TAC Americas, Inc. F/K/A CSI Control Systems International, Inc. v. Edward Boothe Wanda R. Boothe Jeremy Boothe Zachary Boothe And Emily Boothe

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00222-CV

TAC Americas, Inc. f/k/a CSI Control Systems International, Inc., Appellant

v.

Edward Boothe; Wanda R. Boothe; Jeremy Boothe; Zachary Boothe;

and Emily Boothe, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. GN200124, HONORABLE PETER M. LOWRY, JUDGE PRESIDING

This is an appeal from a no-answer default judgment in favor of appellees Edward,

Wanda, Jeremy, Zachary, and Emily Boothe (together the "Boothes") and against appellant TAC

Americas, Inc., formerly known as CSI Control Systems International, Inc., in a negligence suit. On

appeal, TAC Americas asserts that: (1) the district-court judgment must be reversed because TAC

Americas, through no fault of its own, is unable to procure a reporter's record of the district-court

proceedings; (2) errors in the issuance, service, and return of citation are evident on the face of the

record and warrant reversal of the default judgment entered below; and (3) the record does not

affirmatively show strict compliance with the Texas Rules of Civil Procedure relating to the manner

and mode of service and return of citation. We will reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Edward Boothe was employed as an electrician by the Round Rock Independent

School District. While Boothe was working on an electrical panel at Gattis Elementary School, his

pliers came into contact with the panel's busbars. A busbar is an electrical conductor that provides

a common connection between several circuits. The resulting electrical fire severely injured Boothe,

leaving him with burns on his hands, face, arms, wrist, and neck.

Boothe and his family filed suit alleging negligence against Baird & Hunter Electric,

Silverton Construction Company, and Square D, each a contractor or subcontractor responsible for

the construction of the school or the manufacture or installation of the school's electrical system.

The Boothes later amended their petition to add TAC Americas as a defendant, alleging that TAC

Americas, as the installer of the electrical system, was negligent in failing to properly inspect and

maintain the system, and, as a result of such negligence, Edward Boothe was seriously injured.

The Travis County district clerk issued a citation to "TAC AMERICAS BY

DELIVERING TO ITS REGISTERED AGENT PRENTICE HALL CORPORATION SYSTEM 800

BRAZOS AUSTIN TEXAS 78701." The "Officer's Return of Service" reflects that the amended

petition came into the process server's possession "on 11/19/01 Time: 12:23:26." The return further

states that the process server completed delivery "on 11/19/01 Time: 12:15:00" and that service was

executed at "800 Brazos St. Austin TX 78701" to "Tac Americas, By Delivering To Its Registered

Agent Prentice Hall Corporation System." Finally, the return reflects the following: "

PERSONALLY delivering the document(s) to the person above."

Approximately two months after the district clerk filed the return, the Boothes moved

for a default judgment against TAC Americas. On January 14, 2002, the district court signed an

interlocutory default judgment against TAC Americas, which had neither answered nor appeared.

In April 2002, TAC Americas filed a notice of restricted appeal. See Tex. R. App. P. 30.

DISCUSSION

Restricted Appeal

A restricted appeal is available for the limited purpose of providing a party that did

not participate at trial with the opportunity to correct an erroneous judgment. In re E.K.N ., 24

S.W.3d 586, 590 (Tex. App.--Fort Worth 2000, no pet.) (citing Tex. R. App. P. 30). For a restricted

appeal to be successful: (1) a notice of restricted appeal must be filed within six months after

judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that

resulted in the judgment complained of; (4) who did not file a timely post-judgment motion or

request for findings of fact and conclusions of law; and (5) error must be apparent on the face of the

record. Tex. R. App. P. 30; Stubbs v. Stubbs , 685 S.W.2d 643, 644 (Tex. 1985). The parties join

issue over the final element--whether error exists on the face of the record that would require

reversal of the default judgment. The face of the record, for purposes of restricted appeal, consists

of all papers on file in the appeal. Norman Communications v. Texas Eastman Co. , 955 S.W.2d 269,

270 (Tex. 1997) (citing DSC Fin. Corp. v. Moffitt , 815 S.W.2d 551, 551 (Tex. 1991)).

