Opinion issued June 5, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00521-CV
STANLEY KUBOVY, INDIVIDUALLY AND D/B/A S & K IMPORTS, Appellant
V.
CINTAS CORPORATION, Appellee
On Appeal from the County Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 746,671
MEMORANDUM OPINION
This is a restricted appeal from the trial court’s rendition of default judgment for plaintiff/appellee Cintas Corporation against defendant/appellant Stanley Kubovy, individually and d/b/a S & K Imports. In his sole point of error, Kubovy contends that the trial court did not have personal jurisdiction over him because service of process was defective. We affirm.
Factual and Procedural Background
Kubovy and Cintas entered into a five-year contract that called for Cintas to lease uniforms to S & K Import’s employees. Kubovy terminated the contract before its expiration, ignored unpaid invoices, and would not pay for damages to some of the uniforms rented. Cintas sued Kubovy for breach of contract, seeking liquidated damages as provided for in the contract, pre-and post-judgment interest, and attorney’s fees. Process was served, and a return was filed with the trial court that showed an incorrect year and reflected the street address but omitted the city and state where process was served. The process server filed an amended return which corrected the date and added the city and state. Kubovy did not answer the suit or appear in court. After a brief hearing, the trial court rendered a default judgment for Cintas, awarding liquidated damages and interest of $4,858.58 and attorney’s fees of $2,000.
Personal Jurisdiction
Kubovy contends that the trial court did not have personal jurisdiction to render a judgment against him because the amended service of process was fatally defective. He contends that the amended return does not contain a correct description of the petition served or state the manner of service of the citation.
A party against whom a default judgment has been rendered may bring a restricted appeal. See Tex. R. App. P. 30. The restricted appeal must be brought within six months of the date of judgment. Tex. R. App. P. 26.1(c). The elements necessary to succeed on a restricted appeal are: (1) a notice of restricted appeal must be filed within six months after the judgment is signed, (2) by a party to the lawsuit, (3) who did not participate in the hearing that resulted in the judgment complained of and did not file a timely postjudgment motion or request for findings of fact and conclusions of law, and (4) error must be apparent on the face of the record. Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
A default judgment is void unless the record shows strict compliance with the rules governing issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). An appeal by writ of error is a direct attack on a judgment. Faggett v. Hargrove, 921 S.W.2d 274, 276 (Tex. App.—Houston [1st Dist.] 1995, no writ). A default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the Texas Rules of Civil Procedure. Id. In contrast to the usual rule that all presumptions will be made in support of a judgment, there are no presumptions of valid issuance, service, and return of citation when examining a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Jurisdiction over the defendant must affirmatively appear by a showing of due service of citation, independent of the recitals in the default judgment. Faggett, 921 S.W.2d 276.
Citation
To be valid, a citation must comply with the following 12 requirements:
The citation shall (1) be styled “The State of Texas,” (2) be signed by the clerk under seal of court, (3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of the plaintiff, (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation, (11) contain address of the clerk, and (12) shall [sic] notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition.
Tex. R. Civ. P. 99(b)(1)-(12).
The record reflects that the citation complied in full with all of the required elements—it was styled “The State of Texas,” and was signed by the clerk under seal of court; it contained the name and location of the court and correctly showed the date the petition was filed and the date the citation was issued; it showed the correct file number and the names of the parties; it was directed to the defendant; it showed the name and address of Cintas’s attorney; it contained the time limit for Kubovy to file a written answer with the clerk who issued citation and the clerk’s address; and it notified Kubovy that, if he did not answer, a default judgment could be rendered against him.
Service & Return of Citation
The method of service is prescribed by rule 106, which provides in relevant part that citation shall be served by any authorized person by delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed on it and a copy of the petition attached to it. Tex. R. Civ. P. 106(a)(1). Return of service is governed by rule 107, which provides in relevant part that the return shall (1) state when the citation was served and the manner of service, and (2) be signed and verified by the authorized person who executes the citation. Tex. R. Civ. P. 107. Finally, the citation and proof of service must be on file for at least 10 days before default judgment may be rendered.
Dan P. McAlister, the authorized person who served the citation, filed a return showing that the citation and a copy of the petition were delivered in person to Kubovy on at 1:15 p.m. on December 30, 2001 at 6443 Brittmore. The return was signed and verified. This return of service contained two errors: it incorrectly showed the year of service as 2001, when it should have shown the year 2000, and it showed only the street address, not the city or state where citation was served. Four months later, McAlister filed with the trial court an affidavit of amended service in which he changed the date of service from December 30, 2001 to December 30, 2000 and identified the location of service as 6443 Brittmore, Houston Texas 77041. See Tex. R. Civ. P. 118 (providing that any process or proof of service may be amended before judgment); Walker v. Brodhead, 828 S.W.2d 278, 282 (Tex. App.—Austin 1992, writ denied) (noting that return of citation, if erroneous, may be corrected).
Alleged Defects
Relying on Primate Construction, Kubovy contends the return was fatally defective because it did not contain a correct description of the petition served. See 884 S.W.2d at 152. Kubovy also argues that because the manner of service is not stated in the amended return, it is fatally defective. We reject both of these arguments.
First, in Primate, the company was named as a defendant only in the second amended petition, but the return showed that a copy of the original petition was served, not the second amended petition. Id. Accordingly, the court held that, because the only proof that Primate was served with anything at all was a return of service that recited service of a pleading in which it had not been sued, there was error on the face of the record. Id. at 153. Here, in contrast, there was only a single, original petition; Kubovy and his company were correctly named both in the petition and in the citation; and a copy of the original petition was attached to the citation and delivered in person to Kubovy.
Second, neither a description of the petition nor the manner of service needed to be shown in the amended return because they were shown in the original return, which recited that the original petition was delivered in person to Kubovy. There is no requirement that the amended return repeat all of the elements of the original return. Rather, it has long been the law in Texas that the original and amended returns are read as one document. Hill v. Cunningham, 25 Tex. 25, 25 (Tex. 1860); Bavarian Autohaus, Inc. v. Holland, 570 S.W.2d 110, 113 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ); Walker, 828 S.W.2d at 282. Here, the original and amended return, read together, satisfy all of the required elements, including a description of the petition and of the manner of service. There is no error on the face of the record.
Conclusion
We conclude as a matter of law that the trial court had personal jurisdiction over Kubovy. We hold that the trial court did not err in rendering a default judgment against him.
We affirm the judgment.
Evelyn V. Keyes
Justice
Panel consists of Justices Hedges, Nuchia, and Keyes.