Southwestern Sec. Ser.v.Gamboa

Court of Appeals of Texas, Eighth District, El PasoAug 4, 2005
172 S.W.3d 90 (Tex. App. 2005)

No. 08-04-00234-CV.

August 4, 2005.

Appeal from the 205th District Court, El Paso County, Kathleen H. Olivares, J.

Stephen T. Leas, Law Offices of Stephen T. Leas, PLLC, McAllen, for Appellant.

John P. Mobbs, El Paso for Appellee.

Before BARAJAS, C.J., McCLURE, and CHEW, JJ.


OPINION


RICHARD BARAJAS, Chief Justice.

This is a restricted appeal from the trial court's entry of a default judgment against Appellant. For the reasons stated herein, we reverse the trial court's finding and remand this case to the trial court for further proceedings below.

I. FACTUAL AND PROCEDURAL HISTORY

On February 20, 2003, Appellee filed an original petition alleging employment discrimination against Appellant, Southwestern Security Services, Inc. On February 24, 2003, the trial court signed an order authorizing service authorizing a private process serving firm to serve Appellant in this cause by serving Appellant's registered agent Jesus Morales. On February 27, 2003, the citation was issued, providing for service by certified mail. The document reflects that the documents were mailed on February 28, 2003 to Southwest Security Serv. Inc., Jesus Morales, agent, with a return of service on March 17, 2003. The "green card" reflecting the receipt for delivery of the citation and petition, addressed to Southwestern Security Services, Inc., Jesus Morales, 505 East Washington St., Brownsville, TX 78521, but signed by a Guillermo Montes, is attached to the return.

Appellant did not appear or file an answer. On January 22, 2004, the trial court entered a default judgment against Appellant. On July 22, 2004, Appellant filed its notice of restricted appeal.

II. ISSUE ON APPEAL

In a sole issue, Appellant challenges the court's entry of a default judgment against it on the grounds that the trial court lacked jurisdiction over Appellant because the service of process was defective. Appellant contends that the delivery by certified mail of the citation and original petition was not sufficient to confer jurisdiction on the trial court because the return receipt was signed by someone other than the registered agent for the corporation. For the reasons stated below, we agree.

III. DISCUSSION

The rule has been firmly established in this state that a default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); All Commercial Floors, Inc. v. Barton Rasor, 97 S.W.3d 723, 726 (Tex.App.-Fort Worth 2003, no pet.). Likewise, there are no presumptions in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment. Uvalde Country Club, 690 S.W.2d at 885; All Commercial Floors, Inc., 97 S.W.3d at 726; Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 858 (Tex.App.-San Antonio 2002, pet. denied). Lack of compliance with the Texas Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Wilson, 800 S.W.2d at 836-37; All Commercial Floors, Inc., 97 S.W.3d at 726; Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 74 (Tex.App.-Waco 1997, writ denied).

A return of a citation served by registered or certified mail must contain the return receipt with the addressee's signature. See Tex.R. Civ. P. 107; Keeton v. Carrasco, 53 S.W.3d 13, 19 (Tex.App.-San Antonio 2001, pet. denied). If the return receipt is not signed by the addressee, the service of process is defective. Keeton, 53 S.W.3d at 19; see Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex.App.-Amarillo 1992, no writ) (return receipt not signed by addressee); Pharmakinetics Laboratories, Inc. v. Katz, 717 S.W.2d 704, 706 (Tex.App.-San Antonio 1986, no writ) (return receipt signed by Charlotte Young but addressee was Pharmakinetics Laboratories, Inc. c/o Steve Woodman). In this case, the return receipt was signed by Guillermo Montes. Guillermo Montes was not the addressee, therefore, the service of process was defective.

Under Rule 107, when a citation is served by registered or certified mail as authorized under Rule 106, the return by the officer or authorized person must contain the return receipt with the addressee's signature. Tex.R. Civ. P. 107. In Pharmakinetics Laboratories, Inc. v. Katz, the court held that a domestic return receipt signed by Charlotte Young, while the name of the appointee designated to receive service for defendant was listed as Steve Woodman, was invalid. Pharmakinetics Laboratories, Inc., 717 S.W.2d at 706. The discrepancy rendered service of process invalid since the record on its face showed that the return was not signed by the person appointed. Id.; see also Keeton, 53 S.W.3d at 19 (holding service of process defective when the return receipt is not signed by the addressee); Bronze Beautiful, Inc. v. Mahone, 750 S.W.2d 28, 29 (Tex.App.-Texarkana 1988, no writ) (holding service of process defective when the receipt card was signed by someone who was not the registered agent).

Here, the domestic return receipt appears to be signed by "Guillermo," with an apparent last name of Montes. Jesus Morales is the individual designated to receive service for Southwestern Security Services, Inc. Just as in Pharmakinetics Laboratories, Inc., the record on its face shows that the return was not signed by the addressee or registered agent. All Commercial Floors, Inc., 97 S.W.3d at 726-27. We recognize that a corporation is not a person capable of accepting process, and it must be served through its agents. Id. at 727; see Wohler v. La Buena Vida in Western Hills, Inc., 855 S.W.2d 891, 892 (Tex.App.-Fort Worth 1993, no writ) (holding that delivery of citation is proper when delivered to a party capable of receiving it); Curry Motor Freight, Inc. v. Ralston Purina Co., 565 S.W.2d 105, 106 (Tex.Civ.App.-Amarillo 1978, no writ). The trial court issued an order authorizing service on the corporation by "serving its registered agent, Jesus Morales." Because the record shows on its face that the return was not signed by the addressee or registered agent and Southwestern Security Services Inc. is not capable of receiving service, Appellee has failed to strictly comply with Rule 107. We sustain Appellant's only issue.

Having sustained Appellant's sole issue on review, we reverse the judgment of the trial court and remand this case for further proceedings in conformance with our decision.