Asset Protection v. Armijo

• Citation: 570 S.W.3d 377
• Decision Date: 23 January 2019
• Docket Number: No. 08-17-00250-CV,08-17-00250-CV
• Court: Court of Appeals of Texas
• Parties: ASSET PROTECTION & SECURITY SERVICES, L.P., Appellant, v. Virginia ARMIJO, Appellee.

570 S.W.3d 377

ASSET PROTECTION & SECURITY SERVICES, L.P., Appellant,

v.Virginia ARMIJO, Appellee.

No. 08-17-00250-CV

Court of Appeals of Texas, El Paso.

January 23, 2019

Hon. John P. Mobbs, for Appellee.

Hon. Vaughan Waters, for Appellant.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This restricted appeal arises from a default judgment entered against an employer in an employment discrimination lawsuit. We are asked to decide if there is error on the face of the record because (1) of typographical errors in the verification on the return of service, (2) a private process server handled the certified mailing of process, and (3) the signature on the "green card" is from an unidentified person. We need only address the last issue and reverse the judgment below.

FACTUAL AND PROCEDURAL HISTORY

Virginia Armijo sued Asset Protection & Security Services, L.P (APS) for employment discrimination. She filed her suit on February 17, 2017, and had the district clerk’s office issue a citation reflecting service by certified mail on APS’s "registered agent, CT Corporation System at 1999 Bryan St., STE 900, Dallas, TX 75201."

A private process completed the return of service. The process server certified in a block labeled "Certificate of Delivery By Mail" that a copy of the citation and Plaintiff’s Original Petition were mailed by registered or certified mail to APS’s agent, "CT Corporation System @ 1999 Bryan St. Ste 900 Dallas, Tx 75201." She attested the delivery was completed on March 8, 2017, as evidenced by an attached postal service Form 3811 (the "green card").

The green card is important to the issue before us. One block on the green card lists the addressee as "Asset Protection + Security Services, LP who may be served with process by serving its registered agent, CT Corporation System @ 1999 Bryan St. Ste 900 Dallas, TX 75201." Another block has a space to be completed upon delivery that asks for a signature. That line is filled in with a handwritten signature. Next to the signature line are two boxes that might be checked, one for "agent" and the other for "addressee." Neither box is checked. A separate line asks for "Received by (Printed Name)" and a date of delivery. That line appears to contain a stamped name: "Chris Wells" and a stamped delivery date of March 8, 2017. A final block asks if the delivery address is different from that stated elsewhere on the card, and if so, to enter the delivery address. That block was left entirely blank.

When APS did not timely answer, Armijo asked the trial court to enter a default judgment. Armijo attached to her motion a document that purports to be from the Texas Secretary of State, dated August 15, 2016, which lists CT Corporation System at the 1999 Bryan Street address as APS’s registered agent. On June 9, 2017 the trial court entered a default judgment on liability only. After a prove-up hearing, the trial court on July 26, 2017 signed a final judgment against APS for $423,460.50. On July 31, 2017 and pursuant to Rule 239a, the district clerk notified APS of the judgment by a letter addressed to CT Corporation System at the Bryan Street address.¹ Armijo abstracted the judgment and sought a writ of execution on August 11, 2017.

APS finally appeared on November 18, 2017 by filing an answer, and motion for new trial. We preface our discussion of APS’s motion for new trial with the disclaimer that the motion was untimely and was not ruled on by the trial court. APS filed the motion under TEX.R.CIV.P. 306a(4) that allows an extending filing window when a litigant only learns of a judgment in the 20th to 90th day from the date of judgment. See Levit v. Adams , 850 S.W.2d 469, 470 (Tex. 1993) ; Graham v. Fashing , 928 S.W.2d 567 (Tex.App.--El Paso 1996, orig. proceeding). APS, however, admitted it learned of the default on the 99th day following the judgment, which places it outside the ambit of Rule 306a. Levit , 850 S.W.2d at 470 ; Graham , 928 S.W.2d at 567. The trial court concluded that it lacked jurisdiction to hear the motion for new trial, and APS does not contend otherwise in this proceeding. Nonetheless, because Armijo considers several statements made in the filing as part of the relevant record, we briefly discuss them.

The motion for new trial asserted the same claimed defects in the return of service that we consider in this appeal. Additionally, the motion asserted that the trial court should grant a new trial under Craddock v. Sunshine Bus Lines, Inc. , 134 Tex. 388, 133 S.W.2d 124 (1939). In support of that claim, APS attached several affidavits to the motion that swore to the following: (1) by June of 2015, APS decided to discontinue using C T Corporation as its agent for service and stopped paying the annual subscription fee; (2) nonetheless, on March 8, 2017, C T Corporation sent an email to three APS employees that did not formally attach the process, but directed the recipients to a location where it could be downloaded; (3) the email specifically references the date and manner of service, the identity of the plaintiff’s attorney, and the method in which to calculate an answer date; (4) of the three email recipients, one was no longer employed and the other two had no responsibility for legal matters, or believed that CT Corporation was no longer the agent for service, and consequently they did not read past the first few lines of the email; (5) on April 17, 2017 C T Corporation formally resigned as the agent for service; (6) APS first learned of the suit on November 2, 2017 when it received a writ of execution.²

After the trial court declined to entertain APS’s motion for new trial, APS filed this restricted appeal.

