                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00138-CV

MIDSTATE ENVIRONMENTAL SERVICES, LP
AND JOHN DOE EMPLOYEE OF MIDSTATE
ENVIRONMENTAL SERVICES, LP,
                                                            Appellants
v.

KAYCI PETERSON, INDIVIDUALLY AND AS
NEXT FRIEND OF G.P., W.P., AND G.P.,
                                                            Appellee


                           From the 82nd District Court
                                Falls County, Texas
                          Trial Court No. 12-08-38275-CV


                                      OPINION


      Midstate Environmental Services, LP, pursues a restricted appeal from a default

judgment rendered against it and in favor of Kayci Peterson, Individually and as next

friend of Graham Peterson, Wellington Peterson, and Genevieve Peterson. Because the

trial court erred in granting the default judgment, the trial court’s judgment is reversed

and this case is remanded to the trial court for further proceedings.
RESTRICTED APPEAL

       A restricted appeal is a direct attack on the judgment. Barker CATV Constr., Inc.

v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.] 1999, no pet.). To

prevail on a restricted appeal, the appellant "must establish that: (1) it filed notice of the

restricted appeal within six months after the judgment was signed; (2) it was a party to

the underlying lawsuit; (3) it did not participate in the hearing that resulted in the

judgment complained of and did not timely file any post-judgment motions or requests

for findings of fact and conclusions of law; and (4) error is apparent on the face of the

record." Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); TEX. R. APP. P. 30.

Only the fourth element is at issue in this case.

       The "face of the record" in a restricted appeal consists of the papers on file with

the trial court when it rendered judgment.          See General Elec. Co. v. Falcon Ridge

Apartments, 811 S.W.2d 942, 944 (Tex. 1991). We may not consider evidence unless it

was before the trial court when it rendered judgment. Id.; Laidlaw Waste Sys., Inc. v.

Wallace, 944 S.W.2d 72, 73 (Tex. App.—Waco 1997, writ denied).

SERVICE OF THE DEFENDANT

       Midstate argues in its first issue that the trial court erred in granting a default

judgment because there were defects in both the citation and the return of citation.

       A default judgment can only be sustained if the record before the trial court

affirmatively shows that the defendant was served in strict compliance with the Texas


Midstate Environmental Services, LP v. Peterson                                         Page 2
Rules of Civil Procedure. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)

(per curiam). "In contrast to the usual rule that all presumptions will be made in

support of a judgment, there are no presumptions of valid issuance, service, and return

of citation when examining a default judgment." Barker CATV Constr., 989 S.W.2d at

792; see also Primate Constr., Inc., 884 S.W.2d at 152. Rendition of a default judgment

when there is a failure to strictly comply with the Rules of Civil Procedure regarding

service constitutes reversible error on the face of the record. See Ins. Co. of State of Pa. v.

Lejeune, 297 S.W.3d 254, 256 (Tex. 2009).

       It is the responsibility of the one requesting service to see that service is properly

accomplished. Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 75 (Tex. App.—Waco

1997, writ denied). This responsibility extends to assuring that service is properly

reflected in the record. Id. If the record before the trial court does not affirmatively

show, at the time that default judgment is rendered, that the defendant has appeared,

was properly served, or waived service in writing, the trial court lacks personal

jurisdiction over the defendant. Marrot Commc'ns, Inc. v. Town & Country P'ship, 227

S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).              Virtually any

deviation from the requisites of statutes and Rules of Civil Procedure for service of

process will destroy a default judgment. Nueces County Housing Assistance, Inc. v. M &

M Resources Corp., 806 S.W.2d 948, 949 (Tex. App.—Corpus Christi 1991, writ denied).




Midstate Environmental Services, LP v. Peterson                                          Page 3
Defects

       We agree there were defects in both the citation and the return of citation.

The Citation

       One of the most glaring defects as to the citation is the lack of a seal. While

language in the citation recites that it was “issued and given under my hand and seal of

said court…” (emphasis added), there is no seal visible on the copy of the original

citation in the clerk’s record. The citation “shall . . . be signed by the clerk under seal of

court...” TEX. R. CIV. P. 99(b)(2). Because we cannot presume a seal exists on the

citation, the absence of a seal renders the original citation invalid. Paramount Credit, Inc.

v. Montgomery, ___ S.W.3d ___, 2013 Tex. App. LEXIS 15289, *15 (Tex. App.—Houston

[1st Dist.] Dec. 19, 2013, no pet. h.); Verlander Enters., Inc. v. Graham, 932 S.W.2d 259, 262

(Tex. App.—El Paso 1996, no pet.). Contra, Consol. Am. Indus. v. Greit-Amberoaks, L.P.,

No. 03-07-00173-CV, 2008 Tex. App. LEXIS 9272, *5 (Tex. App.—Austin Dec. 12, 2008,

no pet.) (requirement met when citation is signed by a deputy of the district court, as

"issued and given under my hand and the seal of said court") (mem. op.). Accordingly,

we join those courts that have held the absence of a seal is a defect in service that would

make a default judgment improper.

