# Higginbotham v. General Life & Accident Insurance Co. > Texas Supreme Court · October 10, 1990 · 34 Tex. Sup. Ct. J. 16 URL: https://www.frixlaw.com/law-library/cases/9776859 ## Case - **Full name:** Dorothy L. HIGGINBOTHAM and John G. Higginbotham, Petitioners, v. GENERAL LIFE AND ACCIDENT INSURANCE COMPANY, Et Al., Respondents - **Court:** Texas Supreme Court - **Decided:** October 10, 1990 - **Citations:** 34 Tex. Sup. Ct. J. 16; 796 S.W.2d 695; 1990 Tex. LEXIS 121; 1990 WL 150067 - **Precedential status:** Published - **Opinion:** Dissent by Phillips - **Judges:** Ray, Phillips, Cook, Hightower, Hecht - **Cited by:** 58 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776859 ## How later opinions describe it (automated extraction) - holding recitation in order denying defendants’ motions for new trial after default judgment and while trial court retained plenary power, indicating service was proper, was tantamount to order amending the return of citation under rule 118 to reflect service during normal bus… - holding recitation in order denying defendants’ new-trial motions after default judgment and while trial court retained plenary power indicating service was proper was tantamount to order amending citation return under rule 118 reflecting proper service - stating trial court Aexpressly concluded@ that service was proper and thus found all necessary prerequisites for proper service - recognizing a trial court’s authority to amend proof of process in relation to a motion for new trial ## Opinion text PHILLIPS, Chief Justice, dissenting. I dissent. The court’s holding in this case is inconsistent with settled Texas authority regarding the sufficiency of service in default judgments. When a defendant alleges defective service in an appeal from a default judgment, the ordinary presumptions supporting the validity of the judgment do not apply. As we explained in Flynt v. City of Kingsville, 125 Tex. 510 , 82 S.W.2d 934 (1935): *698 On a direct attack ... the usual presumption of service because of the recital in the judgment, “that defendants though duly and legally cited to appear and answer, came not but wholly made default,” does not obtain, and the error resulting from the absence in the record of the necessary showing necessitates a reversal of the judgment. Thus, it is “the established law of this State that it is imperative and essential that the record affirmatively show a strict compliance with the provided mode of service.” McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). This showing must be made from the record that was actually before the trial court when the default judgment was signed, unless the record is amended pursuant to Texas Rule of Civil Procedure 118. See, e.g., Cox Marketing, Inc. v. Adams, 688 S.W.2d 215, 217-18 (Tex.App.-El Paso 1985, no writ) (cost and supersedeas bonds signed by defendant’s president cannot establish validity of service on signer since neither bond was on file when default judgment signed). The return of service on the two defendants in this case was as follows: PL. 12 [[Image here]] PL. 13 [[Image here]] Both of these returns are defective, as they do not, on the record in this case, affirmatively reflect compliance with any applicable service statute. These defendants were amenable to service under at least two statutes. The first is article 2.11 of the Texas Business Corporation Act, which provides that a domestic corporation which maintains a registered agent within the state may be served by delivering process to the president, any vice president, or the registered agent of the corporation. The return of service on National Benefit Life states that delivery of process was made on Joyce Brown, but it does not state whether she was the president, a vice president, or the registered agent of that defendant. As neither the petition nor the citation supply this necessary information, the service does not satisfy article 2.11. The return of service on General Life and Accident Insurance Company, on the other hand, is regular on its face, since it *699 states that Joyce Brown is the registered agent of that defendant. Recitations in the officer’s return have been held to be prima facie evidence of proper service. See National Med. Enterprises of Texas, Inc. v. Wedman, 676 S.W.2d 712, 715 (Tex.App.1984, no writ); contra NBS Southern, Inc. v. The Mail Box, Inc., 712 S.W.2d 470 (Tex.App.