STANDARD OF REVIEW

A meritorious restricted appeal: (1) must be filed within six months after the judgment was signed, (2) by a movant who was a party to the underlying lawsuit, (3) but who did not participate in the hearing that resulted in the judgment; (4) who did not timely file any post-judgment motions, and (5) error is apparent on the face of the record. See TEX.R.APP.P. 26.1(c) and 30; Alexander v. Lynda’s Boutique , 134 S.W.3d 845, 848 (Tex. 2004) ; Bank of New York v. Chesapeake 34771 Land Trust , 456 S.W.3d 628, 631 (Tex.App.--El Paso 2015, pet. denied). Here, the parties contest only the fourth element--whether error appears on the face of the record.

When reviewing a default judgment in a restricted appeal, we do not indulge any presumptions in favor of proper issuance, service, and return of citation. Primate Constr., Inc. v. Silver , 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); Uvalde Country Club v. Martin Linen Supply Co. , 690 S.W.2d 884, 885 (Tex. 1985) (per curiam); Whiskeman v. Lama , 847 S.W.2d 327, 329 (Tex.App.--El Paso 1993, no writ). Instead, the prevailing party bears the burden to prove proper service of process. Primate Constr. , 884 S.W.2d at 153 ; Whiskeman , 847 S.W.2d at 328-29.

Error is apparent on the face of the record when the record fails to show strict compliance with the rules relating to the issuance, service, and return of citation. Primate Constr. , 884 S.W.2d at 152-53 ; Uvalde Country Club , 690 S.W.2d at 885 ; Whiskeman , 847 S.W.2d at 328-29. A commonly cited example for strict compliance are those cases addressing discrepancies between the name of the defendant being sued and the name of the party served. See Uvalde Country Club , 690 S.W.2d at 885 (petition identified the registered agent for service as "Henry Bunting, Jr." but the citation and return of service reflected delivery to "Henry Bunting"); Hendon v. Pugh , 46 Tex. 211, 212 (1876) (petition identified the defendant as "J.W. Hendon" but return of service reflected delivery to "J.N. Hendon"); Faver v. Robinson , 46 Tex. 204 (1876) (service was on "John R. Favers " while judgment was taken against "John R. Faver"); Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp. , 62 S.W.3d 308, 310 (Tex.App.--Houston [1st Dist.] 2001, pet. denied) (citation issued to "Hercules Concrete Pumping Service, Inc." but return reflected delivery to "Hercules Concrete Pumping"); Fleming v. Hernden , 564 S.W.2d 157, 158-59 (Tex.Civ.App.--El Paso 1978, writ ref'd n.r.e.) (citation by publication defective where defendant was referred to variously as "Kent Ki dder," "Kent Ke dder," "Kent A. D edder" and "Kent A. Kedder."): but see North Carolina Mut. Life Ins. Co. v. Whitworth , 124 S.W.3d 714, 718 (Tex.App.--Austin 2003, pet. denied) (holding that "[n]ot all discrepancies will negate service, however; omission of the business form (like ‘Inc.’), insignificant words (like ‘at’), or an accent mark over a letter from a company name on the service return will not invalidate service.").

Other cases have held that a failure to strictly comply with one or more of the twelve requirements for a citation under TEX.R.CIV.P. 99(b) constitutes an error on the face of the record. See e.g. In Interest of T.J.T. , 486 S.W.3d 675, 679 (Tex.App.--Texarkana 2016, no pet.) (lack of required verbiage as to answer date); Verlander Enterprises, Inc. v. Graham , 932 S.W.2d 259, 262 (Tex.App.--El Paso 1996, no pet.) (lack of seal); Martinez v. Wilber , 810 S.W.2d 461, 463 (Tex.App.--San Antonio 1991, pet. denied) (failure to include cause number on citation); Hance v. Cogswell , 307 S.W.2d 277, 278-80 (Tex.Civ.App.--Austin 1957, no writ) (omission of date of filing of petition, cause number, or date of issuance). The same is true for errors in the multiple requirements of a proper return of citation under TEX.R.CIV.P. 107. See e.g. Midstate Envtl. Services, LP v. Peterson , 435 S.W.3d 287, 290 (Tex.App.--Waco 2014, no pet.) (no showing return was filed, much less within ten-day prior to hearing as required by the rule); Paramount Credit, Inc. v. Montgomery , 420 S.W.3d 226, 233 (Tex.App.--Houston [1st Dist.] 2013, no pet.) (failure to identify name of case, court, or manner of delivery in return); Armendariz v....