law-error-on-the-face-of-the-record | restricted appeal |
ERROR ON THE FACE OF THE RECORD (FOR PURPOSES OF
RESTRICTED APPEAL)
Strict compliance with the rules governing service of citation is mandatory if a default
judgment is to withstand an attack on appeal. Primate Constr., 884 S.W.2d at 152. Failure
to comply with these rules constitutes error on the face of the record. Id. at 153 (“Proper
service not being affirmatively shown, there is error on the face of the record, and the court
of appeals erred in holding otherwise.”). Here, although Lejeune served Insurance Co. by
certified mail, the record shows that the return of citation lacks the required notation
showing the hour of receipt of citation. Lejeune’s default judgment, therefore, cannot stand.
Accordingly, without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of
appeals’ judgment and remand the case to the trial court for further proceedings consistent
with this opinion.
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
Ginn v. Forrester, No. 08-0163 (Tex. Mar. 27, 2009)(per curiam)(absence of evidence of notice
insufficient to satisfy requirement of error on face of the record for purpose of restricted appeal)
EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, STEVE BRANTLEY v. JEFF
FORRESTER AND KIM FORRESTER; from Harris County; 14th district (14-06-00549-CV, ___
SW3d ___,
01-10-08)
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 renders judgment.
Per Curiam Opinion