

 
 





 NUMBER 13-07-135-CV

COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 
HOUSTON PRECAST, INC.,					          Appellant,

v.


McALLEN CONSTRUCTION, INC.,	  Appellee.




On appeal from the County Court at Law No. 2

 of Hidalgo County, Texas.

 


MEMORANDUM OPINION


Before Chief Justice Valdez, Yañez and Benavides

Memorandum Opinion by Justice Yañez


 Appellant, Houston Precast, Inc. ("Houston"), appeals a default judgment granted
in favor of appellee, McAllen Construction, Inc. ("McAllen).  By two issues, Houston
contends the trial court (1) lacked jurisdiction to render the default judgment, and (2) 
abused its discretion in denying its motion for new trial.  We reverse and remand.
Background

 On October 26, 2006, McAllen filed suit against Houston, alleging breach of contract
and other claims arising out of Houston's alleged failure to provide certain materials needed
for McAllen's work on a construction project. On November 28, 2006, McAllen obtained a
default judgment.  That same day, Houston filed an answer by placing it in the mail to the
court; Houston's counsel also faxed a copy of the answer to McAllen's counsel. 
	The following day, Houston's counsel learned of the default judgment.  McAllen
refused to set aside the default judgment, and Houston filed a motion to set aside the
default judgment and for new trial.  The motion stated that because Houston's trial counsel
was notified by its client of the lawsuit on November 7, 2006, counsel was under the
"mistaken impression" that the petition was received on that date.  Houston's counsel thus
calculated the answer date as December 4, 2006, instead of the actual answer date, which
was November 27, 2006.  The trial court held a hearing on Houston's motion on February
12, 2007, and denied the motion on February 26, 2007.  This appeal ensued.
	In its first sub-issue, Houston argues the trial court lacked jurisdiction to render 
judgment against it because it was not served in strict compliance with the applicable
requirements.  Service was attempted on Houston by registered mail addressed to its
registered agent, Mike Bednar. (1)  However, the return receipt was signed not by Bednar,
but by "Irene Musselwhite." (2)  Houston thus argues that the attempted service is invalid and
that the judgment must be reversed.  Additionally, Houston argues that service is fatally
defective because the return of service form attached to the citation is not filled out or
signed; it is completely blank. (3) 
Standard of Review and Applicable Law

 Houston's claim of a defect in service of process is a challenge to the court's
personal jurisdiction over it. (4)  Whether the court had personal jurisdiction over Houston is
a question of law. (5)  When a defendant has not answered, a trial court acquires jurisdiction
over that defendant solely on proof of proper service. (6) 
	It is well settled that a default judgment cannot withstand direct attack by a
defendant who complains that he was not served in strict compliance with applicable
requirements. (7)  Likewise, there are no presumptions in favor of valid issuance, service, and
return of citation in the face of a direct attack on a default judgment. (8)  Failure to
affirmatively demonstrate strict compliance with the rules of civil procedure renders the
attempted service of process invalid and of no effect. (9)  An appellant may raise defective
service for the first time on appeal. (10) 
	 Under rule 107, when a citation is served by registered or certified mail as
authorized under rule 106, the return by the officer or authorized person must contain the
return receipt with the addressee's signature. (11)  In addition, an officer's failure to sign the
return of citation renders the return fatally defective and will not support a default judgment
on direct attack. (12)  Actual notice to a defendant, without proper service, is not sufficient to
convey upon the court jurisdiction to render default judgment against him. (13)  Rather,
jurisdiction is dependent upon citation issued and served in a manner provided by law. (14) 
Absent service, waiver, or citation, mere knowledge of a pending suit does not place any
duty on a defendant to act. (15) 
 

