



WALKER V. BRODHEAD                                                  



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-91-205-CV



ROBERT H. WALKER & ANITA ZAPATA WALKER,


	APPELLANTS


vs.



EUGENE A. BRODHEAD, RECEIVER OF NATIONAL COUNTY
MUTUAL FIRE INSURANCE COMPANY,

	APPELLEE


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 494,255, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

 



	This is a default judgment case.  Robert H. Walker and Anita Zapata Walker ("the
Walkers"), appellants, filed a petition for bill of review in the district court in an attempt to
overturn a default judgment previously taken against Robert H. Walker ("R. Walker") by the
appellee, Eugene H. Brodhead, Receiver of National County Mutual Fire Insurance Company (the
"Receiver").  The trial court granted the Receiver's motion for summary judgment denying the
Walkers' bill of review, and the Walkers have appealed to this Court.  On appeal, the Walkers
argue in five points of error that the default judgment is void because the record affirmatively
shows that the trial court lacked personal jurisdiction over R. Walker at the time it entered the
judgment.  We will affirm the judgment of the trial court.


BACKGROUND
	On December 30, 1988, the Receiver filed suit against R. Walker and others,
alleging various causes of action for fraud in connection with the insolvency of National County
Mutual Fire Insurance Company ("National County").  After filing suit, the Receiver made
numerous unsuccessful attempts to serve process on R. Walker.  Thereafter, on January 23, 1989,
the Receiver obtained an order from the trial court authorizing substituted service of process. 
Pursuant to the order allowing substituted service, the process server left a copy of the citation
with a person at R. Walker's ranch in Kerrville, Texas.  Thereafter, R. Walker failed to answer
or appear in the suit, and the trial court rendered a default judgment against him on February 13,
1989.  On March 10, 1989, the trial court severed the suit against R. Walker from the remaining
defendants, making the default judgment final.
	In an attempt to overturn the default judgment, the Walkers filed a petition for bill
of review in November 1990, arguing:  (1) that the method of service attempted by the Receiver
was not reasonably calculated to give R. Walker notice of the suit and in fact did not give him
reasonable notice of the suit; and (2) that service of process was not accomplished in strict
accordance with the applicable rules of procedure or the order authorizing substituted service. 
The Walkers perfected this appeal from the trial court's summary judgment denying their bill of
review.


STANDARD OF REVIEW
	The standards for reviewing a summary judgment are well established:


1.	The movant for summary judgment has the burden of showing that there is
no genuine issue of material fact and that it is entitled to judgment as a
matter of law.

2.	In deciding whether there is a disputed material fact issue precluding
summary judgment, evidence favorable to the non-movant will be taken as
true.

3.	Every reasonable inference must be indulged in favor of the non-movant and
any doubts resolved in its favor.


Nixon v. Mr. Property Mgt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
	A petitioner for bill of review must ordinarily plead and prove three elements:  (1)
a meritorious defense to the cause of action alleged to support the judgment, (2) which the movant
was prevented from making by the fraud, accident, or wrongful act of the opposite party, (3)
unmixed with any fault or negligence on the part of the movant.  Ortega v. First RepublicBank
Fort Worth, 792 S.W.2d 452, 453 (Tex. 1990); Alexander v. Hagedorn, 226 S.W.2d 996, 998
(Tex. 1950).  The Walkers, however, sought to have the default judgment set aside on a different
ground:  that the trial court did not have personal jurisdiction over R. Walker at the time it
rendered the default judgment because process had not been properly served on him.  See Peralta
v. Heights Medical Center, Inc., 485 U.S. 80 (1988).  Therefore, in order to support a summary
judgment in this case, the record must show that proper service of process was had as a matter
of law and that there is no genuine issue of material fact as to that matter.


REASONABLY CALCULATED TO GIVE NOTICE
	As stated above, R. Walker asserts that he did not have actual notice of the
underlying suit before the trial court's rendition of default judgment against him.  Such lack of
notice, however, does not necessarily void the judgment.  Due process requires only that the
method of notice utilized be reasonably calculated, under the circumstances, to apprise an
interested party of the pendency of the action and afford the party the opportunity to present
objections.  Peralta, 485 U.S. at 84-85.
	The record in the present case reveals that after numerous unsuccessful attempts
by the Receiver to serve process on R. Walker at his business and residential addresses, the trial
court permitted substituted service pursuant to Rule 106:


	(b)  Upon motion supported by affidavit stating the location of the
defendant's usual place of business or usual place of abode or other place where
the defendant can probably be found and stating specifically the facts showing that
service has been attempted under either (a)(1) or (a)(2) at the location named in
such affidavit but has not been successful, the court may authorize service

		(1)  by leaving a true copy of the citation, with a copy of the petition
attached, with anyone over sixteen years of age at the location specified in such
affidavit, or


		(2)  in any other manner that the affidavit or other evidence before
the court shows will be reasonably effective to give the defendant notice of the suit.


