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Walters v. Clark3/22/2001
Under a restricted appeal, appellant appeals the trial court's entry of a default judgment for personal-injury liability in an automobile accident. We reverse.
Facts
On September 29, 1996, appellant and appellee were involved in an automobile accident. In her petition, appellee alleged personal injuries and damage to her vehicle.
Appellee filed suit on September 28, 1998, and sought service on appellant in Harris County. Appellee filed an amended petition and sought service by certified mail, return receipt requested on appellant in Georgia. The constable mailed the petition and citation to the Georgia address. The postal service returned the petition and citation to the constable marked "Return to Sender - Insufficient Address."
Then, appellee moved for a default judgment, which the trial court granted on September 13, 1999. The trial court signed the final judgment on September 21, 1999.
Appellant learned of the judgment from his insurer when appellee sent a copy of the judgment to the insurer. Appellant filed a notice of restricted appeal on December 6, 1999.
Discussion
Appellant asserts his appeal satisfies the requirements of a restricted appeal. Tex. R. App. P. 30. In order to successfully bring a restricted appeal, the appellant must show (1) the restricted appeal was filed within six months of the date of the judgment, (2) he was a party to the underlying suit, (3) he did not file a post-judgment motion, request for findings of fact, or a timely notice of appeal, (4) he did not participate in the actual trial of the case, and (5) the trial court erred and the error is apparent on the face of the record. Tex. R. App. P. 30; see, e.g., Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 271 (Tex. 1997). The only requirement at issue here is whether an error appears on the face of the record.
The trial court granted a default judgment even though the postal service had returned the citation as undeliverable. Thus, appellant claims appellee failed to perfect service, which places the trial court's action in granting the default judgment in error.
There is no presumption in favor of valid issuance, service, and return of citation in the review of a no-answer default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). A default judgment cannot withstand a direct attack when the record shows the defendant was not served in strict compliance with applicable requirements. Wood v. Brown, 819 S.W.2d 799, 800 (Tex.1991); Uvalde Country Club, 690 S.W.2d at 885. Failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965).
Here, the line for the addressee's signature on the return receipt is blank. The officer's return for certified mail states the post office returned the certified mail marked "Return to Sender - Insufficient Address."
The notice may be sufficient without appellant's signature if it is apparent that the address was valid and could be located by the postal office. Wright v. Wentzel, 749 S.W.2d 228, 232 (Tex. App.-Houston [1st Dist.] 1988, no writ). Here, the notice was insufficient because the address was not valid and could not be located by the postal office, unlike when a letter is returned as "refused" or "unclaimed." See, e.g., TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 708 (Tex. App.-Fort Worth 1982, no writ) (default judgment cannot be maintained on basis of certified letter returned "Not Deliverable as Addressed, Unable to Forward" because address insufficient).
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