Paradise Village, Inc. v. Finova Capital Corporation

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                                    NO. 07-06-0298-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                 OCTOBER 25, 2006
                          ______________________________

                        PARADISE VILLAGE, INC., APPELLANT

                                              V.

                    FINOVA CAPITAL CORPORATION, APPELLEE
                       _________________________________

              FROM THE 341ST DISTRICT COURT OF WEBB COUNTY;

  NO. 2005CVQ001130D3; HONORABLE ELMA TERESA SALINA ENDER, JUDGE
                   _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant Paradise Village, Inc. brings this restricted appeal from a default judgment

entered in favor of appellee Finova Capital Corporation.


       On August 14, 2006, appellant filed its brief on appeal. In its brief, appellant argued,

among other things, that the trial court erred in granting a default judgment against

appellant because the court lacked jurisdiction. Specifically, appellant referred this court

to Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex.App.–San Antonio 2002,

pet. denied) in support of its argument that the judgment of the trial court was void because
the return of citation did not establish that (1) the person served was in fact the

corporation’s agent for service and (2) the corporate defendant was served.


       On September 15, 2006, appellee filed a “motion to reverse default judgment and

remand,” in which appellee noted, “[a]fter review of Appellant’s brief and supporting case

law, Appellant has correctly cited the case law and statutory law as it relates to service of

process and the default judgment. Service of process as obtained by Appellee in the trial

court was, if not void, voidable.” After reviewing the record, we agree the judgment must

be reversed. See Uvalde Country Club v. Martin Linen Supply Company, Inc., 690 S.W.2d

884, 885 (Tex. 1985) (per curiam); Benefit Planners, 81 S.W.3d at 858-59 (and cases cited

therein) (noting 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).


       We reverse the trial court’s judgment and remand the cause to the trial court for

further proceedings. TEX . R. APP . P. 43.2(d). Appellee’s motion to reverse default

judgment and remand is dismissed as moot.




                                                  James T. Campbell
                                                      Justice




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