Laas v. Williamson

The return of citation in the clerk's record is unverified and bears no acknowledgment. Because the record does not affirmatively show a verification of the return in strict compliance with Texas Rule of Civil Procedure 107, there is error apparent on the face of the record.

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Click here for the full text of this decision FACTS:This is a restricted appeal in a personal injury case arising out of an automobile accident. The appellant, David Laas, seeks to set aside a $1,090,795 default judgment based on defective service of process. HOLDING:Reversed and remanded. “[S]trict compliance with the rules for service of citation [must] affirmatively appear on the record in order for a default judgment to withstand direct attack.” Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). “There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment.” The rules of civil procedure allow for liberal amendment of the return of service to show the true facts of service, but “the one requesting service must amend the return prior to judgment.” Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695 (Tex. 1990) distinguished regular appeals from what is now a restricted appeal, as follows: “Most of these opinions addressing the requirement that the record show strict compliance are writ of error attacks on default judgments. In such cases there is no record of service other than the citation return, and its recitations, taken as true, must show strict compliance with service requirements. We are not to be understood as holding that the citation return alone in this case would have been sufficient to show valid service. Our holding in this case is restricted to situations in which there is a record (such as the evidence at the hearing on motion for new trial) showing strict compliance with a valid method of service and an order expressly amending the return or that is tantamount to an order amending the return of citation.” The Higginbotham rationale is inapposite where no order expressly granting leave to amend the return appears in the record. Seib v. Bekker, 964 S.W.2d 25, 28-29 (Tex. App. Tyler 1997, no writ). The situation in this case is not one where the trial court granted leave to amend the return of citation while it retained plenary power of the Oct. 7, 2003, judgment. First, the trial court never granted leave to amend the return. Second, Williamson filed her motion to amend the return after Laas filed his Texas Rule of Civil Procedure 306a(4) motion, but she contested the Rule 306a(4) motion and the trial court did not correct the date of judgment pursuant to Rule 306a(5). Thus, Primate controls, not Higginbotham. Citation may be served by any sheriff or constable or other person authorized by law, or by any person of at least 18 years of age authorized by law or by written court order. Texas Rule of Civil Procedure 103. The return of service must be endorsed; if the return is by an authorized person, it must be verified. Rule 107. In this case, the return is not signed by Guanere in any official capacity; therefore, it appears service was performed by a private process server. Case law holds that Rule 107 requires an acknowledgment of the instrument before a notary public. The return of citation in the clerk’s record is unverified and bears no acknowledgment. Because the record does not affirmatively show a verification of the return in strict compliance with Rule 107, there is error apparent on the face of the record. OPINION:Steve McKeithen, C.J.; McKeithen, C.J., Gaultney and Kreger, JJ.

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