W. Garry Waldrop DDS, Inc. D/B/A Lifetime Dental Care v. Gregory Pham, John Ma and Raymond DAO ( 2016 )

Reversed and Remanded and Memorandum Opinion filed September 15,
2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00747-CV
W. GARRY WALDROP DDS, INC. D/B/A LIFETIME DENTAL CARE,
Appellant
V.
GREGORY PHAM, JOHN MA, AND RAYMOND DAO, Appellees
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2015-21720
MEMORANDUM OPINION
In this restricted appeal, appellant W. Garry Waldrop DDS, Inc. d/b/a
Lifetime Dental Care (“Lifetime”) seeks reversal of a default judgment in favor of
appellees, Gregory Pham, John Ma, and Raymond Dao. Lifetime contends the trial
court erred in signing the default judgment because: (1) Lifetime was not properly
served with process, (2) the evidence was legally or, alternatively, factually
insufficient to support an award of damages, and (3) the evidence was legally or,
alternatively, factually insufficient to support an award of attorney’s fees. Because
appellees did not properly serve Lifetime with process, we reverse the trial court’s
judgment and remand for further proceedings.
BACKGROUND
Appellees are licensed dentists who each entered into a written contract with
Lifetime to join its dental practice. In April 2015, appellees sued Lifetime for
breach of contract, alleging it failed to pay the full amount of compensation owed
to them under the contract. Lifetime did not answer the petition, and appellees
moved for default judgment. At the default judgment hearing, each appellee
testified to the written employment contract with Lifetime to provide dental
services in exchange for twenty-five percent of production. Each appellee also
testified to Lifetime’s failure to pay the agreed amount from production and
testified to their actual damages caused by Lifetime’s breach. Ned Gill, III,
appellees’ attorney, testified that he incurred $1,600 in attorney’s fees for each
appellee. Lifetime did not appear at the hearing.
The trial court signed a final judgment in favor of appellees. The judgment
awarded each appellee the amount of damages requested at the hearing as well as
pre-judgment interest and $1,600 attorney’s fees. This restricted appeal followed.
ANALYSIS
A restricted appeal is a direct attack on a default judgment. Whitaker v.
Rose, 218 S.W.3d 216, 219 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(citing Tex. R. App. P. 30). To prevail on a restricted appeal, Lifetime must
establish (1) it filed notice of the restricted appeal within six months after the
judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not
participate in the hearing that resulted in the judgment complained of and did not
timely file any post-judgment motions or requests for findings of fact and
conclusions of law, and (4) error is apparent on the face of the record. Alexander
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v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Tex. R. App. P.
26.1(c), 30.
Appellees dispute only the fourth element, arguing that the face of the record
shows no error. When reviewing a restricted appeal, the face of the record consists
of all of the papers on file, including the clerk’s record and reporter’s record, at the
time that the default judgment was signed. Alexander, 134 S.W.3d at 848–49; In
re K.M., 401 S.W.3d 864, 866 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Extrinsic evidence may not be considered. Alexander, 134 S.W.3d at 848.
I. Appellees’ return of service was not proper.
In its first and second issues, Lifetime argues that it was not served with
citation in strict compliance with the Texas Rules of Civil Procedure, and that this
error is shown on the face of the record.1 When process is not validly served, the
trial court acquires no personal jurisdiction over the defendant and any default
judgment is void. Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex. App.—Dallas
2008, no pet.). In reviewing a default judgment on restricted appeal, we do not
presume the citation was validly issued, served, or returned. See Primate Constr.,
Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam). Strict compliance
with the rules governing service of citation is mandatory, and failure to comply
constitutes error on the face of the record. Ins. Co. of State of Pennsylvania v.
Lejeune, 297 S.W.3d 254, 256 (Tex. 2009) (per curiam); Primate Constr., 884
S.W.2d at 152 (“Proper service not being affirmatively shown, there is error on the
face of the record, and the court of appeals erred in holding otherwise.”). The
supreme court’s insistence on strict compliance with service requirements in the
default context is well established and is intended to safeguard due process,
1
Lifetime argues in its first issue that it is entitled to a restricted appeal because there is error on
the face of the record. Separately addressing this issue is not necessary because we sustain
Lifetime’s second issue based on an error on the face of the record.
