Combustion Engineering11/21/2002
In this appeal from a no-answer default judgment, we are asked to decide whether a rule 11 agreement, filed after the judgment was granted, cured a deficiency in service of process. We hold that because it did not, the trial court never acquired in personam jurisdiction over appellant, and the judgment is therefore void. We reverse and remand.
In a Fourth Amended Petition filed October 26, 1999, in an ongoing lawsuit initially brought by Manuel Narvaez and others on August 28, 1995, appellees were added as additional plaintiffs and appellant, Combustion Engineering, Inc., was added as an additional defendant. The petition alleged that appellant could be served with process " hrough Connecticut Valley Claim Service Company ("CVCSC"), 525 Brook Street, Rock Hill, Connecticut 06067, via certified mail, return receipt requested." Connecticut Valley was not otherwise identified, nor was any explanation given as to why appellant should be served through it. The non-resident citation issued by the district clerk is addressed to: "COMBUSTION ENGINEERING, INC., C/O CONNECTICUT VALLEY CLAIM SERVICE COMPANY ("CVCSC"), 525 BROOK STREET, ROCK HILL, CONNECTICUT 06067, the defendant." An affidavit signed by Melanie A. Fagan attests that citation was served on appellant "by delivering to: Combustion Engineering, Inc., by delivering to: CVCSC/Registered Agent, by delivering to: M.C./Authorized Agent . . ." The signature on the return receipt is "MC."
On August 14, 2000, a Fifth Amended Petition was filed. Although appellees were named in the style of the pleading, their names were omitted from the paragraph identifying the plaintiffs in the petition, the specific "Damages" section of the pleading, and the prayer. The Fifth Amended Petition was the live pleading on April 9, 2001, the day the case was called for trial. On that day, appellees were granted a no-answer default judgment against appellant and evidence on damages was presented the following day. The judgment awarding damages to appellees, signed on April 11, 2001, stated that because the order did not dispose of all issues and claims in the case, it was not a final judgment. Appellant filed a motion to vacate judgment or, alternatively, motion for new trial on May 10, 2001. Without ruling on appellant's motion, the trial court severed appellees' claims on September 10, 2001 from the main cause of action.
In its first issue, appellant contends that on the date the judgment was granted, the trial court had not acquired in personam jurisdiction over it because the service of process was fatally flawed. No judgment can be rendered against a defendant unless properly served with citation, upon acceptance of or waiver of service, or upon an appearance by the defendant. Tex. R. Civ. P. 124; See Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.CCorpus Christi 1992, no writ) (op. on reh'g) ("Rules relating to service of process are mandatory, and a failure to comply therewith, if a judgment be rendered against a party who was not served in accordance with those rules (and who did not waive service of citation or appear voluntarily) renders the judgment void.").
Service on a foreign corporation is to be made upon its president, any vice-president or its registered agent for service. Tex. Bus. Corp. Act Ann. art. 2.11, ยง A (Vernon 1980). Here, the citation was directed to appellant, identified in the petition as a foreign corporation, in care of Connecticut Valley Claims Service Company. Connecticut Valley's identity or relationship to appellant, however, was not alleged. The return also fails to reflect that service was made on any of appellant's officers or its registered agent for service. It is clear, therefore, that service
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