Discussion 

	Here, citation was issued to and served upon "Precast [o]f Houston[,] Inc[.],
Registered Agent:  Mike Bednar, 11393 Sleepy Hollow Rd[.], Conroe, Tx 77385." 
However, the return receipt was signed by "Irene Musselwhite," not by Bednar.  Therefore,
Houston argues, the attempted service of process is invalid and of no effect, and the trial
court lacked jurisdiction to render the default judgment. (16)  We agree. 
	A return of a citation served by registered or certified mail must contain the return
receipt with the addressee's signature. (17) If the return receipt is not signed by the
addressee, the service of process is defective. (18)  Here, the return receipt was signed by
"Irene Musselwhite."  Irene Musselwhite was not the addressee; therefore, the service of
process was defective.
	Moreover, it is well-established that even when service is by certified mail, return
receipt requested, the officer's return at the bottom of the citation must be filled out and
completed; a postal return receipt card alone will not support a default judgment. (19)  Here,
the return of service form is completely blank.  Because the record shows on its face that
no officer or authorized person executed the return of citation form, service was fatally
defective. (20)
	McAllen argues that Houston waived its complaint of defective service because it 
"judicially admitted that it was duly served."  We disagree.  McAllen cites several of
Houston's statements in which it acknowledged receipt of the suit documents. (21)  In Wilson,
the supreme court stated:
The distinction between actual receipt and proper service is precisely what
gives rise to the issue we address here.  We hold that a default judgment is
improper against a defendant who has not been served in strict compliance
with law, even if he has actual knowledge of the lawsuit. (22) 

We have reviewed Houston's cited statements; we conclude the statements did not
constitute a judicial admission conceding the issue of McAllen's compliance with the rules
for service of process.  
	McAllen also argues that by filing a motion for new trial, Houston "appeared" before
the trial court, and by doing so, waived service and cured any defects in service.  McAllen
cites Western Guaranty Loan Co. v. Dean in support of the proposition that the filing of a
motion for new trial constitutes an appearance. (23)  We are unpersuaded by McAllen's
argument.  
	A judgment is rendered when the decision is announced orally in open court or by
a memorandum filed with the clerk. (24)  A general appearance which waives defects in
service must precede any action of the court which such appearance validates. (25)  Here,
Houston filed its motion for new trial after the trial court rendered default judgment; thus, 
it did not constitute a general appearance which waived defects in service. (26) 
	In Wilson, the supreme court held that actual receipt of lawsuit papers--in contrast
to proper service--does not cure defective service. (27)  The defendant in Wilson, like
Houston in the present case, did not learn of the default judgment until after it had been
rendered, and upon learning of the judgment, filed a motion for new trial. (28)  The supreme
court rejected the plaintiff's argument that defects in service were cured by the defendant's
actual receipt of the lawsuit papers. (29)  If the defendant's filing of a motion for new trial in
Wilson constituted an appearance, so as to cure defective service--the argument McAllen
urges us to accept--the supreme court would have decided Wilson differently. (30)  We reject
McAllen's argument that by filing a motion for new trial, Houston appeared before the trial
court and, by doing so, cured any defects in service.
Conclusion 

	Because the record affirmatively shows that the service of citation on Houston failed
to strictly comply with rule 107, we hold that this is an error that is apparent on the face of
the record and will not support the default judgment. (31)  We therefore sustain Houston's first
issue.  The default judgment is reversed, and the cause is remanded for trial. 
	Because of our disposition of Houston's first issue, we need not address its
remaining issue. (32) 


