a & a Express v. Triumph Transportation, LLC D/B/A Container Services and Gene Hill, Individually

• Court: Court of Appeals of Texas
• Decided: July 15, 2010
• Docket: 13-09-00172-CV
• Status: Published

Opinion

NUMBER 13-09-00172-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

A & A EXPRESS, Appellant,

v.

TRIUMPH TRANSPORTATION, LLC D/B/A CONTAINER SERVICES AND GENE HILL, INDIVIDUALLY, Appellee.

On appeal from the 216th District Court of Kerr County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Garza Memorandum Opinion by Chief Justice Valdez

In this restricted appeal, appellant, A & A Express, challenges the trial court’s no-

answer default judgment in favor of appellees, Triumph Transportation, LLC d/b/a Container Services and Gene Hill, individually (collectively “Triumph”). By three issues, A

& A Express argues that: (1) the trial court erroneously granted default judgment in favor

of Triumph because Triumph failed to properly serve A & A Express; (2) the evidence

supporting the damages awarded in the default judgment is legally and factually

insufficient; and (3) the trial court erred in calculating pre- and post-judgment interest. We

reverse the judgment of the trial court and remand for further proceedings consistent with

this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 17, 2006, a tractor-trailer owned by A & A Express and driven by

Andrew Salvatore Randazzo collided with a tractor-trailer owned by Triumph and driven by

Donald Wayne Hill.1 On July 7, 2008, Triumph brought suit against A & A Express and

Randazzo for damages resulting from the collision.

Triumph mailed a copy of a citation for service to A & A Express via certified mail

on July 8, 2008. See TEX . R. CIV. P. 106(a)(2). The citation was sent to “A & A Express,

Herender Handal, 212247 Morningdew Ct., Turlock, CA 95382,” which appears to be the

wrong address.2 It was delivered on July 14, 2008, and was signed for by “B.K. Hundal”

and “B.H. Hundal.”3

A & A Express did not file an answer in the trial court. On December 16, 2008, the

trial court signed an order severing Triumph’s claims against A & A Express from the

1 Neither Randazzo nor Donald W ayne Hill are parties to this appeal.

2 Trium ph’s original petition stated that A & A Express could be served with process by serving “Herender Handal, 2147 M orningdew Court, Turlock, California 95382, by certified m ail, return receipt requested.”

3 In fact, on the signature line of the return receipt, the recipient signed his nam e as “B.K. Hundal”; however, on the portion of the receipt requiring the recipient to print their nam e, the recipient printed his nam e as “B.H. Handal.” 2 causes of action against Randazzo and entered a default judgment against A & A Express.

The default judgment awarded $82,950 and $15,150.81 in actual damages to Triumph and

Gene Hill, respectively. In addition, the court awarded pre- and post-judgment interest and

all court costs to appellees.

II. RESTRICTED APPEAL

To attack a trial court’s judgment by restricted appeal, A & A Express must show

that: (1) a notice of appeal was filed within six months of the date of when the complained-

of judgment was signed; (2) A & A Express was a party to the suit who did not participate

in the hearing that resulted in the judgment or order; (3) A & A Express did not timely file

a post-judgment motion, request findings of fact and conclusions of law, or file a notice of

appeal within the time permitted under Texas Rule of Appellate Procedure 26.1(a)4; and

(4) the complained-of error is apparent on the face of the record. See TEX . R. APP. P.

26.1(c), 30; see also Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004);

Tex. Dep’t of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus Christi

2007, no pet.).

A & A Express, a named party to the lawsuit, filed its notice of appeal within six

months of the date that the trial court signed the order granting Triumph’s default judgment.

Further, the record does not reflect that A & A Express filed any post-judgment motions,

requests for findings of fact and conclusions of law, or a timely notice of appeal within the

context of rule 26.1(a). See TEX . R. APP. P. 26.1(a). Finally, as addressed below, the

4 Rule 26.1(a) of the Texas Rules of Appellate Procedure provides that a notice of appeal m ust be filed within ninety days after the judgm ent has been signed if any party tim ely filed: (1) a m otion for a new trial; (2) a m otion to m odify the judgm ent; (3) a m otion to reinstate under Texas Rule of Civil Procedure 165(a); or (4) a request for findings of fact and conclusions of law if such a request was required by the rules of civil procedure or could be properly considered by the appellate court. See T EX . R. A PP . P. 26.1 (a). Here, A & A Express did not file any m otions or m ake any request outlined in rule 26.1(a). See id. 3 complained-of error, a defect in the service of citation, is apparent from the face of the

record. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)

(per curiam) (stating that, for purposes of restricted appeals, the face of the record consists

of all the papers on file in the appeal). Thus, A & A Express has satisfied each of the

elements for obtaining relief through this restricted appeal.

