                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00144-CV


IN RE FARMERS INSURANCE                                               RELATOR
EXCHANGE




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                           ORIGINAL PROCEEDING

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                        MEMORANDUM OPINION 1

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      Relator Farmers Insurance Exchange (Farmers), a nonparty to the

underlying lawsuit, seeks mandamus relief from the trial court’s March 7, 2013

final default judgment rendered against it and Timothy and Valena Warner (the

Warners), the only remaining defendants in a lawsuit alleging negligence and

other causes of action related to the death of one child and personal injuries to

another child. The children had previously been removed from their parents’

      1
       See Tex. R. App. P. 47.4.
custody by the Texas Department of Family and Protective Service, and the

Warners were serving as the children’s foster parents at the time of the incidents

forming the basis of the lawsuit. 2

      Farmers is an insurer that had issued a homeowners policy to the

Warners, but Farmers was never named as a party to either of the consolidated

lawsuits and was never served with citation. However, the final default judgment

purports to render judgment against Farmers for $20 million as follows:

      [T]hat the Plaintiff . . . recover against the defendants Valena Warner
      and Timothy Warner money damages of twenty million dollars
      ($20,000,000.00) apportioned as five million dollars ($5,000,000.00)
      for each Plaintiff in this case of which both Valena Warner and
      Timothy Warner shall be held jointly and severally liable to the
      Plaintiffs. The full amount of liability insurance and any awarded
      additional amounts in this Final Judgment shall be paid by Farmer[s]
      Insurance . . . or [by] Timothy Warner or Valena Warner.

             The [Plaintiff] by and through her attorney, may take further
      reasonable actions to collect for the Plaintiffs the full monetary
      judgment of twenty million dollars (five million dollars for each
      Plaintiff) from Farmers Insurance by demand and/or from Timothy
      Warner and/or Valena Warner for the full amount of this monetary
      judgment, individually or jointly.

The judgment also recites that the plaintiffs had previously settled with all other

defendants in the consolidated cases.




      2
         The lawsuit began as two separate suits, one brought in probate court by
one set of plaintiffs and the other brought in district court by another set of
plaintiffs. The district court case was transferred to probate court, and the two
lawsuits were consolidated. The final default judgment brought the consolidated
lawsuits to a conclusion.


                                      2
      Farmers filed a petition for writ of mandamus, which included a motion for

emergency relief, in this court on April 26, 2013, and this court issued a stay of

execution of the final default judgment as to Farmers on April 29, 2013. See Tex.

R. App. P. 52.10(b) (authorizing court of appeals to grant “any just relief pending

the court’s action on the petition”). We also requested that the real parties in

interest file a response to Farmers’s petition. See Tex. R. App. P. 52.8(b). Real

parties in interest filed responses in which they concede that Farmers was

“inadvertently and incorrectly named” as a liable defendant in the judgment. Both

responses request that “the judgment be vacated and set aside to the extent that

it names [Farmers] as a party.” Farmers has also filed a reply.

      Before a trial court may properly render a default judgment, the record

must reflect that the trial court has jurisdiction over the subject matter and the

parties and that the case is ripe for judgment. Finlay v. Jones, 435 S.W.2d 136,

138–39 (Tex. 1968) (orig. proceeding); Marrot Commc’ns, Inc. v. Town & Country

P’ship, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

Unless the record affirmatively shows “at the time the default judgment is

entered” an appearance by the defendant, proper service of citation, or a written

memorandum of waiver, the trial court does not have in personam jurisdiction to

render a default judgment against the defendant. Marrot Commc’ns, 227 S.W.3d

at 376. A judgment is void if the trial court had no jurisdiction over a party, and

mandamus relief is proper when a trial court renders a void judgment. See Cook



                                    3
v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987) (op. on reh’g); see also In re Sw.

Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).

      Here, the trial court did not have jurisdiction over Farmers because

Farmers was never served with process.            See Kawasaki Steel Corp. v.

Middleton, 699 S.W.2d 199, 200 (Tex. 1985) (explaining that a plaintiff invokes

the trial court’s “jurisdiction by valid service of process on the defendant”);

Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (stating

that “a judgment is void only when it is shown that the court had no jurisdiction of

the parties”). Thus, the final default judgment, as to Farmers, is void.

      Because the March 7, 2013 final default judgment is void as to Farmers,

we lift our April 29, 2013 stay order and conditionally grant Farmers’s petition for

writ of mandamus. We direct the trial court to vacate the final default judgment

as it relates to Farmers. Our writ will issue only if the trial court fails to do so

within fourteen days.




                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: May 23, 2013




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