Tex. R. Civ. P. 106.  In granting the substituted service, the trial court ordered


that service upon Defendant Robert H. Walker in this cause be by Richard
Grayum, a disinterested adult, by leaving a true cipy [sic] of the citation, with a
cipy [sic] of the petition in this cause attached, with anyone over sixteen (16) years
of age at La Reata Ranch, 2555 Shepherd Rees Road, Kerrville, Texas, a place
where Defendant Robert H. Walker may probably be found.


	The Walkers assert that:  (1) leaving a copy of the citation with someone at La
Reata Ranch was not reasonably calculated to give R. Walker notice of the suit; and (2) the
Receiver fraudulently obtained the order authorizing substituted service because it knew that R.
Walker was out of the country at the time and therefore knew that he probably could not be found
at La Reata Ranch.  Having reviewed the summary-judgment record, we conclude that both
arguments are without merit.
	First, there is evidence that the Walkers designated La Reata Ranch as their
residential homestead in December 1988.  The Receiver attached a copy of the Walkers'
homestead designation to its motion for substituted service.  In addition, the record contains the
sworn testimony of three witnesses, including two sons of R. Walker, that R. Walker had made
La Reata Ranch his residence in December 1988 and that it was the best place to locate him at the
time the Receiver was attempting to serve him with process.  This evidence went uncontradicted
by any competent summary-judgment evidence except for the Walkers' fraud allegations, which
we determine to be legal conclusions wholly unsupported by the record. Therefore, based on the
record in this case, we conclude that as a matter of law substituted service of process on R.
Walker at La Reata Ranch was a method of notice that was reasonably calculated, under the
circumstances, to apprise R. Walker of the pendency of the action and afford him the opportunity
to present objections.


COMPLIANCE WITH PROCEDURAL REQUIREMENTS
	The Walkers further argue that even if it was reasonable to authorize substitute
service of process on R. Walker at La Reata Ranch, the Receiver failed to comply with the
requirements of the Rules of Civil Procedure and the order authorizing substitute service.  The
Walkers argue that there are three defects in the officer's return of citation:  (1) the officer's
return was not verified as required by the order; (2) the officer's return failed to show that the
officer left the citation with an individual over the age of sixteen; and (3) the officer's return failed
to show that the officer left the citation at La Reata Ranch.  Even if we assume, however, that the
officer's return contained those defects, on January 4, 1991, after notice and hearing, the court
below signed an order permitting the officer's return to be amended pursuant to Rule 118 of the
Texas Rules of Civil Procedure.  The amendments to the officer's return rectified the alleged
omissions; therefore, the dispositive issues are whether the trial court properly allowed
amendment of the officer's return and what effect the amended return has on the default judgment.
	Rule 118 provides the following:


 At any time in its discretion and upon such notice and on such terms as it
deems just, the court may allow any process or proof of service thereof to be
amended, unless it clearly appears that material prejudice would result to the
substantial rights of the party against whom the process issued.


Tex. R. Civ. P. 118 (emphasis added).  The Rule authorizes the trial court to amend proof of
service "at any time," with the only limitation being material prejudice to the defendant's
substantial rights. (1)  Thus, the court below had jurisdiction to allow amendment of the proof of
service pursuant to Rule 118, even though some twenty-two months had passed since the default
judgment became final.  Therefore, we now discuss whether the trial court properly allowed the
amendment of the return.


