McGraw-Hill, Inc. v. Futrell

• Decision Date: 16 January 1992
• Docket Number: No. 01-90-00947-CV,INC,GRAW-HIL,01-90-00947-CV
• Citation: 823 S.W.2d 414
• Parties: Mcand Lance E. Walters, Appellants, v. Charles FUTRELL, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 414

823 S.W.2d 414

McGRAW-HILL, INC. and Lance E. Walters, Appellants, v. Charles FUTRELL, Appellee.

No. 01-90-00947-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 16, 1992.

David H. Donaldson, Austin, for appellants.

John C. Hampton, Bryan, for appellee.

Before TREVATHAN, C.J., and COHEN and O'CONNOR, JJ.

OPINION ON MOTION FOR REHEARING

O'CONNOR, Justice.

The primary issue before this Court is whether a defendant was properly served before a default judgment was entered. We find that it was not, and we reverse.

On motion for rehearing, we deny the motion, withdraw our opinion issued on December 5, 1991, and issue this corrected opinion in its stead.

Fact summary

Charles Futrell, the appellee, sued McGraw-Hill Book Company, A Division of McGraw-Hill, Inc., and Lance E. Walters, the appellants (collectively "McGraw"), for tortious interference with contractual and business relations, conspiracy, fraud, breach of implied covenant of good faith, and breach of contract. Futrell had been retained by McGraw-Hill to revise the ninth edition of a textbook entitled "Fundamentals of Marketing." McGraw contends it was not satisfied with the quality of Futrell's work and after several costly extensions for revisions, terminated the contract. Futrell contends that McGraw did not provide sufficient editorial assistance, guidance, or time to revise his manuscript.

McGraw miscalculated the answer date, and on the morning after the answer was due, the trial court granted a judgment of default in the amount of $1.85 million. Three days after the default judgment was granted, but before McGraw received notice of the default judgment, McGraw removed the case to federal court. McGraw filed a general denial six days after the default judgment was granted. Notice of the default judgment was sent to the wrong address, and McGraw did not acquire actual notice until 20 days later, when Futrell filed a pleading in federal court that disclosed a default judgment had already been entered before the removal. The federal court remanded to state court on July 19, 1990. Once the case was remanded, McGraw timely filed its motion for new trial, which the trial court overruled. This appeal followed.

Defective service

In its first eight points of error, McGraw argues the default judgment is void because service was not proper. We consider only two of those points.

In points of error one through five, McGraw argues the default cannot stand because the return of citation is defective on its face and plaintiff did not properly serve it with citation. A default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the law. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990). There are no presumptions in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1986). In addition, failure to affirmatively show strict compliance with the Texas Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Id.

1. Return not verified

In point of error one, McGraw argues that neither of the returns of the citations was verified, as required by rule 107 of the Texas Rules of Civil Procedure. Effective January 1, 1988, the Rules of Civil Procedure relating to service of process were amended to permit service of citation by private process servers "authorized by law" and by persons authorized by the trial court. TEX.R.CIV.P. 103 Comment (Vernon Supp.1992) ("The amendment makes clear that the courts are permitted to authorize persons other than Sheriffs or Constables to serve citation"). To accommodate to this change, rule 107 was amended to require authorized persons to verify the return of citation. The manner of verification is not specified in the rule, and we have found no authority on point. Presumably, it is the same as verification by affidavit, as provided in other rules such as rule 93 of the Texas Rules of Civil Procedure. See Kilgarlin, Quesada, & Russell, Practicing Law in the "New Age": The 1988 Amendments to the Texas Rules of Civil Procedure, 19 TEX.TECH L.REV. 881, 888-89 (1988). Rule 93, however, specifies the manner of verification as "by affidavit," whereas rule 107 does not.

In construing a statute or rule, we will use the plain and ordinary meaning of a word. Hopkins v. Spring Indep. School Dist., 736 S.W.2d 617, 619 (Tex.1987). This court long ago considered the meaning of "verified," as it was used but undefined in the City of Houston's charter. City of Houston v. Quinones, 172 S.W.2d 187 (Tex.Civ.App.--Galveston 1943), rev'd on other grounds, 142 Tex. 282, 177 S.W.2d 259 (1944). "Verified" was defined as "[a]n acknowledgment of an instrument before a notary public proves or verifies it for record." Id. at 190.

In this case, the process server completed the "Certificate of Delivery" at the bottom of each return, certifying that he delivered to the party a copy of the "instrument." There is nothing on the citation or attached to the citation that can be considered a verification. We sustain point one.

2. Wrong dates for service

In point of error two, McGraw argues that the certificates of delivery recite a date before the suit was filed as the date of service. Futrell does not assert otherwise. The record shows that the process server recited three different dates in his return of citation. One of those dates, the date made part of the certificate of delivery at the bottom of each return, is March 2, 1990. This date is 17 days before the filing of the suit. It is impossible to serve a citation before a suit is filed. George v. Elledge, 261 S.W.2d 201, 201 (Tex.Civ.App.--San Antonio 1953, no writ). The suit must be on file when the citation is issued. Moorehead v. Transp. Bank, 62 S.W.2d 184, 185 (Tex.Civ.App.--Amarillo 1933, no writ). If the citation is issued before the suit is filed, even by one day, the citation is invalid and a default judgment rendered on it is void. Id.

Even if we assume one of the other dates on the citation is the date of delivery, it is not clear which date is the one on which the service was accomplished. We have found no authority holding that one date or another should prevail when there is a discrepancy on the face of the return.

There are no presumptions in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment. A failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Wilson, 800 S.W.2d at 836 (citing Uvalde Country Club v. Martin Linen Supply...