Holly Ridge Healthcare, P.A. and North Whiteville Urgent Care & Family Practice, P.A. v. United Biologics, LLC D/B/A United Allergy Services
04-15-00563-CV
| Tex. App. | Oct 7, 2015Background
- Plaintiff (United Biologics, LLC) sued Holly Ridge United Healthcare, P.A. (a North Carolina corporation) for breach of contract; citation was served on Holly Ridge’s registered agent, James H. Pridgen, M.D., in North Carolina.
- The officer’s return of service described the item served as a “copy of plaintiff’s petition” and did not state the server was over 18 or disinterested.
- Pridgen filed pro se special appearances (one unverified) contesting personal jurisdiction and later filed an "Affidavit in Support of Motion to Set Aside Default Judgment" and "Points and Authorities" after default judgment entered; no formal motion for new trial was filed by the defendant before the default judgment.
- Default judgment was signed July 9, 2015; an attorney-filed answer was not filed until August 12, 2015, and appellant perfected a restricted appeal on August 24, 2015.
- Appellant’s brief argues (1) the post-judgment pro se filings did not function as a motion for new trial, so the restricted-appeal procedure is proper; (2) service was fatally defective under Tex. R. Civ. P. 108 because the return did not show the server was disinterested and over 18; and (3) service was also defective under Tex. R. Civ. P. 107 because the return misdescribed the documents served.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pro se post-judgment filings by defendant constituted a motion for new trial that would extend appeal deadlines | N/A (plaintiff sought default judgment) | Pro se filings (Affidavit and Points & Authorities) were not a motion for new trial because they lacked a prayer for relief and necessary formality | Not in record — appellate brief contends they did not constitute a motion; seeks restricted appeal treatment |
| Whether service was fatally defective under Tex. R. Civ. P. 108 because officer’s return failed to state server was over 18 and disinterested | Service was adequate to support jurisdiction/default judgment | Officer’s return is fatally defective for failing to show server was disinterested and at least 18, so trial court lacked personal jurisdiction | Not in record — appellant argues service was fatally defective and judgment must be reversed |
| Whether service was fatally defective under Tex. R. Civ. P. 107 because the return misdescribed the document served | Service sufficiently described documents; plaintiff issued proper citation | Return described only a "copy of plaintiff’s petition" though the filed document was "Plaintiff’s Original Petition & Request for Disclosure," so return failed to show proper service | Not in record — appellant argues misdescription makes the return defective and precludes default judgment |
Key Cases Cited
- Doctor V. Pardue, 186 S.W.3d 4 (Tex. App. Houston 2005) (substance of motion controls whether it is a motion for new trial)
- Finley v. J.C. Pace Ltd., 4 S.W.3d 319 (Tex. App. Houston 1999) (same principle regarding motion substance)
- Mercer v. Band, 454 S.W.2d 833 (Tex. Civ. App. Houston 1970) (motion for new trial must seek to set aside judgment and request relitigation)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (party requesting service must ensure return accurately reflects service; returns may be amended before judgment)
- Scucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ. App. Fort Worth 1973) (return lacking statement that server was disinterested and over 18 is fatally defective)
- Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411 (Tex. Civ. App. Fort Worth 1962) (same rule on mandatory contents of return for nonresident service)
- Gutierrez v. Cuellar, 236 S.W. 497 (Tex. Civ. App. San Antonio 1922) (strict compliance with citation essentials is required to support default judgment)