                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00088-CV

LEJ DEVELOPMENT                                                    APPELLANTS
CORPORATION AND L.E. JOWELL,
JR.

                                        V.

SOUTHWEST BANK                                                        APPELLEE


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         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION

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                                 I. Introduction

      By this restricted appeal, Appellants LEJ Development Corporation (LEJ)

and L.E. Jowell, Jr. (Jowell Jr.) seek reversal of the trial court’s September 22,

2011 default judgment against them and in favor of Appellee Southwest Bank.

Appellants argue in one issue that the trial court erred by rendering default

judgment because service of citation was allegedly defective. We affirm.
                                 II. Background

      Southwest Bank filed suit against Appellants on August 10, 2011, alleging

that LEJ had defaulted on a promissory note and that Jowell Jr. was liable on the

note as guarantor.    Citations were prepared for service, one directed to L.E.

Jowell, Jr. and the other to LEJ Development Corporation by and through L.E.

Jowell, Jr. The officer’s returns reflect that both citations were personally served

on August 18 on “L.E. Jowell,” not on “L.E. Jowell, Jr.” The returns were filed

with the court on August 22.

      On September 19, Southwest Bank filed a motion to amend the returns

and a motion for default judgment. Two amended officer’s returns, each signed

by the constable, were attached as exhibits to the motion to amend.            The

amended returns stated that L.E. Jowell, Jr. was the person on whom the

constable had effectuated service of the citations to LEJ and Jowell Jr. on August

18.

      On September 22, the trial court ordered that each of the original returns

was “[t]hereby amended to reflect that Defendant L.E. Jowell, Jr. was served”

and that LEJ “was served by and through its registered agent, L.E. Jowell, Jr.”

The trial court further ordered that the amended returns attached to Southwest

Bank’s motion to amend “should be and [were t]hereby authorized to be filed

among the papers” of the case. Also on September 22, the trial court signed the

“Final Default Judgment” against LEJ and Jowell Jr. The trial court’s handwritten

docket sheet reflects that the court signed the order granting amendment of the

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returns before signing the default judgment.         The amended returns were

subsequently filed with the trial court clerk on October 3.

      On December 7, 2011, Appellants filed a motion to fix date of notice and

for new trial in which they claimed to have first acquired actual notice of the

judgment on November 11, 2011. In an affidavit dated December 6, 2011, Jowell

Jr. averred that he had incorrectly believed that Southwest Bank had to collect its

debt from someone else before it could execute against his personal assets and

that his misunderstanding led Appellants to not file an answer. Jowell Jr. also

stated in the affidavit that he was misled into signing the loan documents at

issue. Appellants later withdrew their motion to fix date of notice and for new

trial, stating in open court their intention to instead rely upon their motion to

dismiss for lack of jurisdiction. The trial court conducted a hearing on Appellants’

motion to dismiss for lack of jurisdiction on February 2, 2012, and denied the

motion. This restricted appeal followed.

                                  III. Discussion

      Appellants argue in one issue that the trial court erred by rendering default

judgment against them because they were not properly served. Within their sole

issue, Appellants contend that rule of civil procedure 118 requires notice to the

defendant before amending returns, that the returns were not properly amended

because they were not filed with the court prior to the judgment, that allowing

amendment of the returns resulted in material prejudice to Appellants’ substantial



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rights, and that the amended returns should have been but were not attached to

the original citations.

A. Standard of Review

      In a restricted appeal, our review is limited to error that appears on the

face of the record. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d

571, 573 (Tex. 2006). When a default judgment is attacked by restricted appeal,

we do not indulge any presumptions in favor of valid issuance, service, or return

of service. Reed Elsevier, Inc. v. Carrollton–Farmers Branch Indep. Sch. Dist.,

180 S.W.3d 903, 905 (Tex. App.—Dallas 2005, pet. denied). Strict compliance

with the procedural rules governing citation and return of service must

affirmatively appear on the record if the default judgment is to withstand direct

attack. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Failure

to show strict compliance on the face of the record renders any attempted

service invalid and requires that we set aside the default judgment.       Reed

Elsevier, Inc., 180 S.W.3d at 905–06. But “strict compliance with the rules does

not require ‘obeisance to the minutest detail.’” Williams v. Williams, 150 S.W.3d

436, 443–44 (Tex. App.—Austin 2004, pet. denied). As long as the record as a

whole shows that the citation was served on the defendant, service of process

will not be invalidated. Id. at 444. Whether service strictly complied with the

rules is a question of law that we review de novo. Furst v. Smith, 176 S.W.3d

864, 869–70 (Tex. App.—Houston [1st Dist.] 2005, no pet.).



