Opinion filed December 9 , 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 09

- 00356

- CV

__________ BUSINESS STAFFING, INC. , Appellant

V.

RICARDO GONZALEZ , Appellee

On Appeal from the 70 th District Court

Ector County, Texas

Trial Court Cause No. A

- 127,990

- A

O P I N I O N Appellant, Business Staffing, Inc., appeals from a default judgment in favor of appellee,
Ricardo Gonzalez. In two issues, Business Staffing contends (1) that the trial court lacked jurisdiction to enter the default judgment because the return of service was defective and (2) that
the trial court erred in denying its motion for new trial because it met all the r equirements of the
Craddock 1 test. We reverse and remand.

1 Craddock v. Sunshine Bus Lines , 133 S.W.2d 124 ( Tex. 1939).2

We note that t his case is not a restricted appeal. In restricted appeal s , “ review is limited to errors apparent on the face of the record. ” Fidelity & Guar. Ins. Co. v. Drewery Constr. Co. , 186 S.W.3d 571, 573 (Tex. 2006). By contrast, when a party attacks a default judgment with a motion for new trial
, as Business Staffing did in this case
, or a bill of review in the trial court, the
record is not so limited. In such cases, the parties may in troduce evidence in the trial court “ to explain what happened. ” Id. at 574; Marrot Commc’ns, Inc. v. Town & Country P’ship , 227 S.W.3d 372, 379 (Tex. App.

— Houston [1 st Dist.] 2007, pet

. denied ). Th is evidentiary process allows the parties to address and develop the Craddock or bill of review elements in the trial

court. Marrot , 227 S.W.3d at 379. Strict compliance with the rules governing service of citation is mandatory if a default judgment is to withstand an attack on appeal. Ins. Co. of State of Pa. v. Lejeune , 297 S.W.3d 254, 25 6 (Tex. 2009); Primate Constr., Inc. v. Silver , 884 S.W.2d 151, 152 (Tex. 1994). Virtually any deviation from the rules regarding proper service of process will result in the setting aside of a default judgment. Mansell v. Ins. Co. of the W. , 203 S.W.3d 499, 501 (Tex. App.

— Houston [14 th Dist.] 2006, no pet

. ). “ [ F ] o r a default judgment to be properly rendered, the record must affirmatively show, at the time the default judgment is entered , either an appearance by the def

endant, proper service of citation on the defendant, or a written
memorandum of waiver. ” Marrot , 227 S.W.3d at 378. Otherwise, the trial court does not have in personam jurisdiction to enter a default judgment against the defendant. Id.
The facts in th is case are similar to the facts in Lejeune

. In this case, Gonzalez requested the district clerk to serve Business Staffing by certified mail, return receipt requested. The clerk
issued the citation. However, the clerk failed to note in a return of cita tion or service the day and
hour that she received the citation for service on Business Staffing. Similarly , in Lejeune , the defendant was served by certified mail, but the district clerk failed to note in the return of citation
the hour that the clerk’s office received the citation for service. Lejeune , 297 S.W.3d at 255

- 56.
In Lejeune , the Texas Supreme Court explain ed that Rule 16 of the Texas Rules of Civil Procedure governs service of process in general. Id. at 256; see T EX

. R. C IV

. P. 16. Rule 16 provides that “[e]very officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them.” Rule 105, which governs service of citation, states that “[t]he officer o r authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the3

same without delay.” T EX

. R. C IV

. P. 105. In Lejeune , the court concluded that service of citation did not strictly comply with Rules 16 and 105 because the return of citation lacked the required notation showing the hour that the clerk received the c itation for service. Therefore, the court held that the default judgment against the defendant could not stand. Lejeune , 297 S.W.3d at 256. Likewise, in this case, because the district clerk did not endorse on a return the day and
hour that she received the citation for service, the default judgment against Business Staffing
cannot stand

. Lejeune , 297 S.W.3d at 256; In re Z.J.W. , 185 S.W.3d 905, 90 7

- 0 8 (Tex. App.

— Tyler 2006, no pet.). Gonzalez submitted an affidavit from the district clerk in response to Business Staffing’s
motion for new trial. The affidavit provides further support for the conclusion that service of Business Staffing did not comply with Rules 16 and 105. In the affi davit, the clerk did not dispute the fact that she did not note on a return the day and hour that she received the citation
for service. The clerk stated that the citation “was issued and created by the Ector County District Clerk’s Office on July 22, 200 9” and “was received by the Ector County District Clerk’s
O ffice upon its issuance on July 22, 2009 as reflected o n the Citation.” However, the clerk made
no mention of the hour that the clerk’s office received the citation for service. The record shows that Business Staffing had not been properly served at the time the trial court entered the default judgment. Lejeune , 297 S.W.3d at 256; Marrot , 227 S.W.3d at 379. Business Staffing’s first issue is sustained. Based on our ruling on Business Sta ffing’s first issue, we need not address its second issue. T EX

. R. A PP

. P. 47.1. The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

TERRY McCALL
JUSTICE

December 9 , 2010 Panel consists of: Wright, C.J., McCall, J., and Strange, J.