Citation & Return of Service

By its second and third issues, TAC Americas asserts that errors in the issuance,

service, and return of citation constitute error on the face of the record. Generally, the purpose of

citation is to give the court jurisdiction over the parties and to provide notice to the defendant that

it has been sued by a particular party, asserting a particular claim, in order to satisfy due process and

allow the defendant the opportunity to appear and defend the action. Conseco Fin. Servicing Corp.

v. Klein ISD , 78 S.W.3d 666, 675-676 (Tex. App.--Houston [14th Dist.] 2002, no pet.).

TAC Americas complains, inter alia , that the process server's return reflects a factual

impossibility. The return states that the process server received the citation on November 19, 2001,

at "Time: 12:23:26" and served it on the same day at "Time: 12:15:00." The times reflected are

indisputably in conflict, as the citation could not have been served before it was received.

Proper citation and return of service are crucial to establishing personal jurisdiction.

If the return of service does not strictly comply, then the service is invalid and in personam

jurisdiction cannot be established. Union Pac. Corp. v. Legg , 49 S.W.3d 72, 79 (Tex. App.--Austin

2001, no pet.). There are no presumptions in favor of a valid issuance, service, and return of citation

in the face of an attack on a default judgment by restricted appeal. Primate Constr., Inc. v. Silver ,

884 S.W.2d. 151, 152 (Tex. 1994); Renaissance Park v. Davila , 27 S.W.3d 252, 255 (Tex.

App.--Austin 2000, no pet.). For a default judgment to withstand direct attack, the record must

show strict compliance with the Texas Rules of Civil Procedure governing citation and return of

service. Id. (citing Stubbs , 685 S.W.2d at 644 ). And a plaintiff defending a default judgment must

show strict compliance with the procedural rules governing citation and return of service. Silver , 884

S.W.2d 151 at 152 . This Court has said that "[v]irtually any deviation will be sufficient to set aside

the default judgment" in a restricted appeal. Becker v. Russell , 765 S.W.2d 899, 901 (Tex.

App.--Austin 1989, no writ).

The procedural rules concerning service of process and return of citation must be read

in harmony. "We cannot construe a rule in a vacuum; we must consider all rules pertinent to the

problem, and harmonize them if possible." Templo Ebenezer, Inc. v. Evangelical Assemblies, Inc. ,

734 S.W.2d 770, 772 (Tex. App.--Amarillo 1987, no writ). Rules 16, 105, and 107 each pertain to

service. See Tex. R. Civ. P. 16, 105, 107. We may not isolate one rule and disregard the others in

order to force a meaning the other rules would not permit. Templo Ebenezer , 734 S.W.2d at 772 .

Rule 16, found in the "General Rules" section of the Texas Rules of Civil Procedure,

states that "[e]very officer or authorized person shall endorse on all process and precepts coming into

his hand the day and hour on which he received them . . . and the time and place the process was

served and shall sign the returns officially." Tex. R. Civ. P. 16 (emphasis added). Rules 105 and

107 are found in section 5 of the rules, those pertaining specifically to "Citation." Rule 105 requires

that "[t]he officer or authorized person to whom process is delivered shall endorse thereon the day

and hour on which he received it." Tex. R. Civ. P. 105. Rule 107 provides that "the return of the

officer or authorized person executing the citation shall be endorsed on or attached to the same; it

shall state when the citation was served ." Tex. R. Civ. P. 107 (emphasis added). "[T]he term

'process' refers to the means by which a court compels compliance with its demands." 62 Am. Jur.

2d Process § 1 (1990). "[A] citation is a writ of the court addressed to an officer of the court, and

commands him to do certain things." Carpenter v. Anderson , 33 Tex. Civ. App. 484 , 77 S.W. 291,

293 (1903, writ ref'd). "A citation is usually the original process in any proceeding where used, and

is in that respect analogous to the writ of capias or summons at law, and the subpoena in chancery."

72 C.J.S. Process § 2 (1987). Probably because it is axiomatic that a "citation" is a "process," Texas

courts do not seem to have considered whether rule 16, on the one hand, and rules 105 and 107, on

the other, require the same actions by the process server.

