law default judgments | void judgment | void order | improper service of process | sufficiency of service of citation
| due diligence | restricted appeals | bill of review suit | restricted appeal |
Recent Default Judgment Appeals and Related Cases
from the Texas Supreme Court
Insurance Company of the State of Pennsylvania v. Lejeune, No. 08-0829 (Tex. Oct. 30, 2009)(per curiam)
(restricted appeal of default judgment, error on the face of the record, time of service not noted on return of
citation)
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. EDWARD LEJEUNE; from Red River County; 6th
district (06-07-00142-CV, 261 SW3d 852, 08-20-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion [pdf]
View Electronic Briefs
CONSEQUENCES OF FAILING TO PROVE DAMAGES IN THE DEFAULT JUDGMENT CONTEXT:
Bennett v McDaniel, No. 08-0618 (Tex. 2009)(failure to prove damages in post-answer default hearing requires
remand to the trial court, rather than reversal and rendition of take-nothing judgment).
BENNY BENNETT AND WIFE, MARY BENNETT v. RICHARD MCDANIEL, INDIVIDUALLY AND D/B/A RICHARD
MCDANIEL, INC., D/B/A B.R. ROOFING, A/K/A B&R ROOFING; from Wheeler County; 7th district (07-06-00250-
CV, ___ SW3d ___, 04-30-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals’ judgment and remands the case to the trial court.
Per Curiam Opinion
DEFAULT JUDGMENT IMPROPER WHERE COUNSEL'S NO-SHOW FOR TRIAL WAS EXCUSABLE DUE TO
CONFLICTING ENGAGEMENT IN ANOTHER COURT
Dolgencorp of Texas, Inc. v. Lerma, No. 08-0032 (Tex. Jul. 3, 2009)(per curiam) (motion for new trial after post-
answer default judgment due to defense counsel's scheduling conflict should have been granted under
Craddock test criteria) (DEFAULT JUDGMENTS: failure to appear for trial)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY,
ET AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584,
08-23-07 Opinion by the Thirteenth Court of Appeals below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion
But the effect of default on a plaintiff’s claim for unliquidated damages is clear: once a default judgment is taken,
all factual allegations contained in the petition, except the amount of damages, are deemed admitted. See Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)
In the Interest of EA, No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson)
(method of service of amended petition, sufficiency of service by certified mail under rule 21a when Defendant
has been served with civil process, but has not filed an answer or made appearance)(SAPCR modification
proceeding brought within one year of final order in underlying child custody suit).
IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-CV, ___
SW3d ___, 12-06-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Medina,
Justice Green, and Justice Johnson joined.
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice Willett joined.
(default judgment not to be based on amended petition seeking more onerous relief against nonanswering
defendant if not served with new citation)
Sells v. Drott, No. 07-0848 (Tex. July 11, 2008)(per curiam) (default judgment set aside)
Koa Holdings, LP v. Young, No. 07-0197 (June 13, Tex. 2008) (Hecht)
(default judgment, restricted appeal, partnership law, partner vs. partnership as defendant, effect of failure to
name and serve defendant in individual capacity, individual liability of partner vs. liability of partnership)
KAO HOLDINGS, L.P., D/B/A SEBRING APARTMENTS AND WILLIAM KAO v. ANNIE LEE YOUNG; from Harris
County; 14th district (14-05-00398-CV, 214 SW3d 504, 11-21-06)
motion to take judicial notice denied
Levine v. Shackelford, No. 06-0553 (Tex. Jan. 11, 2008)(per curiam)
(default judgment, motion to set aside, standard, motion for new trial, Craddock test)
Proulx v. Wells, No. 06-0258 (Tex. Aug 31, 2007)(per curiam)(service of citation, due diligence)
In Re Discount Rental, Inc., No. 05-0249 (Tex. Mar. 2, 2007)(per curiam) (void judgment, defective service, lack
of authority to order sale, enforcement of judgment)
Hubicki v. Festina A. Lichtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default
judgment, insufficient service of process)
Wachovia Bank v. Gilliam, No. 05-0903 (Tex. Feb. 9, 2007)(per curiam)
(restricted appeal, default judgment, insufficient service of corporate citation)
Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571(Tex. 2006).