1.  Amendment Properly Allowed?
	The Walkers do not challenge the propriety of the trial court's order permitting the
officer's return to be amended to show that the citation was actually left with someone over the
age of sixteen at La Reata Ranch.  Rather, the Walkers focus on the "verification" requirement. 
They argue that verification of the officer's return is a substantive requirement of proper service
of process and, therefore, a court cannot properly use Rule 118 to allow an officer to verify his
return after the rendering of a default judgment.  We disagree.
	As recently stated by the Texas Supreme Court, Rule 118 gives a trial court express
authority "to allow amendment of the return to reflect the service that was actually had." 
Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695, 696 (Tex. 1990).  The
Walkers to not dispute the fact that the Receiver left a copy of the citation with a person over the
age of sixteen at La Reata Ranch.  Nor do they argue that the return cannot be amended to reflect
these facts.  Indeed, it is clear that such amendments are proper under Rule 118.  See
Higginbotham, 796 S.W.2d at 696-97; Mylonas v. Texas Commerce Bank-Westwood, 678 S.W.2d
519, 522-23 (Tex. App. 1984, no writ); Bavarian Autohaus, Inc. v. Holland, 570 S.W.2d 110,
113 (Tex. Civ. App. 1978, no writ); Employer's Reinsurance Corp. v. Brock, 74 S.W.2d 435,
437-38 (Tex. Civ. App. 1934, writ dism'd).
	In light of the fact that the return can be amended to add or change substantive
facts, it would be incongruous to conclude that an officer cannot also amend a return to verify
facts already contained therein.  Indeed, as pointed out by the trial court, any time an officer
amends a return, he or she must verify the return as amended.  The Walkers have cited no
authority to support their position that verification is not a proper amendment under Rule 118;
therefore, we find their argument without merit and conclude that as a matter of law the trial court
was authorized to allow the amendment of the officer's return to reflect the service actually had
and to allow verification of the facts contained therein.  We also conclude as a matter of law that
the amendment of the return did not materially prejudice any substantial rights of the Walkers.


2.  Relation Back of the Amended Return
	Finally, the Walkers argue that even if the return was properly amended, no default
judgment can be granted under Rule 107 until proof of service, as required by the order
authorizing substitute service, has been on file with the clerk of the court for at least ten days. 
See Tex. R. Civ. P. 107.  The order authorizing substitute service in this case required that the
officer's return of service be verified; therefore, the Walkers argue, even if the return can be
amended to satisfy the verification requirement of the order, the default judgment must be set
aside because proof of service as required by the order was not on file with the clerk at least ten
days before the default judgment was entered.  This argument is without merit as well.
	The law is clear that when a return is amended under Rule 118, the amended return
relates back and is regarded as filed when the original return was filed.  See Higginbotham, 796
S.W.2d at 696-97; Bavarian Autohaus, 570 S.W.2d at 113; Lafleaur v. Switzer, 109 S.W.2d 239,
241 (Tex. Civ. App. 1937, no writ); Employer's Reinsurance Corp., 74 S.W.2d at 438.  The
original return was filed at least ten days before the default judgment was entered; therefore, Rule
107 was satisfied.


CONCLUSION
	In conclusion, we quote from a previous opinion of this Court:


The purpose of citation is to give proper notice, to those entitled thereto, of the
matter to be determined by the court, and the place and time of such hearing.  This
necessarily involves two elements: (1) The service of the process; and (2) the
return of the officer, showing that he has complied with the law.  It is the service,
and not the return, which gives the court jurisdiction over the defendant.  . . . The
return of citation is but the certificate of the officer as to where, when and how it
was executed.  And such return, if erroneous, may be subsequently corrected.


Gunter's Unknown Heirs & Legal Representatives v. Lagow, 191 S.W.2d 111, 113 (Tex. Civ.
App. 1945, writ ref'd).  Thus, based on our foregoing discussion, we conclude that as a matter
of law the trial court had personal jurisdiction over R. Walker at the time it rendered the default
judgment against him.  Therefore, the court did not err in granting summary judgment denying
the Walkers' bill of review.
	We overrule the Walkers' points of error and affirm the trial court's judgment.



  
					J. Woodfin Jones, Justice
[Before Justices Jones, Kidd and B. A. Smith]
Affirmed
Filed:   April 1, 1992
[Publish]
1.      1  Courts have held that a trial court loses jurisdiction to allow amendments under Rule 118
if a writ-of-error appeal has been perfected.  See Zaragoza v. De La Paz Morales, 616 S.W.2d
295, 296 (Tex. Civ. App. 1981, writ ref'd n.r.e.), and cases cited therein.  However, no
petition for writ of error was filed in this case; therefore, we need not address the soundness
of those holdings.