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B. Rule of Civil Procedure 118

      1. Notice of Amendment to Returns of Service

      Appellants first argue that the trial court erred by allowing amendment of

the returns of service without giving them notice of the proposed amendment.

Specifically, Appellants contend that rule of civil procedure 118 “requires that a

defendant receive notice of a request to the trial court to amend a return of

service.”

      Rule of civil procedure 118 states:

            At any time in its discretion and upon such notice and on such
      terms as it deems just, the court may allow any process or proof of
      service thereof to be amended, unless it clearly appears that
      material prejudice would result to the substantial rights of the party
      against whom the process issued.

Tex. R. Civ. P. 118 (emphasis added).

      Appellants cite several cases to support their argument that “Texas cases

support the argument that notice to a defendant is required before a court may

enter an order amending a return in that the cases addressing an amended

return and a default judgment almost all have notice to a defendant.” But there is

no holding within those cases that notice is always required, and the mere

mention of notice to a defendant in a particular case does not mean that notice is

always required. For example, one case cited by Appellants involved a bill of

review filed months after the default judgment.    The court of appeals merely

noted that “after notice and hearing, the court below signed an order permitting

the officer’s return to be amended pursuant to Rule 118 of the Texas Rules of

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Civil Procedure.” Walker v. Brodhead, 828 S.W.2d 278, 281 (Tex. App.—Austin

1992, writ denied) (holding trial court had jurisdiction twenty-two months after

default judgment was final to order amendment of return of service). Notice was

not at issue in that case. Each of Appellants’ other cited authorities made similar,

passing references to notice to the defendant, but none held that notice is always

required before a return of service may be amended. 1 See Higginbotham v.

Gen. Life & Acc. Ins. Co., 796 S.W.2d 695, 696–97 (Tex. 1990) (discussing trial

court amendment of return during hearing on defendants’ motion for new trial);

Gonzalez v. Tapia, 287 S.W.3d 805, 807–09 (Tex. App.—Corpus Christi 2009,

pet. denied) (holding trial court did not err by granting Tapia’s motion to amend

proof of service during pendency of Gonzalez’s petition for bill of review);

Employer’s Reinsurance Corp. v. Brock, 74 S.W.2d 435, 437 (Tex. Civ. App.—

Eastland 1934, writ dism’d) (noting that trial court permitted amendment of return

during hearing on defendant’s motion to set aside judgment).

      On its face, rule 118 gives the trial court discretion to determine the notice

and terms of notice the trial court “deems just” in a particular case, see Tex. R.

Civ. P. 118, and our sister court has held that a trial court did not err by not

      1
       We also note that, in a slightly different context, a defendant who has
neither filed an answer nor appeared in a case is not entitled to notice of a
hearing before a court can properly render default judgment because the
defendant “received all the notice to which it was entitled when it was originally
served with process.” Cont’l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184,
188–89 (Tex. App.—Dallas 2000, pet. denied); see Long v. McDermott, 813
S.W.2d 622, 624 (Tex. App.—Houston [1st Dist.] 1991, no writ).


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requiring notice to the defendant of an amendment. See Bavarian Autohaus, Inc.

v. Holland, 570 S.W.2d 110, 113 (Tex. Civ. App.—Houston [1st Dist.] 1978, no

writ) (discussing rule 118 and holding that trial court did not err “in not requiring

that notice of the amendment be given to Bavarian Autohaus”). We therefore

overrule Appellants’ contention that rule 118 always requires notice to a

defendant before a return of service may be amended. Rather, the trial court has

discretion to require notice or to permit amendment without notice. Tex. R. Civ.

P. 118; see Bavarian Autohaus, 570 S.W.2d at 113. Thus, we cannot conclude

that there is error apparent on the face of the record based on the lack of notice

to Appellants before the returns were amended.

      2. Amended Returns Relate Back to Original Returns

      Appellants also argue that the default judgment must be set aside because

the amended returns of service were not filed before the trial court rendered the

default judgment.    But Appellants do not cite any authority that requires the

amended returns to be filed before rendition of the default judgment. The record

is clear in this case that the returns were amended before judgment, and the

Texas Supreme Court has held that the trial court may enter a postjudgment

order granting amendment of a return of citation pursuant to rule 118 while the

trial court retains plenary power. Higginbotham, 796 S.W.2d at 696 (holding

recitation in order denying defendants’ motions for new trial after default

judgment and while trial court retained plenary power, indicating service was

proper, was tantamount to order amending the return of citation under rule 118 to

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reflect service during normal business hours at defendants’ home offices, thus

reflecting proper service); see also Dawson v. Briggs, 107 S.W.3d 739, 745 (Tex.