Fidelity and Guaranty Ins. Co. v. Drewery Construction Co., No. 05-0295 (Tex. Feb. 24,
2006)(per curiam opinion) (default judgment, service of process)
COURTS OF APPEALS CASES (pet. denied)
08-0323
MALRIE VENSON ELLIS v. MANDA KAY ELLIS; from Tyler County; 13th district (13-07-00034-CV, ___ SW3d
___, 02-07-08) (divorce default judgment, motion for new trial denied)
07-0738
KATIN CORP. v. BEA LOESCH; from Travis County; 3rd district (03-05-00412-CV, ___ SW3d ___, 08-10-07,
pet. denied Jan 2008)
Default judgment against corporate defendant whose registered agent refused service of citation affirmed
07-0870
KATHERINE WEEKS v. AFFILIATED COMPUTER SERVICES, INC.; from Dallas County; 5th district
(05-06-00996-CV, ___ SW3d ___, 08-10-07, pet. denied Jan 2008) (no-answer default judgment reversed,
service through Secretary of State not proper)
Affiiated Computer Services, Inc. appeals the no-answer default judgment rendered against ACS in a lawsuit
filed by Katherine Weeks. In three issues, ASC contends the trial court lacked jurisdiction because it was not
properly served, or in the alternative, the default judgment should be set aside under Craddock v. Sunshine Bus
Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). We sustain ACS's first issue and reverse the trial court's
judgment.
In its first issue, ACS contends the trial court's jurisdiction was not validly invoked because it was never served
with process. In particular, ACS argues the petition was sent to the registered agent for the “terminated” ACS
and was returned to Weeks. ACS further contends Weeks did not serve its current registered agent and ACS
did not receive notice of the lawsuit before the default judgment was entered. After reviewing the record, we
agree with ACS.
On direct appeal from a default judgment, the record must affirmatively show that the trial court had personal
jurisdiction over the defendant. See Infra-Pak (Dallas), Inc. v. Narmour, 852 S.W.2d 565, 566 (Tex. App.-Dallas
1992, no pet.). There are two essential elements of personal jurisdiction. First, the defendant must be amenable
to the court's jurisdiction and, second, the plaintiff must validly invoke that jurisdiction by valid service of process
on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). When, as here, the
default judgment is attacked on improper service grounds, the record must show strict compliance with the rules
relating to proper service. Allodial Ltd. Partnership v. Susan Barilich, P.C., 184 S.W.3d 405, 408 (Tex. App.-
Dallas 2006, no pet.); 14850 Quorum Associates, Ltd. v. Moore Bus. Forms, Inc., 7 S.W.3d 166, 168 (Tex. App.-
Dallas 1998, no pet.). Service may be made on a foreign corporation through its president, any vice presidents,
or a registered agent of the corporation. Tex. Bus. Corp. Act ann. art. 8.10 (Vernon Supp. 2006). Thus, in this
case, due process requires a showing that CT Corporation System was a proper party to receive service for
ACS. See Infra-Pak, 852 S.W.2d at 566; NBS Southern, Inc. v. Mail Box, Inc., 772 S.W.2d 470, 471 (Tex. App.-
Dallas 1989, writ denied).
The record shows that CT Corporation System was listed with the Secretary of State as the registered agent for
ACS. However, the status of the corporation on that listing is shown as “terminated.” The Secretary of State's
records also contains a listing for ACS with an “active” status. That listing shows Corporation Service Company
as the registered agent for ACS. Under these circumstances, we cannot conclude the record in this case shows
CT Corporation System was a proper party to receive service for ACS. We sustain ACS's first issue.
Accordingly, we reverse the trial court's judgment and remand for further proceedings.
PETER H. EGGERT v. LEE ROY GAITAN; from Erath County; 11th district (11-06-00117-CV, ___ SW3d ___, 09-
06-07, pet. denied Jan 2008) This is an appeal from the trial court's order setting aside a default judgment in
favor of Peter H. Eggert and granting Lee Roy Gaitan's motion for new trial. We affirm.
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