In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00356-CV
QUALITY OPERATING COMPANY, LLC, D/B/A BOB’S CONTAINERS, APPELLANT
V.
TONICA MARIE LOMAX, APPELLEE
On Appeal from County Court at Law Number One Travis County, Texas Trial Court No. C-1-CV-23-005134, Honorable Todd T. Wong, Presiding
May 1, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Quality Operating Company, LLC, d/b/a Bob’s Containers, appeals from
the trial court’s final judgment in favor of Appellee, Tonica Marie Lomax, in her suit for
damages for failure to deliver and install a container home. By two issues, Quality
Operating maintains the trial court erred in granting Lomax a default judgment because
(1) citation was defective and did not strictly comply with the Texas Rules of Civil Procedure and (2) the return of service was defective and did not strictly comply with the
same rules. Lomax did not file a brief. We reverse and remand.1
BACKGROUND
On July 27, 2022, Lomax, a resident of Atlanta, Georgia, entered into a Container
Sales Agreement with Quality Operating, a company in Travis County, Texas, to purchase
a container home with a delivery and installation date in November 2022. A year later,
Lomax, proceeding pro se, filed suit for breach of contract, theft by deception, fraud, and
unjust enrichment. She alleged she had paid $61,960 and had not received any product
or service in return.
By her original petition, she described Quality Operating as an LLC “with an
address at 11411 FM 812 #b20, Del Valle, Travis County TX 78617 doing business as
Bob’s Containers, LLC . . . .” The Citation recites as follows:
A copy of the petition accompanies this citation, in cause number C-1-CV- 23-005134, styled TONICA LOMAX, Plaintiff VS. QUALITY OPERATING COMPANY, LLC, D/B/A BOB’S CONTAINERS, LLC, Defendant
Filed in Civil. Civil and Family Courts Facility, 1700 Guadalupe, Austin, Texas on November 06, 2023. Given under my hand and seal of Dyana Limon-Mercado, County Clerk on this the 14th day of March, 2024.
Dyana Limon-Mercado, County Clerk Travis County, Texas 1700 Guadalupe St. Austin, Texas 78701 P.O. Box 149325 Austin, Texas 78714-9325
By Deputy: ______________________ C. Makekau
1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Third Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX. R. APP. P. 41.3. 2 The Affidavit of Service is from a private process server. In the space for “Court,”
the Affidavit incorrectly provides “The Hon. Dyana Limon-Mercado,” the name of the
County Clerk referenced in the Citation. In the space for “Case,” the Affidavit provides a
different cause number than on the original petition and citation. The process server
stated “I, Rob Henderson, being duly sworn, depose and say, I am over the age of 18
years and not a party to this action, and that within the boundaries of the state where
service was effected, I was authorized by law to make service and informed said person
of the contents herein
Recipient Name/Address: QUALITY OPERATING COMPANY LLC – Robert Balderez, 11411 Fm 812, Del Valle, TX 78617
Manner of Service: Business, Mar 19, 2024, 10:30 am CDT
Documents: CATION [sic] COMPLAINT BOBS CONTAINERS SALES AGREEMENT C-1-CV-23-005134., CITY OF ATLANTA OPEN RECORDS C-1-CV-23-005134, CLERK’S RECORD C-1-20-003843., CLERK’S RECORD C-1-CV-23-004388., FIRST CORROSPONDENCE [sic] WITH CIRY [sic] OF ATLANTA C-CV-23-005134., LOMAX COMPLAINT C- 1-CV-23-005134. PERMITTING OUTSTANDING FEES C-1-CV-23-005134., SOI C-1-CV-23-005134. CONTAINER SALES AGREEMENT, EXHIBIT A,
Additional Comments:
1) Successful Attempt: Mar 19, 2024, 10:30 am CDT at 11411 Fm 812, Del Valle, TX 78617 received by QUALITY OPERATING COMPANY LLC – Robert Balderez.
The affidavit is signed by Rob Henderson, “pcs 12091” and dated “03/20/2024.”