The Boothes argue that the hour of service is immaterial and inconsequential. They

contend that a precise statement of time is only necessary to chronicle when the citation came into

the officer's possession, and not when the service was executed. But Rule 16 explicitly requires the

document to affirmatively state " the time . . . the process was served." Tex. R. Civ. P. 16 (emphasis

added). Although the Boothes, relying on Brown-McKee, Inc. v. J.F. Bryan & Associates , 522

S.W.2d 958, 959 (Tex. Civ. App.--Texarkana 1975, no writ), contend that redundant or surplus

matter on the face of a return should be disregarded, we disagree that the time of receipt or service

of the citation is either redundant or surplusage. Not only are such times required by the rules of

procedure, but also the return in Brown-McKee did in fact reflect the time of the citation's delivery.

Id. Thus, with the exception of generally condemning redundancies and surplusage, Brown-McKee

does not aid this Court in the resolution of the issue before us. Read in conjunction with rules 16

and 105, rule 107's use of "when," instead of "time" or "hour," does not provide a different

sufficiency test. Therefore, we cannot say that notation chronicling the exact time service was

executed is "redundant or surplus matter" to be disregarded, as the Boothes contend.

The return purports to state the time service was executed. However, the return of

service does not strictly comply with the rules of civil procedure because the return indicates that the

process server delivered the documents at "Time: 12:15:00," but that the documents first came into

his hand at "Time: 12:23:26." The process server could not have executed service before receiving

the citation. The parties do not direct us to, nor have we found, any authority directly on point. TAC

Americas relies on Grammar v. State in which the trial court rendered a default judgment against the

sureties on a bail bond. 89 Tex. Crim. 187 , 230 S.W. 165 , 165 (1921) . The citation's return stated

that the citation was received by the process server on January 23, 1920 , but was executed on

February 2, 1912 . Id. In reversing the trial-court judgment, the court of criminal appeals found the

law well settled: "[T]he service on the sureties is so defective in this case that it will not support the

final judgment by default taken thereon . . . . It is not necessary to quote authorities for the purpose

of showing that this character of return is insufficient to support a judgment by default . . . ." Id.

The Boothes, although not attempting to distinguish Grammar , counter with Clark

v. Wilcox , 31 Tex. 322 (1868). In Clark , the return was silent as to any event time; the process server

simply noted that the citation was received on April 5, 1860, and executed on "the 7th of the same

month." Id. at 328 . The Boothes argue that Clark supports the proposition that "[t]o the extent the

time of service acts must be recorded on the return, the requisites are the day, month, and year, and

no more." The Clark court, however, was not directly concerned with a temporal issue. Stating that

it refused to "yield to strict grammatical rules," the supreme court held that a return's notation that

it was executed by "delivering in person to Andrew Herron a certified copy of petition and copy of

this writ" satisfied the statutory requirement that the process server was to execute the process "by

delivering to the party or parties in person upon whom he is required to serve it a copy thereof

. . . ," the argument being that the location of the phrase "in person" in the return indicated that the

process server delivered the citation himself , as opposed to serving Herron . Id. at 328-31 . (1) The

Boothes' argument is based on obiter dictum found in the court's general discussion of what was

then required by statute to appear in a return:

[The law], among other things, requires that the return shall state "fully the time and

manner of service." This does not mean senseless or unnecessary details of the act

of service and of the time when performed ; such, for example, as where the officer

should note the hour of the day, as well as the day of the month and the year, and

couple with it a statement of the manner in which he approached the party served, the

conversation that ensued, the attitude which he assumed in the final act of delivering

the papers, and his exit from the scene of his labors. The manner is personal service,

and the time the day, month, and year ; and it was because this manner of service was

not stated in the return of the officer, in the case of Graves v. Robertson, [ 22 Tex.

130 (1858),] that it was held insufficient. The return in that case was as follows:

"Executed August 10, 1857, by serving defendant with a true copy of this writ and

a certified copy of plaintiff's petition."

Id. at 329 (emphasis added). (2)

Clark generally has been cited only for the proposition that the mere omission of the

hour of service will not be fatal. See, e.g. , 3 Roy W. McDonald & Elaine A. Grafton Carlson, Texas

Civil Practice § 11:66 (2d ed. 2001). (3) But the facts of this case do not present this Court with a

problem of omission. Rather, we are presented with a problem of commission. We need not, and

do not, consider whether the citation would support the default judgment had the return contained

no reference to the time of service. However, we cannot ignore temporal references in the citation's

return that are nonsensical and incapable of reconciliation.

