Shontelle Porter v. Ernest Robertson and Zola Robertson--Appeal from 410th District Court of Montgomery County

NUMBER 13-01-033-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

SHONTELLE PORTER, Appellant,

v.

ERNEST ROBERTSON AND ZOLA ROBERTSON, Appellees.

On appeal from the 410th District Court

of Montgomery County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Castillo and Wittig[1]

Opinion by Justice Wittig

This appeal is from a default judgment. The return of citation by the authorized person was not verified. We will reverse and remand.

Background

This is a personal injury automobile accident case. Appellees, Ernest and Zola Robertson, brought suit against Shontelle Porter in April 2000. Porter was served May 5, 2000, by a private process server. After the return was on file more than ten days, appellees took a default judgment. The visiting judge found past and future damages plus punitive damages in excess of one million dollars. Appellant filed a restricted appeal in December 2000, less than six months after the judgment was signed in June 30, 2000. Appellant brings fifteen issues. Issues two through fifteen are legal and factual sufficiency challenges to the various damage awards. The first issue is dispositive. In it, appellant challenges the sufficiency of the return of the citation and petition. Appellant argues for strict compliance with Rule 107. Tex. R. Civ. P. 107. Rule 107 requires that the return of service by an authorized person be verified. We agree.[2]

Discussion

To obtain a reversal of an underlying judgment in a restricted appeal, a party must satisfy four elements: (1) a notice of restricted appeal must be filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment of which the party complains and did not file a timely post judgment motion; and (4) error must be apparent on the face of the record. Tex. R. App. P. 26.1(c); Dolly v. Aethos Communications Sys., Inc., 10 S.W.3d 384, 387-88 (Tex. App.BDallas 2000, no pet.) (citations omitted). Appellant=s appeal meets the first three criteria. The only question is whether there is error on the face of the record.

In a direct attack on a default judgment, there are no presumptions in favor of valid issuance, service, and return of citation. Dolly, 10 S.W.3d at 387-88 (citing Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)). In a restricted appeal, defective service of process constitutes error apparent on the face of the record. Silver, 884 S.W.2d at 153. For a default judgment to be sustained, the burden is on the plaintiff to prove that the defendant was served in the manner required by the applicable statute. See Dolly, 10 S.W.3d at 388.

As appellant correctly argues, the return of service of process under Rule 107 is not a trivial or formulaic document. Silver, 884 S.W.2d at 152. The Supreme Court requires 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. Id. A default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the lawsuit. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990).

In the record before us there is an affidavit by the process server. The affidavit, however, only attests to the server=s qualifications: he is over 18, has no interest in the case, is not convicted, et cetera. There is no return of service acknowledged before a notary concerning the fact of service, the time of service and the manner of service. The law is well-rehearsed that verification under Rule 107 means an acknowledgment before a notary including the fact of service, as well as the time and manner of service Seib v. Bekker, 964 S.W.2d 25, 28 (Tex. App.BTyler 1997, no writ). The Seib court rejected virtually the same qualifications affidavit that we find in this case: AThis document clearly failed to verify the facts relating to the act of service, and no other document in the record appears to meet the requirements for a verification of service as required by the governing rules.@ Id.

Because the record before this Court does not affirmatively show a verification of the return in strict compliance with the Texas Rules of Civil Procedure, we hold that the judgment cannot stand. Silver, 884 S.W.2d at 152 53. Appellant=s first issue is sustained. The judgment of the trial court is reversed and remanded.

DON WITTIG

Retired Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 20th day of June, 2002.

[1] Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).

[2] We are not favored with a brief from appellees.