Lakeridge Townhomes Homeowners Association, Inc. v. Sara Perri

• Court: Court of Appeals of Texas
• Decided: June 3, 2021
• Docket: 02-21-00038-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00038-CV ___________________________

LAKERIDGE TOWNHOMES HOMEOWNERS ASSOCIATION, INC., Appellant

V.

SARA PERRI, Appellee

On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2020-01130

Before Wallach, J.; Sudderth, C.J.; and Walker, J. Per Curiam Memorandum Opinion MEMORANDUM OPINION AND JUDGMENT

We have considered the “Agreed Motion to Vacate Final Default Judgment and

Remand to Trial Court.” In the motion, the parties, who have not yet filed briefs,

agree that Appellant has met all the requirements of a restricted appeal and that

reversible error is apparent on the face of the record. See Tex. R. App. P. 30; Ex parte

E.H., 602 S.W.3d 486, 497 (Tex. 2020). They ask this Court to vacate the default

judgment and remand this matter to the trial court for further proceedings.

Our review of the record confirms that Appellant has met the restricted-appeal

requirements. Appellant filed its notice of appeal within six months after the date the

trial court signed the default judgment, was a party to the underlying lawsuit, and did

not participate in the default-judgment hearing or timely file any post-judgment

motions or requests for findings of fact and conclusions of law. See Tex. R. App. P.

30.

Our review of the record also confirms that reversible error appears on its face.

We must reverse a no-answer default judgment when the defendant “‘was not served

in strict compliance with applicable requirements.’” Spanton v. Bellah, 612 S.W.3d 314,

316 (Tex. 2020) (per curiam) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.

1990)). When service is on a corporation, Rule 107 requires the return to show that

the person receiving service was authorized to do so. Inlog, Inc. v. Ryder Truck Rental,

Inc., No. 02-19-00283-CV, 2020 WL 1887846, at *2 (Tex. App.—Fort Worth Apr. 16,

2020, no pet.) (mem. op.); W. Garry Waldrop DDS, Inc. v. Pham, No. 14-15-00747-CV,

2 2016 WL 4921588, at *3–4 (Tex. App.—Houston [14th Dist.] Sept. 15, 2016, no pet.)

(mem. op.). In the case before us, no information on the face of the return or the

record shows that the person named in the return as the person who received service,

“Donna Phillips Property Supervisor,” was a person authorized to receive service on

behalf of Appellant or its registered corporate agent NewRoc Property Management

Services, Inc. Accordingly, the face of the record fails to show strict compliance with

the rules governing service and citation. See Inlog, 2020 WL 1887846, at *2; W. Garry

Waldrop DDS, Inc., 2016 WL 4921588, at *3–4; Reed Elsevier, Inc. v. Carrollton-Farmers

Branch Indep. Sch. Dist., 180 S.W.3d 903, 905–06 (Tex. App.—Dallas 2005, pet. denied).

We therefore agree with the parties that the record shows reversible error, and

we grant the agreed motion, reverse the trial court’s judgment, and remand this case

to the trial court for further proceedings. See Tex. R. App. P. 43.2(c); cf. Singh v.

Gallagher Bassett, L.L.C., No. 08-20-00137-CV, 2020 WL 5105214, at *1 (Tex. App.—

El Paso Aug. 31, 2020, no pet.) (mem. op.) (treating agreed motion seeking the

vacatur of the trial court’s default judgment and a remand for new trial as a Rule

42.1(a)(2) motion but also independently confirming error); Scott’s Big Truck Sales v.

Garcia, No. 02-17-00402-CV, 2018 WL 1865861, at *2 (Tex. App.—Fort Worth Apr.

19, 2018, no pet.) (denying as moot agreed motion asking that the trial court’s order

be set aside and the case remanded but reversing and remanding on same grounds

without an appellee’s brief); Wilson v. Am. Builders & Contractors Supply Co., No. 01-12-

00537-CV, 2012 WL 3234059, at *1 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, no

3 pet.) (mem. op.) (denying as moot agreed motion asking that the trial court’s order be

set aside and the case remanded but reversing and remanding on same grounds

without briefing).

As the parties agreed, each must bear its own costs of appeal. See Tex. R. App.

P. 43.4; cf. 42.1(d).

Per Curiam

Delivered: June 3, 2021