Hercules Concrete Pumping Service, Inc. v. Bencon Management & General Contracting Corp.

MARGARET GARNER MIRABAL,

Justice, dissenting on denial of rehearing en banc.

Because the record reflects proper service on appellant, I respectfully dissent.1

The Law

When a default judgment is attacked by restricted appeal, it is essential that the record affirmatively show strict compliance with the rules for service of citation in order for the default judgment to survive the attack. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). Strict compliance, however, does not require “obeisance to the minutest detail.” Ortiz v. Avante Villa At Corpus Christi, Inc., 926 S.W.2d 608, 613 (Tex.App.—Corpus Christi 1996, writ denied); Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex.App.—Houston [1st Dist.] 1995, no writ). As long as the record as a whole (including the petition, citation, and return) shows that the citation was served on the defendant in the suit, service of process will not be invalidated. See Regalado v. State, 934 S.W.2d 852, 854 *312(Tex.App.—Corpus Christi 1996, no writ); Ortiz, 926 S.W.2d at 613; Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.).

The Facts

In the present case, the original petition states:

Defendant, Hercules Concrete Pumping Service, Inc., is a Texas Corporation, with its principal place of business in Harris County, Texas, and which may be served with process by serving its registered agent, George W. Brock, at 1330 Genoa, South Houston, Harris County, Texas 77587.

The citation and return, which appear on the same side of one sheet of paper, state, in relevant part, as follows:

CITATION

TO: HERCULES CONCRETE PUMPING SERVICE INC. (TEXAS CORPORATION) BY SERVING ITS REGISTERED AGENT GEORGE W. BROCK 1330 GENOA SOUTH HOUSTON, TX 77587
Attached is a copy of ORIGINAL PETITION .... The instrument attached describes the claim against you.
YOU HAVE BEEN SUED.
RETURN
Received on the 28th day of Oct., 1998, at 9:25 o’clock a.m., and executed the same in Harris County, Texas, on the 29th day of Oct. 1998, at 12:07 o’clock p.m., ... by delivering to George W. Brock, in person of the said Hercules Concrete Pumping a true copy of this notice, together with accompanying copy of original petition.

ANALYSIS

The majority opinion holds that, looking at the return in a vacuum (without considering the citation or the original petition), there is error on the face of the record because “the return does not show the position of George W. Brock,2 nor does it give the complete, correct name of the party being sued.”3 The majority’s holding is directly contrary to the holdings of other courts. See Ortiz, 926 S.W.2d at 612 (holding omission of corporate designation from return of service does not invalidate service when citation and attached petition both fully name defendant with proper designation); Payne, 732 S.W.2d at 41 (concluding when petition and citation both state name and capacity of registered agent, return showing service on that named person is not fatally defective for failure to state capacity as registered agent).

Respectfully, the majority’s reliance on Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex.App.—Houston [1st Dist.] 1999, no pet.) as support for its holding is misplaced because Barker is clearly distinguishable. There, the face of the record created uncertainty about whether the person who was served was the person who was identified in the citation as the registered agent for the corporate defendant. Id. The citation stated the corporation could be served by serving “Registered Agent, James M. Barker, 128 Northwest Ellison”; the return stated ser*313vice was executed on “James Barker at 300 Boone All.” Id. Because the return stated a different address, made no mention of the defendant company, and did not give a middle initial for the person served, the face of the record did not provide reasonable certainty that the person served was the registered agent of the defendant. Id. at 793.

In contrast, the return in the present case specifically states that the citation was served on “George W. Brock, in person of the said Hercules Concrete Pumping.” The record here, as a whole, shows with reasonable certainty that the citation was properly served on defendant Hercules Concrete Pumping Service, Inc. by service on its registered agent, George W. Brock.

Accordingly, I would overrule appellant’s first issue.

. This dissent is filed pursuant to Tex.R.Afp. P. 47.5, as a result of the denial of appellee’s motion for rehearing en banc.

. The majority holds the return itself must state that George W. Brock is the registered agent.

. The majority concludes it is a fatal defect for the return to fail to state the full name of the defendant, Hercules Concrete Pumping Service, Inc.