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No. 02-02-155-CV, 7/10/2003. Civil Litigation Click here for the full text of this decision FACTS: This is a restricted appeal from a $4 million default judgment attacking the validity of service of process against a nonresident defendant. GMR Gymnastics Sales Inc. complains that the service of process was defective and the trial court abused its discretion by failing to grant GMR’s motion for new trial. HOLDING: Reversed and remanded. A direct attack on a judgment by restricted appeal must: 1. be brought within six months after the trial court signs the judgment; 2. by a party to the suit; 3. who did not participate in the hearing that resulted in the judgment made the subject of the complaint or file a timely postjudgment motion, request for findings of fact and conclusions of law, or other notice of appeal; and 4. raise error that is apparent on the face of the record. It is undisputed that GMR established the first three required elements for a restricted appeal. Therefore, the only issue the court must decide is whether error requiring reversal is apparent from the face of the record. GMR contends that there is error requiring reversal on the face of the record because the record does not affirmatively show that GMR was served with process; instead, the secretary of state’s return of service shows that the citation was “not deliverable as addressed” and that the appellee, Michael Walz, provided the secretary of state an incorrect address. Walz contends that because GMR filed a partial reporter’s record that omitted the record of the prove-up hearing without filing a statement of issues as required by Texas Rule of Appellate Procedure 34.6(c)(1), the court must presume that the omitted record supports a finding that GMR was, in fact, served with process contrary to the unrebutted recitations in the secretary of state’s return. The court disagrees. The presumption of rule 34.6(c)(1) does not apply to a restricted appeal attacking a default judgment on the ground that service of process was defective. Strict compliance with the rules for service of citation must be affirmatively shown in the record for a default judgment to withstand attack by restricted appeal. The court is not allowed to apply presumptions in favor of valid issuance, service and return of citation in the face of such a challenge. Thus, it cannot apply the presumption of rule 34.6(c)(1) to supply facts necessary to establish Walz’s strict compliance with the rules for service of citation or to controvert recitations in the secretary of state’s return. The only proof of service in the record before the court is the secretary of state’s return bearing the notation “not deliverable as addressed, unable to forward.” This recitation is prima facie evidence that the address Walz provided to the secretary of state was incorrect and that GMR was not served. The recitals in the secretary of state’s return of service did not cease to be prima facie evidence of the facts of service simply because GMR filed a partial reporter’s record. It was Walz’s responsibility to see that service was properly accomplished and reflected in the record, not GMR’s. “The Rules of Civil Procedure allow for liberal amendment of the return of service to show the true facts of service.” If the facts recited in the secretary of state’s return of service were incorrect, Walz was required to amend the return of service. Walz, however, failed to do this. The court concludes that there is no affirmative showing that Walz served GMR with process. Because there is error on the face of the record, the court reverses the default judgment and remands the case for trial. OPINION: Cayce, C.J.; Cayce, C.J., Livingston and Dauphinot, JJ.

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