App.—Fort Worth 2003, no pet.) (holding return properly amended while trial

court retained plenary power although defendant had already perfected appeal

from default judgment); Mylonas v. Tex. Commerce Bank–Westwood, 678

S.W.2d 519, 521–22 (Tex. App.—Houston [14th Dist.] 1984, no writ) (upholding

default judgment following postjudgment amendment of return of service to show

service at correct address).

      The record is clear that the trial court in this case amended the returns

before it rendered the default judgment. Although the trial court signed both the

order authorizing amendment and the default judgment on September 22, 2011,

the trial court’s handwritten docket sheet reflects that the court signed the order

expressly amending the returns before signing the final default judgment. 2

Moreover, the default judgment itself references the amended returns. And to

the extent Appellants argue that the amended returns had not been on file for ten

days prior to entry of the default judgment, “[t]he law is clear that when a return is

amended under Rule 118, the amended return relates back and is regarded as

filed when the original return was filed.”     Walker, 828 S.W.2d at 282 (citing

Higginbotham, 796 S.W.2d at 696–97); Bavarian Autohaus, 570 S.W.2d at 113;

      2
       In addition, the amended returns were signed by the constable on
September 15, 2011, and were filed with the trial court on September 19, 2011,
as exhibits to Southwest Bank’s motion to amend the returns.


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Lafleaur v. Switzer, 109 S.W.2d 239, 241 (Tex. Civ. App.—Beaumont 1937, no

writ); Employer’s Reinsurance Corp., 74 S.W.2d at 438. That an amended return

relates back to the filing date of the original return satisfies the requirement that a

return of service be on file for at least ten days before entry of judgment. Walker,

828 S.W.2d at 282; see Tex. R. Civ. P. 107; Bavarian Autohaus, 570 S.W.2d at

113. The original returns were filed with the trial court on August 22, 2011, were

on file for more than ten days before the trial court rendered the default judgment

on September 22, 2011, and the amended returns relate back to the August 22,

2011 filing date for the original returns. Walker, 828 S.W.2d at 282.

      3. No Material Prejudice to Substantial Rights

      Appellants also argue that the order allowing amendment of the returns

materially prejudiced their substantial rights.       In that regard, rule of civil

procedure 118 does not permit amendment of returns of service if “it clearly

appears that material prejudice would result to the substantial rights of the party

against whom the process issued.” Tex. R. Civ. P. 118. Appellants’ argument,

however, is only that “[i]n this case, clearly material prejudice occurred to the

substantial rights of the party served. Notably, the Appellants’ right to appeal a

case on which they have meritorious defenses has been materially prejudiced by

the entry of the order allowing the amendment of the returns.” Appellants do not

explain how the trial court’s order amending the returns materially prejudiced

their substantial rights, and we note that two courts have held that a defendant’s

substantial rights are not materially prejudiced when the amended return corrects

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only a minor defect in the original return of citation. See Mylonas, 678 S.W.2d at

522–23 (holding Mylonas not prejudiced by amendment showing service at

address on Memorial Drive rather than Memorial Way); see also Walker, 828

S.W.2d at 282 (holding Walker not prejudiced by amendment to show citation left

with person over sixteen and to allow verification of facts shown on return).

Appellants do not dispute that L.E. Jowell, Jr. was served with the citations on

August 18, 2011, or that the returns of service, as amended, reflect the true facts

of service. Under these circumstances, Appellants have not shown an error on

the face of the record that would require the default judgment to be set aside.

C. Rule of Civil Procedure 107

      Appellants asserted at oral argument and contend in their supplemental

brief that the default judgment must be set aside because the amended returns

were not attached to the citations or verified as required by rule of civil procedure

107. Rule of civil procedure 107 was amended effective January 1, 2012, but the

version of Rule 107 applicable to this case stated in relevant part as follows:

             The 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. The
      return of citation by an authorized person shall be verified. . . .




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Tex. R. Civ. P. 107, 733–34 S.W.2d XLV (1988, amended 1990) (hereinafter

Former Tex. R. Civ. P. 107). 3

      As to Appellants’ contention that the amended returns are defective

because they were not verified, the plain language of former rule 107 required

verification only when the return of citation was signed by an authorized person,

not when the return was signed by an officer. Id.; Myan Mgmt. Grp., L.L.C. v.

Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 752 (Tex. App.—Dallas

2009, no pet.). The rule did not require that an officer verify his or her signature.

Former Tex. R. Civ. P. 107; see Myan Mgmt. Grp., 292 S.W.3d at 752–53. The

constable who signed the returns and amended returns in this case was

therefore not required to have his signature verified.