-Dallas 1989, no writ). However, in its motion for new trial, General Life established by uncontroverted evidence that Ms. Brown was not its registered agent, and the trial court so found in its findings of fact and conclusions of law. Thus, neither defendant was properly served under article 2.11. The second possible statute under which service was authorized was article 3.64 of the Texas Insurance Code, then in effect but now repealed. That statute provided that service could be effected on a “domestic” life, health and accident insurance company by serving process “only on the president, or any active vice president, or secretary, or general counsel residing at the home office of the company, or by leaving a copy of same at the home office of such company during business hours.” The Higginbothams argue that service was properly effected on both defendants under this statute. If so, such proper service was not reflected in the officer’s returns. Joyce Brown’s position was not designated on National Benefit’s return, and nothing in the petition or citation demonstrates that she met one of the applicable categories for accepting service. And although she was designated as registered agent on the return of service on General Life, the evidence presented to and accepted by the trial court demonstrated that this statement was false. Hence, the only remaining avenue of service under the statute was by leaving process at the home office. Nothing in the return on either defendant reflects that “3900 S. Fwy” was the home office of either company, nor is such information supplied by the citation. The plaintiffs’ original petition stated as follows: Defendants are domestic insurance com-' panies with home offices in Tarrant County, Texas, and registered to conduct business as insurance companies in the state of Texas. Defendants may be served process at their address, 3900 South Freeway, Fort Worth, Texas 76110. Since an “address” is not necessarily a home office, the recitals in the petition fall short of supplying the necessary proof that service was effected on defendants at their home office, as the statute requires. Although the trial court made a finding of fact that this address was the home office, apparently based on evidence presented at the hearing on motion for new trial, such “post-judgment” evidence cannot supply necessary information which was not in the record when the judgment was signed. See Cox, 688 S.W.2d at 218 . Because the face of the record does not reflect proper service, and because the Higginbothams made no attempt to amend the record under Rule 118, the companies are entitled to a new trial. These rules, while complicated, have been developed by our courts to protect the rights of all litigants. As we explained in Finlay v. Jones, 435 S.W.2d 136, 138-39 (Tex.1968): The two basic judicial decisions a trial judge must make before rendering and entering a default judgment are (1) that the court has jurisdiction of the subject matter and the parties to the suit, and (2) that, on the record, the case is ripe for judgment. These decisions cannot possibly be clerical because the court has no more solemn judicial obligation than that of seeing that no litigant is unjustly saddled with a judgment in the absence of notice and a hearing. Today, the court changes these rules. It deems the trial court’s explanation of its ruling, based on testimony offered at the hearing on defendant’s motion for new trial, as “tantamount to an order amending the return of citation” under Texas Rule of Civil Procedure 118. The court’s sole authority for this remarkable holding is London v. Chandler, 406 S.W.2d 203 (Tex.1966). This reliance is misplaced. London cited Rule 118 only to explain that the availability of amendment demonstrates that a technical defect in a citation does not render service thereunder absolutely void. *700 Id. at 204 . Neither London nor any other Texas ease has ever suggested that a citation or return may be amended by implication. By its terms, the rule obviously contemplates a physical substitution of a corrected instrument into the record. See, e.g., Mylonas v. Texas Commerce Bank— Westwood, 678 S.W.2d 519 (Tex.App.—Houston [14th Dist.] 1984, no writ). At the most, it might conceivably be expanded to encompass an affidavit from the officer who committed the error. See generally Zaragoza v. de la Paz Morales, 616 S.W.2d 295, 296 (Tex.Civ.App.-Eastland 1981, no writ) (on rehearing). If the court desires to change Rule 118, it should do so by amendment, not by a tortured reading of a prior opinion. I would not so cavalierly alter Texas law. In light of the Higginbothams’ failure to establish valid service, I would affirm the judgment of the court of appeals and remand the cause for trial. I therefore find it unnecessary to discuss whether the court of appeals erred in its holding that the Higginbothams were required to establish on the face of the record that the time of service was in fact during business hours, or whether the insurance companies established a right to new trial under the Craddock standards. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388 , 133 S.W.2d 124 (1939). COOK, HIGHTOWER, and HECHT, JJ., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776859. Public record. Not legal advice.