ALBERT WILLIAM CARTER v. ENRIQUE ESTRADA--Appeal from County Court at Law No 4 of Hidalgo County

NUMBER 13-02-568-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

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ALBERT WILLIAM CARTER, Appellant,

 
v.

ENRIQUE ESTRADA, Appellee.

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On appeal from the County Court at Law No. 4
of Hidalgo County, Texas.

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MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Opinion by Justice Rodriguez

This is an appeal from a default judgment entered against appellant, Albert Carter, in a negligence case. By his sole issue, appellant complains the trial court erred as a matter of law in granting the default judgment against him because service was defective. We vacate the judgment and remand for further proceedings.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

Because the issue in this appeal involves the application of well-settled principles of law, we vacate the default judgment and remand for further proceedings for the following reasons:

Appellant (1) filed this appeal within six months after the trial court signed the default judgment, (2) is a named defendant in the lawsuit, and (3) did not participate at the hearing, thus satisfying the first, second, and third requirements for successfully attacking a default judgment by a restricted appeal. See Carmona v. Bunzl Distribution, 76 S.W.3d 566, 568 (Tex. App.-Corpus Christi 2002, no pet.) (citing Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)); and
The face of the record fails to show strict compliance with the rules of civil procedure because the authorized person, in this case the private process server, did not verify the return of citation. See id. at 568-69 (citing Tex. R. Civ. P. 107; McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.-Houston [1st Dist.] 1992, writ denied)). Because appellant has demonstrated the error is apparent from the face of the record, he has satisfied the fourth requirement. See Quaestor Invs., 997 S.W.2d at 227.

Accordingly, we hold that service of process on appellant was invalid and of no effect. We sustain appellant's sole point of error.

The judgment of the trial court is vacated and this cause is remanded to the trial court for further proceedings.

NELDA V. RODRIGUEZ

Justice

 

Opinion delivered and filed

this 30th day of October, 2003.