Court of Appeals of Texas, Sixth District, Texarkana
Submitted Date: May 30, 2018
Appeal from the 62nd District Court Hopkins County, Texas
Trial Court No. CV43360
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III Chief Justice
Enterprises, Inc., appeals the trial court's denial of a
motion for new trial following the entry of a no-answer
default judgment. Because the record demonstrates that Ny-Mac
was not served in strict compliance with the rules of service
of process, we vacate the trial court's default judgment
and remand this case for further proceedings.
Orr sued Ny-Mac on June 27, 2017, for breach of contract and
alleged violations of the Texas Deceptive Trade Practices
Act. On the same day, Orr requested that the district clerk
accomplish service of citation and the petition on InCorp
Services, Inc., Ny-Mac's registered agent for service of
process in Texas. United States Postal Service (USPS)
tracking showed that the citation and petition were delivered
June 29, 2017, to "Front Desk/Reception" of InCorp
Services, Inc. USPS's return receipt (green card) was
returned July 3, 2017. Ny-Mac failed to answer, and on
October 31, 2017, the trial court entered default judgment
against Ny-Mac for $45, 295.00 in actual damages, plus $1,
333.00 in pre-judgment interest, $306.00 in court costs, and
$2, 000.00 in attorney fees.
receiving notice of the default judgment, Ny-Mac timely filed
a motion for new trial and asked the trial court to set aside
its default judgment. The trial court denied Ny-Mac's
motion for new trial. On appeal, Ny-Mac argues that the default
judgment cannot stand because citation was not properly
served. We agree.
default judgment to survive a direct attack, service of
citation must have been obtained in strict compliance with
the rules for such service. Ins. Co. of State of Pa. v.
Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam);
In re T.J.T., 486 S.W.3d 675, 678-79 (Tex. App.-
Texarkana 2016, no pet.). Failure to comply with rules for
service of citation makes such attempted service void.
T.J.T., 486 S.W.3d at 679; Devine v. Duree,
616 S.W.2d 439, 441 (Tex. Civ. App.-Dallas 1981, writ
dism'd by agr.). Therefore, deviation from those rules
requires a resulting default judgment to be set aside.
T.J.T., 486 S.W.3d at 678. Without proper service,
even actual notice to a defendant will not support default
judgment. Greystar, LLC v. Adams, 426 S.W.3d 861,
867 (Tex. App.-Dallas 2014, no pet.).
"a direct attack upon a default judgment, the ordinary
presumptions in support of valid service that are raised in a
judgment addressed to the merits do not apply."
T.J.T., 486 S.W.3d at 678 (quoting Harmon Truck
Lines, Inc. v. Steele, 836 S.W.2d 262, 263 (Tex.
App.-Texarkana 1992, writ dism'd)). When the record does
not reflect strict compliance with rules of service, it will
not support a default judgment. Id. at 678-79
(quoting Harmon Truck Lines, Inc., 836 S.W.2d at
corporation serving as a registered agent for another
corporation can be served only by service on the agency
corporation's authorized agents. Reed Elsevier, Inc.
v. Carrollton-Farmers Branch Indep. Sch. Dist., 180
S.W.3d 903, 905 (Tex. App.-Dallas 2005, pet. denied).
support a default judgment, the record must show that an
individual that was served for a corporation was in fact
authorized or held an office that carried such authority,
such as "president, vice president, or registered
agent." W. Garry Waldrop DDS, Inc. v. Pham, No.
14-15-00747-CV, 2016 WL 4921588, at *3 (Tex. App.-Houston
[14th Dist.] Sept. 15, 2016, no pet.) (mem. op.) (citing
Reed Elsevier, Inc., 180 S.W.3d at 905 (holding
service was improper when return did not indicate capacity or
authority of person actually served)).
the return of service does not reflect compliance with the
rules of service of process. See Tex. R. Civ. P.
107(c) (return must contain addressee's signature). The
green card, although reflecting delivery to the address for
InCorp Services, Inc., was signed by Jason Casey with no
indication of Casey's capacity to accept the service.
Where, as here, both the "Agent" and
Addressee" boxes were left unchecked on the green card,
the record does not indicate Casey's connection, if any,
with InCorp Services, Inc. See Alamo Home Fin., Inc. v.
Duran, No. 13-14-00462-CV, 2015 WL 4381091, at *5 (Tex.
App.-Corpus Christi July 16, 2015) (mem. op.). Accordingly,
"[t]he record, on its face, shows that the return was
not signed by the addressee or agent." Id.
(citing Tex.R.Civ.P. 107; All Commercial Floors, Inc. v.
Barton & Rasor, 97 S.W.3d 723, 726 (Tex. App.-Fort
Worth 2003, no pet.)); see Landmark Org., L.P. v. Sunbelt
Air Conditioning & Refrigeration Serv., Inc., No.
13-08-00676-CV, 2010 WL 2784032, at *4 (Tex. App.-Corpus
Christi July 15, 2010, no pet.) (mem. op.); Sw. Sec.
Servs., Inc. v. Gamboa, 172 S.W.3d 90, 93 (Tex. App.-El
Paso 2005, no pet.). With no record indication of Casey's
capacity to receive service, and thus no indication of strict
compliance with Rule 107, default judgment was improper.
See Reed Elsevier, Inc., 180 S.W.3d at 905.
Because Ny-Mac was not served in strict compliance with the
rules for service of process, we vacate the default judgment
and remand the case ...