Quality Operating did not file an answer and Lomax set the cause for a merits
hearing. She appeared pro se and the trial court entered a no-answer default final
3 judgment in her favor for $210,000 on July 17, 2024. Quality Operating filed a timely
request for Findings of Fact and Conclusions of Law which the trial court made.2 Quality
Operating also filed a motion for new trial asserting defective service for failure to strictly
comply with the rules pertaining to service. The motion was overruled by operation of
law.
ANALYSIS
By its two issues, Quality Operating maintains the citation and return of service
(Affidavit) were defective for failure to strictly comply with the applicable Rules of Civil
Procedure. We agree.
Whether service is in strict compliance with the applicable rules is a question of
law reviewed de novo. J.O. v. Tex. Dep’t Fam. & Protective Servs., 640 S.W.3d 182, 187
(Tex. App.—Austin 2020, no pet.). No-answer default judgments are disfavored, and a
trial court lacks jurisdiction over a defendant who was not properly served. Spanton v.
Bellah, 612 S.W.3d 314, 316 (Tex. 2020). Defective service of process constitutes error
on the face of the record. Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007). This is
so even if a defendant has actual notice of a pending suit. Wilson v. Dunn, 800 S.W.2d
833, 836 (Tex. 1990).
A no-answer default judgment cannot stand when the defendant “was not served
in strict compliance with applicable requirements.” Spanton, 612 S.W.3d at 316 (citing
Wilson, 800 S.W.2d at 836 ). Strict compliance with the rules for service of citation must
affirmatively appear in the record for a default judgment to withstand a direct attack. Ins.
Co. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2000). No presumptions in favor of valid
2 The findings and conclusions do not reference the citation or service of process.
4 issuance, service, or return are indulged. Uvalde Country Club v. Martin Linen Supply
Co., 690 S.W.2d 884, 885 (Tex. 1985). Failure to affirmatively show strict compliance
with the Texas Rules of Civil Procedure renders the attempted service of process invalid
and of no effect. Id.
Rule 99b.(3) of the Texas Rules of Civil Procedure requires that a citation contain
the name and location of the court. In the underlying case, the Citation refers only to
“Filed in Civil. Civil and Family Courts Facility.” It does not name Travis County Court at
Law Number One. The Citation is not signed under seal by either County Clerk Dyana
Limon-Mercado or Deputy Clerk C. Makekau. TEX. R. CIV. P. 99b.(2).
A petition must name the defendant and the citation must be directed to the
defendant. Here, the petition and Citation name Quality Operating Company, LLC, d/b/a
Bob’s Containers, LLC as defendant. Neither document names an individual who would
be a proper agent for service. See Harmon & Reid v. Quin, 258 S.W.2d 441, 443 (Tex.
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00356-CV
QUALITY OPERATING COMPANY, LLC, D/B/A BOB’S CONTAINERS, APPELLANT
V.
TONICA MARIE LOMAX, APPELLEE
On Appeal from County Court at Law Number One Travis County, Texas Trial Court No. C-1-CV-23-005134, Honorable Todd T. Wong, Presiding
May 1, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Quality Operating Company, LLC, d/b/a Bob’s Containers, appeals from
the trial court’s final judgment in favor of Appellee, Tonica Marie Lomax, in her suit for
damages for failure to deliver and install a container home. By two issues, Quality
Operating maintains the trial court erred in granting Lomax a default judgment because
(1) citation was defective and did not strictly comply with the Texas Rules of Civil Procedure and (2) the return of service was defective and did not strictly comply with the
same rules. Lomax did not file a brief. We reverse and remand.1
BACKGROUND
On July 27, 2022, Lomax, a resident of Atlanta, Georgia, entered into a Container
Sales Agreement with Quality Operating, a company in Travis County, Texas, to purchase
a container home with a delivery and installation date in November 2022. A year later,
Lomax, proceeding pro se, filed suit for breach of contract, theft by deception, fraud, and
unjust enrichment. She alleged she had paid $61,960 and had not received any product
or service in return.
