Dean A. McCartney and John Churchill v. State of Texas and the Attorney General of Texas, on Behalf of the Texas Employment Commission

• Court: Court of Appeals of Texas
• Decided: February 13, 1991
• Docket: 03-90-00232-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-90-232-CV

DEAN A. McCARTNEY AND JOHN CHURCHILL,

APPELLANTS

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 476,442, HONORABLE JOE B. DIBRELL, JUDGE

PER CURIAM

Appellants Dean A. McCartney and John Churchill seek review by writ of error of a default judgment entered by the district court of Travis County in favor of appellee the State of Texas. We will reverse the judgment as to appellants and remand that portion of the cause for a new trial.

On December 20, 1989, the State filed suit against Dean A. McCarty [sic], John Churchill, and Cleve McCarty alleging individual liability for unpaid employment taxes owned by Permian Chemical Company, Inc. See Tex. Tax Code Ann. §§ 171.252, 171.255 (1982). The record indicates that the Secretary of State was served with citation, and that copies of the petition were forwarded, by certified mail, to John Churchill and Dean A. McCarty [sic] at the addresses given in the State's petition. See Tex. Civ. Prac. & Rem. Code Ann. § 17.044 (1986 & Supp. 1991). When neither appellant answered, the district court entered a default judgment against Dean A. McCarty [sic], John Churchill, and Cleve McCarty in the amount of $38,167.59, penalties, interest, and costs. Tex. R. Civ. P. Ann. 239 (1976).

In two points of error, appellants complain that the district court erred in granting judgment because the citation was fatally defective. By letter addressed to the Clerk of this Court, the State answers that the judgment as to appellants should be set aside.

If a default judgment is attacked directly by writ of error, it is essential that the record show strict compliance with the rules regarding issuance of citation, manner of service, and return of process. McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965). Failure to show such compliance on the face of the record renders the attempted service of process invalid. Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (Tex. 1985).

Pursuant to the State's original petition, citation was directed to "Dean A. McCarty" at a Florida address by delivery on the Secretary of State. Appellants assert, and the State does not dispute, that Dean A. McCartney was the proper defendant received the citation forwarded by the Secretary of State. Accordingly, the record does not show strict compliance with the applicable rules for issuance, service, and return of citation. Id. at 885; De La Fuente v. Castillo, 740 S.W.2d 113 (Tex. App. 1987, no writ). We sustain appellants' first point of error.

Furthermore, the record does not show that the State complied with Tex. Civ. Prac. & Rem Code Ann. § 17.045(a) (1986) which provides that the Secretary of State "shall require a statement of the name and address of the nonresident's home or home office ...." The record does not reflect that the State furnished, or that the Secretary of State required, such a statement for either Dean A. McCartney or John Churchill. The only addresses provided were those alleged in the State's original petition; however, these addresses were not designated as home addresses. Accordingly, the State did not strictly comply with § 17.045. Chaves v. Todaro, 770 S.W.2d 944 (Tex. App. 1989, no writ); Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591 (Tex. App. 1989, no writ). We sustain appellants' second point of error.

Because of our disposition of these points, we need not address appellants' third point of error.

The judgment of the district court is reversed as to Dean A. McCarty [sic] and John Churchill and that portion of the cause remanded for further proceedings.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Reversed and Remanded

Filed:  February 13, 1991

[Do Not Publish]