Paul Jorg Faaborg v. Joe Allcorn D/B/A Re/Max Round Rock

• Court: Court of Appeals of Texas
• Decided: November 9, 2006
• Docket: 11-05-00365-CV
• Status: Published

Opinion

Opinion filed November 9, 2006

Opinion filed November 9, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00365-CV

                                  PAUL JORG FAABORG, Appellant

                                                             V.

                JOE ALLCORN D/B/A RE/MAX ROUND ROCK, Appellee

                                  On Appeal from the County Court at Law No. 2

                                                      Williamson County, Texas

                                             Trial Court Cause No. 05-0221-CC2

                                              M E M O R A N D U M   O P I N I O N

This is a restricted appeal from a default judgment in favor of Joe Allcorn d/b/a Re/Max Round Rock against Paul Jorg Faaborg.  We affirm.

Background Facts

Allcorn sued Faaborg for default on a debt in the amount of $2,640 plus interest.  At Allcorn=s request, the clerk of the trial court issued a citation, and Constable Marty Ruble served Faaborg with the citation.  Constable Ruble filed the officer=s return with the county clerk.  Faaborg failed to answer.  The trial court conducted a default judgment hearing and awarded Allcorn $2,640 plus interest and $1,000 in attorney=s fees.  Faaborg then filed this restricted appeal.

Issues on Appeal

Faaborg raises two issues on appeal.  First, he asserts that the requirements in the Texas Rules of Civil Procedure for a proper citation were not met.  Second, he asserts that the requirements in the Texas Rules of Civil Procedure for a proper return of service were not met.

Standard of Review

To prevail on a restricted appeal, a party must establish that: (1) notice of the restricted appeal was filed within six months after the judgment was signed; (2) the party filing the notice of restricted appeal was a party to the underlying lawsuit; (3) the party filing the notice of restricted appeal did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error was apparent on the face of the record.   Tex. R. App. P.  30; Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).  Faaborg has met the requirements to prevail on a restricted appeal except for showing that there was error on the face of the record.  Whether error exists on the face of the record is determined by considering all the papers in the record.  Fazio v. Newman 113 S.W.3d 747, 748 (Tex. App.CEastland 2003, pet. denied). 

In order for a default judgment to stand, there must be strict compliance with the Texas Rules of Civil Procedure.  Id.  Strict compliance regarding issuance, service, and return of citation must be shown on the face of the record or the service of process is invalid and has no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); Fazio, 113 S.W.3d at 748.  Strict compliance does not mean Aobeisance to the minutest detail.@  Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 613 (Tex. App.CCorpus Christi 1996, writ denied) (citing Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex. App.CHouston [1st Dist.] 1995, no writ)).

Were the Requirements for Citation Met?

Rule 99 of the Texas Rules of Civil Procedure provides that the citation shall: (1) be styled AThe State of Texas@; (2) be signed by the clerk under seal of court; (3) contain the name and location of the court; (4) show the date of the filing of the petition; (5) show the date of the issuance of citation; (6) show the file number; (7) show the names of parties; (8) be directed to the defendant; (9) show the name and address of attorney for the plaintiff, otherwise the address of the plaintiff; (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation; (11) contain the address of the clerk; and (12) notify the defendant that in case of failure of the defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition.

Faaborg asserts that the citation is insufficient because it does not contain the location of the court which issued the citation.  We disagree.  The citation contains the seal of the court which states ACounty Court at Law #2, Williamson County, Texas.@  Therefore, the citation contains the name and location of the court.  While Rule 99 requires the address of the clerk to be on the citation,  it does not require that the address of the court be on the citation.  We find that the citation complies with the Texas Rules of Civil Procedure.  Faaborg=s first issue on appeal is overruled.

Was the Return of Service Sufficient?

An officer=s return of service must contain the signature of the authorized person or officer executing the return, state when the citation was served, and state the manner of service.  Tex. R. Civ. P. 107.  It must also state the place of service.  Tex. R. Civ. P. 16.  However, if the place of service is not stated on the return, it is presumed, until the contrary appears, that the service was effected in the county where the officer was authorized to act.  Hudler-Tye Constr., Inc. v. Pettijohn & Pettijohn Plumbing, Inc., 632 S.W.2d 219 (Tex. App.CFort Worth 1982, no writ); Dickinson v. Dickinson, 173 S.W.2d 549 (Tex. Civ. App.CWaco 1943, no writ).  A return is not insufficient because of minor spelling errors or abbreviations.  See Ortiz, 926 S.W.2d at 612.

Constable Ruble of Williamson County served the citation.  The officer=s return of service states it was Aexecuted at Louis Henna (1900 block) within the County of Wmson.@  Faaborg contends that the return should provide the street address, the city, the state, and unabbreviated name of the county in which the citation was served.  Faaborg asks this court to require, at a minimum, sufficient information on the return to permit the U.S. Postal Service to deliver mailed correspondence.  However, Faaborg cites no authority for this proposition, and the Texas Rules of Civil Procedure do not require such detail.

Rule 16 does not require a specific address; it only requires that the return state the place of service.  The street and block listed on the return is sufficient to show the place of service.  The abbreviation of Williamson County does not render the return insufficient.  Further, the face of the record shows that Faaborg was served in Williamson County because that is the county where the officer was authorized to act.  We find that the officer=s return of service complies with the Texas Rules of Civil Procedure.  Faaborg=s second issue on appeal is overruled.      

Conclusion

On the face of the record, the citation and return of service complied with the Texas Rules of Civil Procedure.  Service of process was valid, and the default judgment was not defective.  The trial court=s judgment is affirmed.

RICK STRANGE

JUSTICE

November 9, 2006

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.