								___________________________
 LINDA REYNA YAÑEZ,
								Justice




Memorandum Opinion delivered and filed 
this the 25th day of September, 2008.
1.  See Tex. R. Civ. P. 106(a)(2) (providing for service by "mailing to the defendant by registered or
certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached
thereto").
2.  See id. 107 (providing that "[w]hen the citation was served by registered or certified mail as
authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt
with the addressee's signature.").
3.  See id. (providing that "[t]he return of the officer or authorized person executing the citation shall
be endorsed on or attached to the same; it shall state when the citation was served and the manner of service
and be signed by the officer officially or by the authorized person.").
4.  Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.-Houston [1st Dist.] 2005, no pet.). 
5.  Coronado v. Norman, 111 S.W.3d 838, 841 (Tex. App.-Eastland 2003, pet. denied).
6.  Furst, 176 S.W.3d at 868.  
7.  See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); All Commercial Floors, Inc. v. Barton &
Rasor, 97 S.W.3d 723, 726 (Tex. App.-Fort Worth 2003, no pet.). 
8.  All Commercial Floors, 97 S.W.3d at 726.  
9.  Wilson, 800 S.W.2d at 836 (citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d
884, 886 (Tex. 1985) (per curiam)); see also Furst, 176 S.W.3d at 869 (noting that party requesting service
has responsibility to ensure that proper service is accomplished and the record reflects proper service).   
10.  All Commercial Floors, 97 S.W.3d at 725 (citing Wilson, 800 S.W.2d at 836-37) .  
11.  Id. at 726; Tex. R. Civ. P. 107.  
12.  Retail Techs., Inc. v. Palm City T.V., Inc., 791 S.W.2d 345, 347 (Tex. App.-Corpus Christi 1990,
no writ).  
13.  Wilson, 800 S.W.2d at 836.
14.  Id.  
15.  Id. at 837.
16.  See id. at 836.
17.  See Tex. R. Civ. P. 107; Sw. Sec. Servs., Inc. v. Gamboa, 172 S.W.3d 90, 93 (Tex. App.-El Paso
2005, no pet.); All Commercial Floors, 97 S.W.3d at 726-27; Keeton v. Carrasco, 53 S.W.3d 13, 19 (Tex.
App.-San Antonio 2001, pet. denied).   
18.  Sw. Sec. Servs., Inc., 172 S.W.3d at 93; All Commercial Floors, 97 S.W.3d at 726-27; Carrasco,
53 S.W.3d at 19.   
19.  See Tex. R. Civ. P. 106, 107; see also, e.g., Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72,
74 (Tex. App.-Waco 1997, writ denied); Retail Techs., Inc., 791 S.W.2d at 346-47. 
20.  See Retail Techs., Inc., 791 S.W.2d at 346-47. 
21.  For example, McAllen cites the testimony of Houston's counsel at the hearing on Houston's motion
to set aside the judgment that "[Houston's trial counsel] calculated the answer date as December 4th, when,
in fact, it turned out that he [Bednar] was served on November 2nd, Your Honor."
22.  See Wilson, 800 S.W.2d at 837; Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 65
(Tex. App.-Amarillo 1992, no pet.) ("Actual notice to a defendant without proper service is not sufficient to
convey jurisdiction upon the court to render a default judgment against him.  Rather, jurisdiction is dependent
upon citation issued and served in a manner provided for by law.").  
23.  See W. Guar. Loan Co. v. Dean, 309 S.W.2d 857, 864 (Tex. Civ. App.-Dallas 1957, writ ref'd
n.r.e.).
24.  Dan Edge Motors, Inc. v. Scott, 657 S.W.2d 822, 823 (Tex. App.-Texarkana 1983, no writ).
25.  Id. at 824 (noting that if "the record fails to show a valid issuance and service of citation to the
defendant, or a voluntary appearance prior to rendition of the default judgment, the judgment must be
reversed and the cause remanded.") (emphasis added).
26.  See id.; see also Rivers v. Viskozki, 967 S.W.2d 868, 871 (Tex. App.-Eastland 1998, no pet.)
(rejecting argument that defendant waived complaints as to improper service by filing answer and motion for
new trial after default judgment rendered); Am. Universal Ins. Co. v. D.B. & B., Inc., 725 S.W.2d 764, 766
(Tex. App.-Corpus Christi 1987, writ ref'd n.r.e.) (noting that "[u]nless the record affirmatively shows, at the
time the default judgment is entered, either an appearance by the defendant, proper service of citation on the
defendant, or a written memorandum of waiver, the trial court does not have in personam jurisdiction to enter
a default judgment against the defendant.").   
27.  See Wilson, 800 S.W.2d at 837. 
28.  Id. at 835.  
29.  Id. at 837. 
30.  See id. 
31.  See id.
32.  See Tex. R. App. P. 47.1.
