvalde Healthcare was not required to appeal the default judgment as a prerequisite to filing its bill of review.

Finally, Rodriguez asserts Uvalde Healthcare did not plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that it was prevented from making by the fraud, accident or wrongful act of its opponent, (3) unmixed with any fault or negligence of its own. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); Magan v. Hughes Television Network, Inc., 727 S.W.2d 104, 105 (Tex. App.--San Antonio 1987, no writ). However, a petitioner on a bill of review is relieved of showing these three elements when, as here, it was not served. Caldwell, 975 S.W.2d at 537.

We conclude the trial court did not abuse its discretion in granting Uvalde Healthcare's bill of review. Accordingly, we overrule Rodriguez's issues on appeal and affirm the trial court's judgment.

Phylis J. Speedlin, Justice