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Olympia Marble & Granite v. Mayes5/4/2000
OPINION ON REHEARING
This is a limited appeal from a default judgment against Olympia Marble & Granite (Olympia), the defendant below and appellant here, in favor of Christopher Mayes and Cynthia Mayes (the Mayes), the plaintiffs below and appellees here. In an opinion dated January 13, 2000, we dismissed the appeal for want of jurisdiction.
Olympia filed a motion for rehearing. We grant the motion, withdraw our opinion of January 13, 2000, and issue this opinion in its place.
Background
In June 1994, the Mayes sued Olympia for personal injuries Christopher suffered in 1992 while lifting marble tables. When service on Olympia was unsuccessful, the Mayes filed a motion for substituted service supported by an affidavit stating:
On July, 1994, I spoke with Mr. Raffi B. Yegyayan, owner of Olympus Marble and Granite, and he advised that he had purchased the business telephone number of Olympia Marble and Granite from Mr. Dimitrios Bissias, and that Mr. Bissias had returned to Greece to live.
On August 15, 1994, I spoke with Mr. Angelo Dimitrios Bissias, who resides at 427 Bayou Cove, Houston, Texas, in an attempt to determine if his father, Mr. Dimitrios George Bissias had in fact returned to Greece to live. Mr. Angelo Bissias advised that his father, Dimitrios George Bissias was presently living in Athens, Greece, and had been living there for approximately one (1) year. Mr. Angelo Bissias indicated that Dimitrios Bissias would be returning to the United States over the Christmas holidays to visit, and he would be in contact with him during that period of time.
The trial court ordered substituted service on Olympia by serving its owner Dimitrios Bissias, by serving anyone over 16 years of age residing at 427 Bayou Cove. The constable filed his return, stating service was executed on February 3, 1995 at 427 Bayou Cove on "Dimitrios Bissias per Rule 106 by delivering to w/m over 16 years of age at address."
Olympia did not answer or otherwise appear. Default judgment against Olympia was granted and the judge signed a judgment on November 7, 1997 (the November Judgment). The November Judgment awarded compensatory damages and prejudgment interest, but did not include an amount for prejudgment interest. Instead, the trial court drew a line through the space in which a prejudgment interest amount would have been inserted, leaving the words awarding prejudgment interest in the judgment. The judge added his initials after the line drawn through the blank. On January 29, 1998, the trial court signed what purported to be an amended final judgment (the January Judgment), which was identical to the November Judgment except that it included an amount for prejudgment interest.
On July 29, 1998, Olympia filed a restricted appeal under Texas Rule of Appellate Procedure 25.1(d)(7). On appeal, Olympia challenges the default judgment on the grounds that service was invalid because (a) the affidavit supporting the motion for substituted service was deficient, (b) proof of service did not comply with the trial court's order, and (c) service of process was not reasonably effective to give Olympia notice of the suit.
Timeliness of Olympia's Appeal
In a single cross-point, the Mayes assert this Court does not have jurisdiction because Olympia's restricted appeal was filed more than six months after the signing of the November Judgment. See Tex. R. App. P. 26.1(c) (requiring restricted appeals to be filed within six months after signing of judgment). Because the Mayes's cross-point affects this Court's jurisdiction, we address it first.
A final judgment is one that disposes
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