3
allowing the defendant an opportunity to appear and defend the action on the
merits. See Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per
curiam); Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666,
675–76 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
The petition alleges that defendant “W. GARRY WALDROP, DDS, INC.
d/b/a LIFETIME DENTAL CARE” may be served with process by serving its
registered agent, “W. Garry Waldrop.” The citation is addressed to defendant
Lifetime using essentially the same full name quoted above. The return portion of
the citation, however, shows that the petition and citation were delivered to “W.
Garry Waldrop DDS (D/B/A Lifetime Dental Care) defendant, in person.”
Lifetime contends that there are two primary defects in the return that are apparent
on the face of the record.2 We address each alleged defect in turn.
A. Omission of corporate designation in the return
First, Lifetime argues that the name listed in the return creates confusion
regarding whether service was attempted on the corporate entity, which was doing
business as Lifetime Dental Care, or on W. Garry Waldrop, the individual.
According to Lifetime, the name listed in the return creates a “fatal discrepancy”
between the corporate defendant to whom the citation was issued (W. Garry
Waldrop, DDS, Inc.) and the name of the purported “defendant” identified in the
2
Lifetime points to a third alleged defect in service: the lack of statement in the citation or return
that the process server was a disinterested party. Such a statement is only required when serving
process on a non-resident defendant. Tex. R. Civ. P. 108. The cases upon which Lifetime relies
concern non-resident defendants. See, e.g., Chesney v. Buddrus, No. 01-87-00925-CV, 1988 WL
34838, at *1 (Tex. App.—Houston [1st Dist.] Apr. 14, 1988, no writ); Upham v. Boaz Well Serv.,
Inc., 357 S.W.2d 411, 418 (Tex. Civ. App.—Fort Worth 1962, no writ); Scucchi v. Woodruff,
503 S.W.2d 356, 358–59 (Tex. Civ. App.—Fort Worth 1973, no writ); Indus. Models, Inc. v.
SNF, Inc., No. 02-13-00281-CV, 2014 WL 3696104, at *6 (Tex. App.—Fort Worth July 24,
2014, no pet.). Because Lifetime was a resident defendant, Rule 108 does not apply and the
statement was not required. See Tex. R. Civ. P. 106, 107 (providing rules governing method of
service and return of service on resident defendants).
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return (W. Garry Waldrop, DDS).
Rule 107 provides that the officer or authorized person executing the citation
must complete a return of service. See Tex. R. Civ. P. 107(a). The return must
include “the person or entity served.” Tex. R. Civ. P. 107(b)(5). Under the strict-
compliance standard, the name of the defendant listed in the return of service must
essentially match the name of the defendant listed in the citation or petition. See
Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting
Corp., 62 S.W.3d 308, 310–11 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
A minor change in the name, however, does not render the return defective. Myan
Mgmt. Grp., L.L.C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 753
(Tex. App.—Dallas 2009, no pet.). The name of the defendant is altered if it is
changed to the extent that the court cannot determine whether the person or entity
named in the citation is the same as the person or entity identified in the return.
Id.; see Hercules, 62 S.W.3d at 309–11 (concluding return that named “Hercules
Concrete Pumping” rather than “Hercules Concrete Pumping Services, Inc.” was
defective). Conversely, a name is not altered when the name in the citation varies
only slightly from the name in the return. See Myan Mgmt. Grp., 292 S.W.3d at
753 (observing that courts have held omitting the corporate designation “Inc.” is a
minor change that does not invalidate service.); see also Ortiz v. Avante Villa at
Corpus Christi, Inc., 926 S.W.2d 608, 613 (Tex. App.—Corpus Christi 1996, writ
denied) (holding that omission of corporate designation “Inc.” from return did not
invalidate service).
Here, apart from punctuation and capitalization, the only difference between
the names in the citation and the return is that the return omits the corporate
designation “Inc.”, stating that the citation was delivered to “W Garry Waldrop
DDS (D/B/A/ Lifetime Dental Care).” As our sister courts have held, this
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omission of “Inc.” is no more than a slight variation and does not, by itself,
invalidate service. Myan Mgmt. Grp., 292 S.W.3d at 753; Ortiz, 926 S.W.2d at
613.
B. Proof of service on an authorized agent of the corporation
Second, Lifetime contends the return of service fails to show that the citation
and petition were served on Lifetime’s registered agent or an authorized individual,
such as the corporation’s president or vice president. Lifetime argues that the
name listed in the return—“W. Garry Waldrop, DDS (d/b/a Lifetime Dental
Care)”—is insufficient to comply with the rules of service because it does not
clearly show the individual who received service and his or her authority to do so.
