                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00319-CV


MYRMAC CORPORATION A/K/A                                           APPELLANT
MCDONALDS

                                       V.

P.H., INDIVIDUALLY AND AS NEXT                                      APPELLEE
FRIEND OF C.H.

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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CV15-0078

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                        MEMORANDUM OPINION1

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      Appellant MYRMAC Corporation a/k/a McDonalds (McDonalds) appeals

from the trial court’s default judgment entered against it. Because the service

requirements of the rules of civil procedure were not strictly complied with, we




      1
      See Tex. R. App. P. 47.4.
reverse the trial court’s judgment and remand to that court for further

proceedings.

      On January 21, 2015, Appellant P.H. (Mother), individually and as next

friend of her son C.H., filed a negligence action against McDonalds, alleging that

C.H. was injured as a result of a dangerous condition on its playground. In her

petition, Mother alleged that McDonalds could be served with process through its

registered agent, Judith Savage, at an address in Weatherford, Texas.

      On September 22, 2015, the district clerk issued citation to “MYRMAC

Corporation aka McDonalds” through Savage as its agent at the Weatherford

address. See Tex. R. Civ. P. 99. The citation was accompanied by a copy of

Mother’s petition.   That same day, the clerk completed a return of service,

showing that she had served the citation and petition by certified mail, return

receipt requested, on “MYRMAC Corporation” but at an address in Chicago,

Illinois. See Tex. R. Civ. P. 106(a)(2), 107. No agent for service was listed.

      The return receipt reflected that the petition had been served on

McDonalds through its agent, Savage, three days later at the Weatherford

address; however Irma Medina signed the receipt without noting whether she

was an agent or the addressee. See Tex. R. Civ. P. 107(c). The return receipt

was filed in the trial court on September 28, 2015.

      McDonalds did not answer Mother’s petition.         On February 16, 2016,

Mother requested that the trial court set a date for a “default hearing,” and the

trial court set the requested hearing for April 5, 2015. McDonalds did not appear

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for the hearing, and Mother put on evidence regarding C.H.’s fall on the

playground, his resulting injuries, and their damages. On April 21, 2016, the trial

court entered a default judgment in favor of Mother and awarded damages of

$55,000 “for reasonable and necessary medical expenses and pain and

suffering.” See Tex. R. Civ. P. 239, 241. Mother certified that McDonalds’s last

known mailing address was the Weatherford address, and notice of the default

judgment was sent to that address. See Tex. R. Civ. P. 239a. On August 31,

2016, McDonalds filed a notice of restricted appeal and now argues that service

of process was defective, rendering the default judgment void. See Tex. R. App.

P. 30. Mother has not filed a brief in response to McDonalds’s arguments.

      To prevail in its restricted appeal, McDonalds must show that (1) a notice

of appeal was filed within six months of the date the complained-of judgment was

signed; (2) McDonalds was a party to the suit but did not participate in the

hearing that resulted in the judgment; (3) McDonalds did not timely file a

postjudgment motion, request findings of fact and conclusions of law, or file a

notice of appeal within the time permitted under rule of appellate procedure

26.1(a); and (4) the complained-of error is apparent from the face of the appellate

record. See Tex. R. App. P. 26.1(c), 30; Watson v. Watson, 286 S.W.3d 519,

522 (Tex. App.—Fort Worth 2009, no pet.); Arnell v. Arnell, 281 S.W.3d 549, 551

(Tex. App.—El Paso 2008, no pet.); see also Etheredge v. Hidden Valley Airpark

Ass’n, Inc., 169 S.W.3d 378, 381 (Tex. App.—Fort Worth 2005, pet. denied) (op.

on reh’g) (stating restricted appeal requirements should be “liberally construed”).

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The only element at issue in this appeal is whether McDonalds’s complained-of

error is apparent from the face of the record.

       Service of citation must be in strict compliance with the rules of civil

procedure to establish jurisdiction over a defendant and support a default

judgment. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994);

Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). As such, the return of service

on McDonalds had to meet the requirements set by rule 107. Tex. R. Civ. P.

107.   As relevant here, rule 107 requires that the return, “together with any

document to which it is attached,” reflect the person or entity served and the

address served. Tex. R. Civ. P. 107(b)(5)–(6). Further, the rule mandates that if

citation was served by certified mail, the return must be accompanied by the

return receipt that contains the addressee’s signature. Tex. R. Civ. P. 107(c). In

an attack on a default judgment by restricted appeal, we make no presumptions

in favor of a valid issuance, service, or return of citation. See Primate Constr.,

884 S.W.2d at 152; GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 59

(Tex. App.—Fort Worth 2003, pet. denied). In its two issues, McDonalds argues

that the return was defective because (1) the return receipt was not signed by the

addressee and (2) the address stated in the return did not match the address

stated in the citation and petition.

       As we previously recognized, the return receipt, which reflected the

Weatherford address for McDonalds and its agent, was signed by Irma Medina.

The record contains no information regarding who Irma Medina is or whether she

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was an authorized agent of the addressee for service of process. See Reed

Elsevier, Inc. v. Carrollton-Farmers Branch ISD, 180 S.W.3d 903, 905 (Tex.

App.—Dallas 2005, pets. denied) (holding record must show whether agent was

authorized to receive service for corporation). “If the individual who signs the

receipt of delivery is not the addressee or an agent otherwise capable of

receiving service, service of process is fatally flawed.”   McClure v. Life Time

Fitness, Inc., No. H-13-1794, 2014 WL 801075, at *4 (S.D. Tex. Feb. 28, 2014)

(interpreting Tex. R. Civ. P. 107(c)); see also Master Capital Solutions Corp. v.

Araujo, 456 S.W.3d 636, 640 (Tex. App.—El Paso 2015, no pet.). The return

receipt in this case was not signed by the addressee’s agent—Savage—and

there is no information regarding the authority of Irma Medina; thus, service was

not effectively completed on McDonalds, divesting the trial court of personal

jurisdiction over it. See $9,000 U.S. Currency v. State, No. 06-14-00041-CV,

2014 WL 5490946, at *2 (Tex. App.—Texarkana Oct. 30, 2014, no pet.) (mem.

op.); Reliant Capital Solutions, LLC v. Chuma-Okorafor, No. 03-11-00422-CV,

2013 WL 4487529, at *2–3 (Tex. App.—Austin Aug. 14, 2013, no pet.) (mem.

op.). We sustain McDonalds’s first issue.2

      This deficiency in service of process mandates that the default judgment

cannot stand. See Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d

884, 885 (Tex. 1985). Accordingly, we reverse the trial court’s default judgment

      2
       We need not address McDonalds’s second issue attacking the address
discrepancy between the return and the citation. See Tex. R. App. P. 47.1.

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and remand to that court for further proceedings. See Tex. R. App. P. 43.2(d),

43.3(a).


                                                /s/ Lee Gabriel

                                                LEE GABRIEL
                                                JUSTICE

PANEL: GABRIEL, SUDDERTH, and KERR, JJ.

DELIVERED: March 30, 2017




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