Lake Air Business Corp. Unit 1703 v. Rick Shelton--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

NO. 10-91-024-CV

LAKE AIR BUSINESS CORP. UNIT 1703,

Appellant

v.

RICK SHELTON,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 90-1025-4

O P I N I O N

Rick Shelton filed suit against Lake Air Business Corp. United 1703, Michelle Buford, and Thomas Wiggins. Buford and Wiggins were served with citation by personal service, and Shelton obtained an order authorizing service of citation on Lake Air under Rule 106. See Tex. R. Civ. P. 106. When Lake Air and Buford did not answer, Shelton dismissed Wiggins as a defendant; a default judgment was entered against Lake Air and Buford. Lake Air appeals by a writ of error to set aside the default judgment, asserting that the court lacked in personam jurisdiction because the service of citation was defective. We will reverse the judgment and remand the cause for a trial.

A petitioner who seeks a review by writ of error must show that: (1) the petition was filed within six months of the date of the judgment, (2) he was a party to the suit, (3) he did not participate in the trial, and (4) error is apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985). Lake Air meets the first three requirements; we will determine whether there is error on the face of the record. See id.

Jurisdiction of the court stemmed only from service of process under Rules 103 and 106. See United Nat. Bank v. Travel Music, 737 S.W.2d 30, 32 (Tex. App. San Antonio 1987, writ ref'd n.r.e.); Tex. R. Civ. P. 103, 106. Shelton did not attempt to deliver process personally to any agent for the corporation.

The parties agree that the default judgment can be upheld only if the record shows strict compliance with the applicable rules relating to the issuance, service, and return of citation. See Cates v. Pon, 663 S.W.2d 99, 102 (Tex. App. Houston [14th Dist.] 1983, writ ref'd n.r.e.).

Lake Air asserts that substituted service of citation should not have been allowed because personal service was not attempted, that the affidavit supporting the motion for service under Rule 106 was defective, and that the record does not show any connection between the person who received the citation and Lake Air. See Tex. R. Civ. P. 106. Because of our disposition of the case, we do not reach any of those arguments.

The record clearly shows that the citation was not served at the address authorized by the order. The order authorized service on Lake Air at 1425-B Lake Air Drive, Waco, Texas 76710. The postal service "green card" shows that the citation was addressed to Lake Air at 121 N. Post Oak Lane, Houston, Texas 77024. Thus, the face of the record reveals that the service of citation on Lake Air was not made in strict compliance with the rules and that the court had no jurisdiction to enter the default judgment. See id.

We reverse the judgment and remand the cause for trial. A new citation addressed to Lake Air is unnecessary; by appealing, Lake Air has submitted itself to the jurisdiction of the court and is before the court for a trial on the merits. See Tex. R. Civ. P. 123.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Reversed and remanded

Opinion delivered and filed January 8, 1992

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