It is the responsibility of the party requesting service, and not the process server, to

see that process is properly accomplished. Silver , 884 S.W.2d at 153 (citing Tex. R. Civ. P 99(a)).

This responsibility extends to seeing that service is properly reflected in the record. Id. The rules

of civil procedure also contain an error-correcting provision. Rule 118 allows for liberal amendment

of the return of service in order to show the true facts of service. Id. (citing Tex. R. Civ. P. 118).

And "[i]f the facts as recited in the [process server's] return . . . are incorrect and do not show proper

service, the one requesting service must amend the return prior to judgment ." Id. (emphasis added).

This is not a new concept. See Graves v. Robertson , 22 Tex. 130, 133 (1858) ("It is an easy matter

for the parties interested, before asking the courts to render a judgment by default, to look to the

return; and if it be not in proper form, in almost every case, the officer who made the return can be

brought into court to amend it."). The Boothes, however, did not seek to amend the return of service.

As a result, there remains an obvious defect on the face of the record. The return presents an

irreconcilable inconsistency in the times of receipt and execution; it must be held invalid. Because

it is impossible for the process server to have served the documents before he received them, we hold

that error appears on the face of the record.

"For well over a century, [the Texas Supreme Court] has required that strict

compliance with the rules of service of citation affirmatively appear on the record in order for a

default judgment to withstand direct attack." Silver , 884 S.W.2d at 152 (citing Wilson v. Dunn , 800

S.W.2d 833, 836 (Tex. 1990); Uvalde County Club v. Martin Linen Supply Co. , 690 S.W.2d 884,

886 (Tex. 1985); McKanna v. Edgar , 388 S.W.2d 927, 929 (Tex. 1965); Flynt v. Kingsville , 125

Tex. 510 , 82 S.W.2d 934, 934 (1935); Sloan v. Batte , 46 Tex. 215, 216 (1876); Roberts v.

Stockslager , 4 Tex. 307 , 309 (1849)). We conclude that the record does not affirmatively show strict

compliance with the Texas Rules of Civil Procedure relating to service and return of citation. TAC

Americas' second and third issues are sustained. (4)

CONCLUSION

We reverse the judgment of the district court and remand the case for further

proceedings not inconsistent with this opinion.

Lee Yeakel, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Reversed and Remanded

Filed: December 12, 2002

Publish

1. Writing for the court, Justice Hamilton observed:

There can be no reasonable doubt as to what was intended to be expressed, and

the objection made is being critical overmuch. If the same strictness of

grammatical construction contended for here were applied to all the records and

judgments in the courts of the country, they would be swept as with a tornado,

and judicial proceedings would fall around us like leaves in autumn.

Clark v. Wilcox , 31 Tex. 322, 331 (1868).

2. The Robertson court held that the recitation "serving the defendant" was defective for not

" stating fully the manner of service." Graves v. Robertson , 22 Tex. 130, 133 (1858). "We will

require the return to show that copies of the writ and petition were delivered to the party upon whom

the officer is required to serve them." Id.

3. Clark is of dubious precedential value. The United States Congress refused to approve the

Texas Constitution of 1866. See Marian Boner, A Reference Guide to Texas Law and Legal History

29 (1976). "From 1867 to 1870, the Texas Supreme Court (known as the Military Court) was

composed of justices appointed by the military commander of Texas [General Philip H. Sheridan]

during Reconstruction. The decisions of the Military Court . . . lacked Texas constitutional basis and

are generally not given precedential weight." Texas Rules of Form 9 n.3 (9th ed. 1997); Boner,

supra , at 29 ("Since [the Military Court] had no constitutional basis, its decisions are generally

considered to have little or no precedential value."); see also Cropper v. Caterpillar Tractor Co. , 754

S.W.2d 646, 654 (Tex. 1988) (Robertson, J., dissenting) (reliance on authority from reconstruction

era should be discouraged).

4. Because we have sustained TAC Americas' second and third issues on this basis, we need

not address either TAC Americas' remaining allegations under those issues or its first issue. See

Tex. R. App. P. 47.1 (opinions to be as brief as practicable).