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Opinion filed November 30, 2006
In The
Eleventh Court of Appeals
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No. 11-05-00340-CV
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DOLGENCORP OF TEXAS, INCORORATED,
A CERTIFIED SELF-INSURED, Appellant
V.
DARLENE SEWELL, Appellee
On Appeal from the County Court at Law
Ector County, Texas
Trial Court Cause No. CC-17103
M E M O R A N D U M O P I N I O N
This is a default judgment case where a final judgment was entered against a defendant who was never served with a citation. We reverse and remand.
Darlene Sewell (claimant) sued Dolgencorp of Texas, Incorporated, a certified self-insured, (carrier) seeking, by judicial review, to set aside an adverse ruling by the Texas Workers= Compensation Commission Appeals Panel.
The trial court entered a default judgment setting aside the decision of the Texas Workers= Compensation Commission Appeals Panel and awarded claimant certain disability benefits. Carrier timely filed a restricted appeal. Claimant has elected not to file a brief in this court.
The first citation that was issued by the district clerk was returned unserved by the deputy sheriff with the notation it was not executed due to Abad address . . . per plaintiff atty.@ Claimant=s attorney then requested that a second citation be reissued and served upon carrier by serving AFrank Gates Service Company@ at a specific address in Dallas County. On August 4, 2004, R.L. Skinner, Dallas County Precinct 4 Constable, was unable to serve the citation and noted under the AAttempted Service - Diligence@ section AP/A N/A ON FRONT - C.T. CORP. NOW R/A.@ The second citation was then changed by delineating Frank Gates Service Company and inserting AC.T. Corp.@ as registered agent. On August 6, 2004, the amended second citation was placed with Rick Richardson, Dallas County Precinct 3 Constable. Service was attempted upon C.T. Corporation but failed because as noted on the return: AC.T. CORPORATION IS NOT REGISTERED AGENT FOR THIS COMPANY OR CORPORATION.@ The unexecuted amended second citation return was filed with the district clerk on August 23, 2004. No further service of citation was requested or service accomplished. Nevertheless, the district clerk=s office notified claimant=s attorney on August 25, 2004, that service had been effected on carrier by service of citation on A8-4-04.@ This was a mistake.
The record clearly shows that the trial court did not have jurisdiction to enter the default judgment. Tex. R. Civ. P. 107; Primate Constr. v. Silver, 884 S.W.2d 151 (Tex. 1994).
The judgment of the trial court is reversed, and the cause is remanded to the trial court for further proceedings.
PER CURIAM
November 30, 2006
Panel consists of: Wright, C.J.,
Strange, J., and McCloud, S.J.[1]
[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.