By her original petition, she described Quality Operating as an LLC “with an
address at 11411 FM 812 #b20, Del Valle, Travis County TX 78617 doing business as
Bob’s Containers, LLC . . . .” The Citation recites as follows:
A copy of the petition accompanies this citation, in cause number C-1-CV- 23-005134, styled TONICA LOMAX, Plaintiff VS. QUALITY OPERATING COMPANY, LLC, D/B/A BOB’S CONTAINERS, LLC, Defendant
Filed in Civil. Civil and Family Courts Facility, 1700 Guadalupe, Austin, Texas on November 06, 2023. Given under my hand and seal of Dyana Limon-Mercado, County Clerk on this the 14th day of March, 2024.
Dyana Limon-Mercado, County Clerk Travis County, Texas 1700 Guadalupe St. Austin, Texas 78701 P.O. Box 149325 Austin, Texas 78714-9325
By Deputy: ______________________ C. Makekau
1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Third Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX. R. APP. P. 41.3. 2 The Affidavit of Service is from a private process server. In the space for “Court,”
the Affidavit incorrectly provides “The Hon. Dyana Limon-Mercado,” the name of the
County Clerk referenced in the Citation. In the space for “Case,” the Affidavit provides a
different cause number than on the original petition and citation. The process server
stated “I, Rob Henderson, being duly sworn, depose and say, I am over the age of 18
years and not a party to this action, and that within the boundaries of the state where
service was effected, I was authorized by law to make service and informed said person
of the contents herein
Recipient Name/Address: QUALITY OPERATING COMPANY LLC – Robert Balderez, 11411 Fm 812, Del Valle, TX 78617
Manner of Service: Business, Mar 19, 2024, 10:30 am CDT
Documents: CATION [sic] COMPLAINT BOBS CONTAINERS SALES AGREEMENT C-1-CV-23-005134., CITY OF ATLANTA OPEN RECORDS C-1-CV-23-005134, CLERK’S RECORD C-1-20-003843., CLERK’S RECORD C-1-CV-23-004388., FIRST CORROSPONDENCE [sic] WITH CIRY [sic] OF ATLANTA C-CV-23-005134., LOMAX COMPLAINT C- 1-CV-23-005134. PERMITTING OUTSTANDING FEES C-1-CV-23-005134., SOI C-1-CV-23-005134. CONTAINER SALES AGREEMENT, EXHIBIT A,
Additional Comments:
1) Successful Attempt: Mar 19, 2024, 10:30 am CDT at 11411 Fm 812, Del Valle, TX 78617 received by QUALITY OPERATING COMPANY LLC – Robert Balderez.
The affidavit is signed by Rob Henderson, “pcs 12091” and dated “03/20/2024.”
Quality Operating did not file an answer and Lomax set the cause for a merits
hearing. She appeared pro se and the trial court entered a no-answer default final
3 judgment in her favor for $210,000 on July 17, 2024. Quality Operating filed a timely
request for Findings of Fact and Conclusions of Law which the trial court made.2 Quality
Operating also filed a motion for new trial asserting defective service for failure to strictly
comply with the rules pertaining to service. The motion was overruled by operation of
law.
ANALYSIS
By its two issues, Quality Operating maintains the citation and return of service
(Affidavit) were defective for failure to strictly comply with the applicable Rules of Civil
Procedure. We agree.
Whether service is in strict compliance with the applicable rules is a question of
law reviewed de novo. J.O. v. Tex. Dep’t Fam. & Protective Servs., 640 S.W.3d 182, 187
(Tex. App.—Austin 2020, no pet.). No-answer default judgments are disfavored, and a
trial court lacks jurisdiction over a defendant who was not properly served. Spanton v.
Bellah, 612 S.W.3d 314, 316 (Tex. 2020). Defective service of process constitutes error
on the face of the record. Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007). This is
so even if a defendant has actual notice of a pending suit. Wilson v. Dunn, 800 S.W.2d
833, 836 (Tex. 1990).
A no-answer default judgment cannot stand when the defendant “was not served
in strict compliance with applicable requirements.” Spanton, 612 S.W.3d at 316 (citing
Wilson, 800 S.W.2d at 836 ). Strict compliance with the rules for service of citation must
affirmatively appear in the record for a default judgment to withstand a direct attack. Ins.
