Opinion
No. 05-07-01577-CV
Opinion Filed March 17, 2009.
On Appealed from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-07-10148-A.
Before Justices MORRIS, FRANCIS, and MURPHY.
Opinion By Justice FRANCIS.
MEMORANDUM OPINION
Credigy Receivables, Inc. sued Barbara A. Holt for breach of contract/arbitration agreement and moved for a default judgment after Holt failed to answer. The trial court refused to sign Credigy's proposed judgment and later dismissed the case for want of prosecution. On appeal, Credigy argues the dismissal order was improper because it was entitled to a default judgment in its favor. We affirm.
In July 2007, Credigy sued Holt for the balance due on a credit card account. Credigy alleged it purchased the account from MBNA and, as owner and holder, was entitled to payment. Credigy further alleged the account was submitted to arbitration and the arbitrator awarded it $10,558.36. A copy of the arbitration award was attached to the petition. Our records contain a return of service reflecting Holt was served with the petition by a private process server; the return, however, was not verified. Holt did not answer the lawsuit.
After the lawsuit was filed, the trial court sent a letter advising that the case had been placed on the dismissal docket and would be dismissed on October 12, 2007 unless Credigy took one of several alternative actions, one of which was to prove up a default judgment if no answer was filed. On September 19, Credigy moved for default judgment. Five days later, the trial court sent Credigy a letter advising that it was returning the proposed default judgment unsigned because of several substantive deficiencies. Additionally, on the same date, the trial court signed an order notifying Credigy that it was returning a proposed judgment confirming the arbitration award unsigned for various deficiencies, including that the application did not show the jurisdiction of the court, and ordered Credigy to correct the deficiencies within ten days. Credigy took no further action, and on October 12, 2007, the trial court dismissed the case.
On appeal, Credigy argues it "should not have its case dismissed for want of prosecution because the trial court has additional requirements for granting default judgments above and beyond what the law requires." Credigy asserts it was entitled to a default judgment on liquidated damages because its pleadings and evidence supported such a judgment.
At any time after a defendant is required to answer, the plaintiff may take a default judgment if the defendant has not previously answered, and the citation, with the appropriate return, has been on file with the clerk for ten days. Tex. R. Civ. P. 107, 239. The return of citation by an "authorized person" must be "verified." Tex. R. Civ. P. 107. "Verified" means "an acknowledgment of an instrument before a notary public." See Goodman v. Wachovia Bank, N.A., 260 S.W.3d 699, 703 (Tex.App.-Dallas 2008, no pet.); Seib v. Bekker, 964 S.W.2d 25, 28 (Tex.App.-Tyler 1997, no writ). Thus, under rule 107, a return of service of citation by a private process server must contain the facts, time, and manner of service, and must be sworn to by the private process server before a notary public and filed with the papers of the cause. Goodman, 260 S.W.3d at 703.
The return of service of process under rule 107 is not a trivial or formulaic document, and strict compliance is required. Primate Const. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Failure to affirmatively show strict compliance with the Texas Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985). Without proper service of citation, a trial court does not have in personam jurisdiction to enter a default judgment against a non-answering defendant. See Marrot Commc'ns., Inc. v. Town Country P'ship, 227 S.W.3d 372, 376 (Tex.App. 2007, pet. denied).
Here, the record shows that Holt was served with the petition by a private process server; thus, the return of service of citation had to be acknowledged before a notary public. It was not — the area designated for the notary public was left blank. Because the return of service does not comply with the rule, service of process was invalid and the trial court did not have personal jurisdiction over Holt. Accordingly, Credigy has not demonstrated that it was entitled to default judgment and that the dismissal order was therefore necessarily improper. Because of our disposition of this issue, we need not address any other arguments.
We affirm the trial court's dismissal order.