III. THE SERVICE DEFECT

In its first issue, A & A Express argues that the trial court erred in granting default

judgment because the record does not demonstrate that A & A Express was properly

served. Specifically, A & A Express asserts that the record does not reflect that it could

lawfully be served through Herender Handal. In addition, A & A Express argues that the

record does not demonstrate that Handal was actually served, as evidenced by the return

receipt signed by an unknown “B.K. Hundal” or “B.H. Hundal.”

A. Applicable Law

“Strict compliance with the rules for service of citation [must] affirmatively appear on

the record in order for a default judgment to withstand direct attack.” Primate Constr., Inc.

v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Failure to comply with the rules governing

service of citation constitutes error on the face of the record. Id. at 153 (“Proper service

not being affirmatively shown, there is error on the face of the record, and the court of

appeals erred in holding otherwise.”); see Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d

254, 256 (Tex. 2009) (per curiam). “There are no presumptions in favor of valid issuance,

service, and return of citation in the face of a writ of error attack on a default judgment.”

Silver, 884 S.W.2d at 152; see Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007) (per

curiam); see also Maib v. Maib, No. 13-08-00413-CV, 2009 Tex. App. LEXIS 4135, at *4

4 (Tex. App.–Corpus Christi June 11, 2009, no pet.) (mem. op.) (citing Wachovia Bank of

Del., Nat’l Ass’n v. Gilliam, 215 S.W.3d 848, 850 (Tex. 2007) (per curiam)). Rather, when

a default judgment is entered, we will “rigidly enforce the rules governing service,” because

“the only ground supporting the judgment is that the defendant has failed to respond to the action in conformity with the applicable procedure for doing so. If the defendant can then show that the person commencing the action was guilty of comparable nonconformity with procedure rules, under a principle of equality the derelictions offset each other . . . .”

Festina, 226 S.W.3d at 408 (quoting Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990)).

“Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure

renders the attempted service of process invalid and of no effect.” Uvalde Country Club

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

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. See TEX . R. CIV. P. 106, 107; see also Sw.

Sec. Serv., Inc. v. Gamboa, 172 S.W.3d 90, 93 (Tex. App.–El Paso 2005, no pet.)

(concluding that service directed to a registered agent named “Jesus Morales” was invalid

when signed for by “Guillermo Montes”); All Commercial Floors, Inc., 97 S.W.3d at 727

(holding that a return receipt signed by “Mark,” with an illegible last name, was invalid,

given that Kelly Lynn Arreola was the individual designated to receive service for the

defendant); Pharmakinetics Labs., Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.–San

Antonio 2001, pet. denied) (holding service of process defective when the return receipt

was not signed by the addressee); Bronze & Beautiful, Inc. v. Mahone, 750 S.W.2d 28, 29

(Tex. App.–Texarkana 1988, no writ) (holding that service of process defective when the

receipt card was signed by someone who was not the registered agent).

5 B. Discussion

While the return of service was signed by “B.K. Hundal” and “B.H. Hundal,” the

record does not establish who the recipient is or his or her relationship with A & A Express.

We cannot presume that “B.K. Hundal” or “B. H. Hundal” were authorized to accept service

on A & A Express’s behalf without evidence in the record supporting such a presumption.

See TEX . R. CIV. P. 107; Silver, 884 S.W.2d at 152; Festina, 226 S.W.3d at 407; see also

Maib, 2009 Tex. App. LEXIS 4135, at *4. Moreover, Triumph, in its original petition, stated

that A & A Express’s authorized agent is “Herender Handal,” not “B.K. Hundal” or “B. H.

Hundal.” Furthermore, the service address indicated on the citation does not correspond

to the address for A & A Express’s authorized agent for service, as contained in Triumph’s

original petition.

Thus, the record fails to show that Triumph served an authorized agent of A & A

Express. Triumph did not strictly comply with the rules for service of citation; therefore,

Triumph’s attempt to serve A & A Express was “invalid and of no effect.” See TEX . R. CIV.

P. 107; see also Uvalde Country Club, 690 S.W.2d at 855; Gamboa, 172 S.W.3d at 93;

All Commercial Floors, Inc., 97 S.W.3d at 727; Keeton, 53 S.W.3d at 19; Bronze &

Beautiful, Inc., 750 S.W.2d at 29; Katz, 717 S.W.2d at 706. We hold that the trial court

erred in granting a default judgment in favor of Triumph. See Lejeune, 297 S.W.3d at 256;

Silver, 884 S.W.2d at 153; see also Alexander, 134 S.W.3d at 848; Fredricks, 235 S.W.3d

at 278. A & A Express’s first issue on appeal is sustained.

IV. CONCLUSION

Because we have sustained A & A Express’s first issue, we need not address its 6 other issues on appeal. See TEX . R. APP. P. 47.1. We therefore reverse and remand for

proceedings consistent with this opinion.

ROGELIO VALDEZ Chief Justice

Delivered and filed the 15th day of July, 2010.