Excel Residential Services, Inc. v. Evie Jackson as Court Appointed Guardian of JG, a Minor
13-20-00342-CV
| Tex. App. | Jul 1, 2021Background
- Evie Jackson, as guardian for JG (a 10‑year‑old), sued for negligence after JG fell from a second‑story apartment balcony; Excel Residential Services was named as property manager/defendant.
- The petition and citation were served by certified mail (postal return receipt / "green card"); Excel did not answer.
- The trial court entered an "Interlocutory Default Judgment" on October 25, 2019, then a severance order on December 6, 2019 transferring certain filings into the severed case (but not the original citation file copy in the severed case file).
- The court later entered a "Final Default Judgment" on January 24, 2020, awarding $60,000 against Excel; Excel filed a restricted appeal on July 20, 2020.
- Jackson later caused a supplemental clerk’s record (including the original citation and return) to be filed in this Court on December 1, 2020; the clerk’s affidavit indicated the citation and return were in the court file at the time of the interlocutory default judgment.
- The supplemental record showed the return of service lacked key information (no service date, no server name, and no signature), raising Rule 107 compliance questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Omission of citation from trial‑court file at time of final judgment | Jackson: citation was in the trial court file when the interlocutory default judgment was rendered; failure to transfer to severed file doesn’t invalidate service | Excel: absence of the citation in the severed case file at the time of the final judgment shows defective record/ service | Court held citation was in the court file when the interlocutory default judgment was entered; failure to transfer to severed file did not invalidate service |
| Deficient return of service under Tex. R. Civ. P. 107 | Jackson: postal receipt and citation/return showed service | Excel: return failed to meet Rule 107 (missing date of service, server's name, and server's signature) | Court held Rule 107 noncompliance (missing required entries and signature) rendered service fatally defective; reversed and remanded |
Key Cases Cited
- Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254 (Tex. 2009) (per curiam) (strict compliance with service rules required to sustain default judgment)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (failure to demonstrate strict compliance renders attempted service invalid)
- Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571 (Tex. 2006) (per curiam) (no presumptions of valid service in restricted appeals)
- Roventini v. Ocular Scis., Inc., 111 S.W.3d 719 (Tex. App.—Houston [1st Dist.] 2003) (face of the record in restricted appeal consists of papers on file when judgment rendered)
- Retail Techs., Inc. v. Palm City T.V., Inc., 791 S.W.2d 345 (Tex. App.—Corpus Christi–Edinburg 1990) (officer's unsigned return is fatally defective and cannot support default judgment)
- Garcia v. Ennis, 554 S.W.3d 209 (Tex. App.—Fort Worth 2018) (confirming that the party requesting service bears responsibility to ensure service is reflected in the record)