

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                          Order
 
Shari Fazio
Appellant
Vs.                   No. 11-02-00319-CV  -- 
Appeal from Taylor County
Sharyl Newman
Appellee
 
Our former opinion and
judgment dated June 18, 2003, are withdrawn, and our opinion and judgment dated
July 10, 2003, are substituted therefor.
 
JIM R. WRIGHT
JUSTICE
 
July 10, 2003
Do not publish this page only.  See TEX.R.APP.P. 47.2(a).
Panel consists of:  Arnot, C.J.,
and
Wright, J., and McCall, J.
 
 
 




                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Shari Fazio
Appellant 
Vs.                   No.
11-02-00319-CV B Appeal from Taylor County
Sharyl Newman
Appellee
 
This is an
appeal from a default judgment in a slip-and-fall case.  We reverse and remand. 
Sharyl
Newman sued Shari Fazio and others for injuries she sustained in a fall at Big
5 Sporting Goods in Abilene.  Newman
alleged in her petition that Fazio was an owner of the premises at all times
material to the cause of action.  Newman
further alleged in her petition that Fazio and others were negligent in various
functions pertaining to the premises. 
Fazio
resides in California.  The District
Clerk of Taylor County issued a citation to Fazio on April 10, 2002.  The citation was sent by certified mail to
Fazio in California. The district clerk filed the return of service on April
19, 2002.  Attached to the return was
the return receipt purportedly signed by Fazio on April 16, 2002.  Fazio did not file an answer within the time
period required by law.  Newman filed a
motion to sever the cause of action against Fazio from her claims against the
other defendants.  The trial court
granted the motion on May 24, 2002, and it also entered a default judgment
against Fazio for $650,000.  On June 3,
2002, Fazio filed an answer.  On October
24, 2002, Fazio filed a notice for restricted appeal. 
In her
first issue on appeal, Fazio contends that there was error on the face of the
record because the return was fatally defective, that the pleadings failed to
satisfy due process, and that the severance was improperly granted. 




An
appellant must establish the following four elements in order to be successful
in a restricted appeal:  (1) that the
petition is brought within six months from the signing of the judgment;  (2) that the party filing the petition was a
party to the lawsuit;  (3) that the
party did not participate in the trial on the merits;  and (4) that there is error apparent on the face of the
record.  TEX.R.APP.P. 30; Campbell v.
Fincher, 72 S.W.3d 723 (Tex.App. B Waco 2002, no pet=n).  Restricted appeals replace
the former writ of error 
procedure.   A restricted appeal,
like an appeal by writ of error, is a direct attack.  Lewis v. Ramirez, 49 S.W.3d 561 (Tex.App. B Corpus Christi 2001, no pet=n). Whether an error on the face of the
record exists is determined by a consideration of all papers on file in the
record.  Norman Communications v. Texas
Eastman Company, 955 S.W.2d 269, 270 (Tex.1997). 
A default
judgment cannot stand when service was not had in strict compliance with the
Texas Rules of Civil Procedure.  There
is no presumption in favor of valid issuance, service, and return of citation
in the face of a direct attack on a default judgment. Primate Construction,
Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994).  Strict compliance with the Texas Rules of Civil Procedure
relating to the issuance, service, and return of citation must be shown on the
face of the record, or the attempted service of process will be rendered
invalid and of no effect.  Uvalde
Country Club v. Martin Linen Supply Company, Inc., 690 S.W.2d 884, 885
(Tex.1985).   
TEX.R.CIV.P.
108 governs the form of notice, type of service, and the form of return for
nonresidents and for those who are absent from the State and states in part:
Where the
defendant is absent from the State, or is a nonresident of the State, the form
of notice to such defendant of the institution of the suit shall be the same as
prescribed for citation to a resident defendant; and such notice may be served
by any disinterested person competent to make oath of the fact in the same
manner as provided in Rule 106 hereof. 
The return of service in such cases shall be endorsed on or attached to
the original notice, and shall be in the form provided in Rule 107, and be
signed and sworn to by the party making such service before some officer
authorized by the laws of this State to take affidavits, under the hand and
official seal of such officer. 
 




A return in the manner
provided by TEX.R.CIV.P. 107 must contain the signature of the authorized
person or officer executing the return, state when the citation was served,
state the manner of service, and contain the return receipt with the addressee=s signature when served by registered or
certified mail; and, if the citation was not served, there also must be a showing
of due diligence.  However, Rule 108,
which governs this case, additionally requires that the return be sworn to by
the person serving the citation before an officer authorized to take affidavits
under the hand and official seal of such officer.  Rule 108.  The other rules
regarding citation make differentiations with regard to sheriffs, constables,
clerks, authorized persons, and officers. 
Rule 108 does not make those differentiations; and the person,
regardless of whom that may be, must swear to the return. 
In this
case, it is not in dispute that the appeal was brought within six months of the
default judgment, that Fazio was a party to the suit, and that she did not
participate in the trial.  In connection
with the last element, we agree with Fazio that the return was fatally
defective.  The return contained the
signature of the clerk and the time and place service was executed, but was not
sworn to by the clerk who made the service. 
Because there was not strict compliance with Rule 108, we find that the
default judgment against Fazio cannot stand. 
Fazio=s first issue on appeal is sustained.  Because our holding on the first issue is
dispositive of this appeal, we do not need to address Fazio=s remaining issues. 
The
judgment of the trial court is reversed and remanded.[1]  
 
JIM
R.WRIGHT
JUSTICE
 
July 10, 2003
Panel consist of: Arnot, C.J., and
Wright, J., and McCall, J.
 




[1]See generally WILLIAM V. DORSANEO, III ET AL., TEXAS
LITIGATION GUIDE ' 31.21(5) (2002).