Co. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2000). No presumptions in favor of valid
2 The findings and conclusions do not reference the citation or service of process.
4 issuance, service, or return are indulged. Uvalde Country Club v. Martin Linen Supply
Co., 690 S.W.2d 884, 885 (Tex. 1985). Failure to affirmatively show strict compliance
with the Texas Rules of Civil Procedure renders the attempted service of process invalid
and of no effect. Id.
Rule 99b.(3) of the Texas Rules of Civil Procedure requires that a citation contain
the name and location of the court. In the underlying case, the Citation refers only to
“Filed in Civil. Civil and Family Courts Facility.” It does not name Travis County Court at
Law Number One. The Citation is not signed under seal by either County Clerk Dyana
Limon-Mercado or Deputy Clerk C. Makekau. TEX. R. CIV. P. 99b.(2).
A petition must name the defendant and the citation must be directed to the
defendant. Here, the petition and Citation name Quality Operating Company, LLC, d/b/a
Bob’s Containers, LLC as defendant. Neither document names an individual who would
be a proper agent for service. See Harmon & Reid v. Quin, 258 S.W.2d 441, 443 (Tex.
App.—San Antonio 1953, no writ) (providing when a petition is silent or states a name
without sufficient allegations to indicate the person named is a proper agent for service,
a default judgment should not be rendered without evidence of proper service).
Rule 103 authorizes “any person authorized by law” not less than eighteen years
of age to serve process. TEX. R. CIV. P. 103. Process server Rob Henderson asserted
he was over age eighteen and authorized by law to effectuate service of process in Texas.
He did not, however, swear under penalty of perjury as required when service is made by
someone other than a sheriff, constable, or court clerk. TEX. R. CIV. P. 107(e). He also
failed to include the expiration date of his certification. TEX. R. CIV. P. 107(b)(10). See
Wyatt v. Deal, No. 02-18-00246-CV, 2019 Tex. App. LEXIS 4778, at *11 (Tex. App.—Fort
5 Worth June 6, 2019, no pet.) (mem. op.) (noting that expiration date of process server’s
certification is a specified requirement of Rule 107(b) and thus, not considered a minute
detail).
Rule 106(a)(1) requires delivery of a copy of the citation and petition to the
defendant. TEX. R. CIV. P. 106(a)(1). Under “Documents” in Henderson’s affidavit, he
lists “CATION” which we interpret as “CITATION,” and also lists “COMPLAINT FOR
DAMAGES,” and “LOMAX COMPLAINT.” He included various cause numbers unrelated
to the underlying suit.
Another deficiency in Henderson’s Affidavit is his failure to include the day and
hour he received the documents to be served. TEX. R. CIV. P. 16, 105, 107(b)(4). He did,
however, include the date and time of successful service. Also, the Affidavit does not
name Travis County Court at Law Number One as the court in which the case was filed.
TEX. R. CIV. P. 107(b)(2).
Finally, neither the Citation nor the Affidavit name an agent of Quality Operating
for purposes of service of process. A corporation is not a person capable of accepting
process and must be served through its agents. Reliant Capital Solutions, LLC v. Chuma-
Okorafor, No. 03-11-00422-CV, 2013 Tex. App. LEXIS 10115, at *6 (Tex. App.—Austin
Aug. 14, 2013, no pet.) (mem. op.). The Affidavit recites service was successful on Robert
Balderez but does not identify him. There is nothing in the record to indicate he was
Quality Operating’s registered agent. See TEX. BUS. ORGS. CODE ANN. § 5.201(b)(1).
Under de novo review, we find myriad errors and deficiencies contained in or
omitted from the Citation and Affidavit constitute a failure to strictly comply with the
applicable rules of service rendering service on Quality Operating invalid. The trial court
6 erred in entering a default judgment in favor of Lomax without obtaining proper service
on Quality Operating. Issues one and two are sustained.
CONCLUSION
The trial court’s judgment is reversed, and the cause is remanded to the trial court
for further proceedings.
Alex Yarbrough Justice