       Further, the citation is not “directed to the defendant.” TEX. R. CIV. P. 99(b)(8).

Instead, it is directed to National Registered Agents, Inc. According to the return, this is

Midstate’s registered agent. National Registered Agents, Inc. is not a defendant in


Midstate Environmental Services, LP v. Peterson                                         Page 4
Peterson’s original petition. Peterson faults Midstate for not citing any cases on point

with this particular requirement. Nor could we find any cases with this particular

defect. However, there are a number of cases in which a minute discrepancy between

the named defendant on the citation and the person or entity listed on the return to

whom the citation had been delivered required a reversal. See e.g., Uvalde Country Club

v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam) (petition

identified the registered agent for service as "Henry Bunting, Jr." but the citation and

return reflected delivery to "Henry Bunting"); Hendon v. Pugh, 46 Tex. 211, 212 (1876)

(petition identified the defendant as "J.W. Hendon" but return reflected delivery to "J.N.

Hendon"); Rone Eng'g Serv., Ltd. v. Culberson, 317 S.W.3d 506, 508-09 (Tex. App.—Dallas

2010, no pet.) (citation issued to "Rone Engineers, Ltd." but final default judgment was

entered against "Rone Engineering Service, Ltd."); Hercules Concrete Pumping Serv., Inc.

v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 310 (Tex. App.—Houston [1st

Dist.] 2001, pet. denied) (citation issued to "Hercules Concrete Pumping Service, Inc."

but return reflected delivery to "Hercules Concrete Pumping"). With these cases in

mind, there can be no doubt that a complete discrepancy between the defendant listed

in the petition and the entity or person that the citation is directed to is a defect in

service. Accordingly, we hold that the failure to direct the citation to the defendant

named in the petition is a defect that would preclude a default judgment.




Midstate Environmental Services, LP v. Peterson                                     Page 5
The Return of Citation

        As to the return of citation, there is no indication on the return itself that it was

ever filed with the clerk of the court, let alone that it was on file for ten days. See TEX. R.

CIV. P. 107(h). Peterson responds that the return was attached to the citation on which

there is a file-mark stamp from the clerk showing the citation was filed on September

17, 2012, long before the hearing on the default judgment was held.1 However, the

return need not be attached to the citation, id. (a), and there is no indication in the

record that the return was attached to the citation and filed by the clerk. We cannot

presume that it was. See Primate Constr., Inc., 884 S.W.2d at 152; Barker CATV Constr.,

989 S.W.2d at 792. Thus, this is also a defect that would preclude a default judgment.

Diligence or Lack of Negligence

        Peterson argues that Midstate failed to exercise due diligence in discovering the

default judgment. However, a restricted appeal appellant is not required to show

diligence or lack of negligence before its complaints will be heard. Texaco v. Central

Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996). Further, even if Midstate had actual

notice of the lawsuit and pending hearing, actual notice to a defendant, without proper

service, is not sufficient to give the court jurisdiction to render default judgment against

the defendant. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Rather, personal



1Peterson also attaches to her brief a document in an attempt to show that the return was on file for more
than ten days. This document is not included in the appellate record, and we cannot consider it. See
Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001).

Midstate Environmental Services, LP v. Peterson                                                    Page 6
jurisdiction as necessary for a proper default judgment is dependent upon citation

being issued, delivered, and returned in the manner required by law. See id.

CONCLUSION

       Based on the record before the trial court at the time the default judgment was

rendered, there were a number of defects in the citation and return; therefore, the trial

court erred in granting the default judgment. Thus, Midstate has established on appeal

that there is error apparent on the face of the record. Having so held, we need not

consider Midstate’s second issue regarding the absence of a reporter’s record for the

hearing on unliquidated damages.

       Midstate’s first issue is sustained. We reverse the judgment of the trial court and

remand this case for further proceedings.




                                                  TOM GRAY
                                                  Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed February 20, 2014
[CV06]




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