      Appellants also contend that the amended returns were not “endorsed on

or attached to” the original citations, thereby rendering service defective.

Appellants rely on Verlander Enters., Inc. v. Graham, 932 S.W.2d 259, 262 (Tex.

App.—El Paso 1996, no writ).       Verlander is distinguishable because the trial

court’s order that authorized amendment of the return of service in that case did

not amend the return by its own terms but authorized the plaintiff to “have the

return . . . corrected so as to conform to law [and to] withdraw the citation and

forward it to the Sheriff of El Paso County, Texas, for proper return of citation,”


      3
      The current version of Rule 107 states that the return of service “may, but
need not, be endorsed on or attached to the citation.” Tex. R. Civ. P. 107(a).


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which the plaintiff failed to do. Id. at 260. Here, the trial court’s order not only

authorized amendment of the returns but also stated that each of the returns of

service was “[t]hereby amended to reflect” service on Jowell Jr. and on L.E.J.

through Jowell Jr. Moreover, unlike the order in Verlander, the trial court here did

not order that the original citations be withdrawn from the trial court or forwarded

to the sheriff for correction.    And because the original citations were not

withdrawn, the amended returns could not have been attached to or endorsed on

the original citations because the original citations remained on file with the trial

court clerk.

      Appellants also rely on a statement from Verlander that “[a]lthough the

second return was intended as an amendment of the first return pursuant to Rule

118, we do not read Rule 118 to abrogate Rule 107’s requirement that the return,

whether original or amended, be endorsed on or attached to the citation.” Id. at

262. In addition to the foregoing mentioned differences, the court in Verlander

noted a final caveat in Higginbotham that its holding was restricted to cases in

which there is a record such as a hearing on a motion for new trial and an order

expressly amending the return or an order that is tantamount to amending the

return of citation. See Verlander, 932 S.W.2d at 263. The court of appeals in

Verlander pointed out that there was no such hearing nor was there an order

expressly amending the return or that was tantamount to amendment but that the

order merely authorized the plaintiff to have the sheriff correct the return. Id. In

this case, there is an order expressly amending the return.

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      To the extent that the court in Verlander may have intended to hold that

rule 118 did not override the requirement of former rule 107 that the return,

whether amended or original, be endorsed on or attached to the citation, we

respectfully disagree.   Former rule 107 did not mention amended returns of

service. And although former rule 107 required that a return of service be on file

for at least ten days before the trial court could properly render default judgment,

see Former Tex. R. Civ. P. 107, 4 Texas courts for decades have held that a

return amended under rule 118 relates back to and is regarded as filed when the

original return was filed. See Walker, 828 S.W.2d at 282. Thus, a trial court

could properly render default judgment when the original return had been on file

for at least ten days even though the amended return had not.              Id.; see

Higginbotham, 796 S.W.2d at 696–97; Bavarian Autohaus, 570 S.W.2d at 113;

Employer’s Reinsurance Corp., 74 S.W.2d at 438; see also Kubovy v. Cintas

Corp., No. 01-02-00521-CV, 2003 WL 21299938, at *3 (Tex. App.—Houston [1st

Dist.] June 5, 2003, no pet.) (mem. op.) (“[I]t has long been the law in Texas that

the original and amended returns are read as one document.”). In other words,

when a return is amended under rule 118, the provisions of rule 118 control over

any potentially conflicting provisions of former rule 107. Given that Texas courts

hold that rule 118 takes precedence over former rule 107 in that context, it does


      4
      The current version of rule 107 contains the same ten-day requirement.
See Tex. R. Civ. P. 107(h).


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not follow that rule 118 would not take precedence in this context. Rather, it is

sufficient that the initial return was endorsed on or attached to the original citation

because the amended return relates back to the original return and because the

original and amended returns are read together as one document.                   See

Higginbotham, 796 S.W.2d at 696–97; Walker, 828 S.W.2d at 282; Bavarian

Autohaus, 570 S.W.2d at 113; Employer’s Reinsurance Corp., 74 S.W.2d at 438;

see also Kubovy, 2003 WL 21299938, at *3.

      The original returns of service in this case were endorsed on the citations

themselves, and the amended returns relate back to and are read together with

the original returns. We hold that the amended returns of service in this case are

not defective on the ground that they are not endorsed on or attached to the

citation. We overrule Appellants’ sole issue.

                                  IV. Conclusion

      Having overruled LEJ and Jowell Jr.’s sole issue, we affirm the trial court’s

judgment.


                                                     ANNE GARDNER
                                                     JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: July 25, 2013




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