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holding that "the failure of the clerk to affix [a court] seal to citation is fatal to a default judgment."
Summary of this case from Acadian Props. Austin v. Kjmonte Invs.Opinion
No. 05-08-00990-CV
Opinion issued December 1, 2009.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. 07-14531-E.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
This is a restricted appeal from a default judgment against appellant Ray Henderson Wells, Jr. See Tex. R. Civ. P. 30. Appellee Hudson Keyse, LLP ("Hudson") sued Wells to recover a debt owed on a credit card agreement. Citation was issued and served. Wells did not answer. Hudson sought a default judgment, supported by affidavit, which the trial court granted. The trial court signed a default judgment awarding Hudson $9,400.88, plus interest, attorney's fees, and costs of court. Wells timely filed a notice of restricted appeal, and in two issues he argues the face of the record does not affirmatively show that issuance, service, and return of process in his case were in strict compliance with the Texas Rules of Civil Procedure. For the reasons discussed below, we affirm the trial court's judgment. A restricted appeal (1) must be brought within six months of the date of judgment; (2) by a party to the suit who did not participate in the trial; and (3) the error complained of must be apparent from the face of the record. Tex. Rs. App. P. 26.1(c), 30; Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 289 (Tex. App.-Dallas 2003, no pet.). It is undisputed that Wells filed this restricted appeal within six months of the judgment and he did not participate in the default hearing or otherwise below. Thus, the only question we must resolve is whether error is apparent on the face of the record. See Wachovia Bank of Del., N.A. v. Gilliam, 215 S.W.3d 848, 849 (Tex. 2007). Wells contends error is apparent on the face of the record because the citation bears no seal of court and the process server endorsed the day and hour he received the citation on his return of service, rather than on the citation itself. In a restricted appeal from a default judgment, we indulge no presumptions in favor of valid issuance, service, or return of service. Id. at 850; Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180 S.W.3d 903, 905 (Tex. App.-Dallas 2005, pet. denied). If the record fails to show strict compliance with the rules of civil procedure governing service of citation, then the attempted service of process is invalid and the default judgment is void. Westcliffe, Inc., 105 S.W.3d at 290.
In his first issue, Wells charges there is error on the face of the record because the citation does not bear the seal of the issuing court as required by the rules of civil procedure. See Tex. R. Civ. P. 15 ("unless otherwise specially provided . . . every such writ and process . . . shall be dated and attested by the clerk with the seal of the court impressed thereon"); Tex. R. Civ. P. 99.2(b) ("The citation shall . . . be signed by the clerk under seal of court"). Texas statute provides that:
(a) Each county court shall be provided with a seal that has a star with five points engraved in the center. The seal must also have "County Court of _______ County, Texas" engraved on it.
(b) The impress of the seal shall be attached to all process other than subpoenas issued out of the court and shall be used to authenticate the official acts of the county clerk and county judge.
Tex. Gov't Code Ann. § 26.005 (Vernon 2004). And well-settled Texas case law holds that the failure of the clerk to affix this seal to citation is fatal to a default judgment. See, e.g., Robinson v. Horton, 36 Tex. Civ. App. 333, 81 S.W. 1044, 1044-45 (1904) ("the statute requiring the clerk to affix his seal to the citation must be complied with"); Barnett v. Alamo Lumber Co., 154 S.W. 662 (Tex. Civ. App.-Galveston 1913) ("a citation which has been served on a defendant, and to which a seal has not been affixed, will not support a judgment by default").
However, in this case, the clerk did not fail to affix his seal to the citation issued in Wells's case. The Dallas County Clerk has filed a supplemental clerk's record in this appeal. The supplement attaches and certifies the authenticity of a copy of the citation and return of service in Wells's case, and it further certifies: "The original document does contain the embossed court seal of County Court at Law No. 5." Accordingly, we overrule Wells's first issue.
In his second issue, Wells contends there is error on the face of the record because the process server endorsed the day and time he received the citation on his return of service, rather than on the citation itself. Wells offers no authority supporting this argument. His complaint implicates three rules of civil procedure. Rule 16 states:
Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially.
Tex. R. Civ. P. 16. Rule 105 states:
The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay.
Tex. R. Civ. P. 105. And finally, Rule 107, in relevant part, states:
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person.
Tex. R. Civ. P. 107. Reading these rules together, it is clear the information required from the officer or authorized person-including the date and hour he received the citation-are properly entered on the citation itself or on the officer's return of service, which is attached to the citation. Thus, we conclude that when the process server entered the date and hour he received the citation upon his return of service, and attached that return of service to the citation, he had strictly complied with his obligations under the rules of civil procedure. We overrule Wells's second issue as well.
We affirm the trial court's judgment.