A domestic corporation authorized to transact business in Texas is not a
person capable of accepting process; it must be served through its president, vice
president, or registered agent. See Tex. Bus. Orgs. Code §§5.201(b), 5.255(1)
(West 2012); Paramount Credit, Inc. v. Montgomery, 420 S.W.3d 226, 230 (Tex.
App.—Houston [1st Dist.] 2013, no pet.). The record must show whether the
person served was in fact such an agent for the corporation. Compare Nat’l Med.
Enterprises of Texas, Inc. v. Wedman, 676 S.W.2d 712, 715 (Tex. App.—El Paso
1984, no writ) (holding service was proper when return indicated process was
served on “C.T. Corporation System by delivering to its registered agent for
service Mary Lou Boring.”), with Reed Elsevier, Inc. v. Carrollton-Farmers
Branch Indep. Sch. Dist., 180 S.W.3d 903, 905 (Tex. App.—Dallas 2005, pet.
denied) (holding service was improper when return did not indicate the capacity of
“Danielle Smith” or reflect her authority to receive service), and All Commercial
Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 727 (Tex. App.—Fort Worth 2003,
no pet.) (concluding that although return included name of corporation, service was
improper because return failed to specifically state the person served on behalf of
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corporation).3
Appellees argue that Rule 107 does not require the return of service to name
the registered agent, and therefore providing the name of the corporation is
sufficient to establish compliance with the rules. We disagree because this
argument is inconsistent with the above requirement to show service on a person
who is a corporate agent, as well as with the weight given to the recitations in the
return as proof of service. Primate Const., 884 S.W.2d at 152 (“The return of
service is not a trivial, formulaic document. It has long been considered prima
facia evidence of the facts therein.”).
Here, the corporate name provided in the return does not provide prima facie
evidence of what person was served, much less whether that person was authorized
to receive service as an agent of the corporation. We cannot speculate or presume
that the person served was W. Garry Waldrop or another authorized individual.
See Hurd v. D.E. Goldsmith Chem. Metal Corp., 600 S.W.2d 345, 346 (Tex.
App.—Houston [1st Dist.] 1980, no writ) (“[A]ll of the necessary facts must be
stated in the return, with nothing left to inference.”). “W. Garry Waldrop, DDS
(d/b/a Lifetime Dental Care)” could show service on a receptionist, janitor, or other
employee of Lifetime Dental Care rather than the necessary service on the
registered agent, W. Garry Waldrop. See Alamo Home Fin., Inc. v. Duran, No. 13-
14-00462-CV, 2015 WL 4381091, at *4 (Tex. App.—Corpus Christi July 16,
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It is the responsibility of the party requesting service, not the process server, to see that service
is properly accomplished. Primate Const., 884 S.W.2d at 153 (citing Tex. R. Civ. P. 99(a)).
This responsibility extends to seeing that service is properly reflected in the record. Id. The
plaintiff’s burden to comply strictly with the service rules in the default context is tempered by
its ability to amend the return of service. See Tex. R. Civ. P. 118; see, e.g., Bavarian Autohaus,
Inc. v. Holland, 570 S.W.2d 110, 113 (Tex. App.—Houston [1st Dist.] 1978, no writ) (affirming
trial court’s grant of party’s request to amend and re-file return to reflect service on corporation
by delivering to vice president). If the facts as recited in the return do not show proper service,
the party requesting service must amend the return prior to judgment. Primate Const., 884
S.W.2d at 153.
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2015, no pet.) (mem. op.) (holding return of service deficient when return showed
service upon Alamo Home Finance but did not indicate that Alamo was served
through its registered agent); All Commercial Floors, 97 S.W.3d at 727.
Additionally, because the return does not show on its face that the person who
received service was authorized to do so, we conclude that service was not proper.
See Reed Elsevier, 180 S.W.3d at 905; Barker CATV Constr., Inc. v. Ampro, Inc.,
989 S.W.2d 789, 793 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding
return of service was deficient where it failed to state it was delivered to
corporation “through its registered agent” James M. Barker).
We sustain Lifetime’s first and second issues. Because the remedy for
improper service is reversal of the entire judgment, we need not address Lifetime’s
remaining issues, which (if successful) would provide the lesser relief of a new
trial on damages only.4 See Tex. R. App. P. 47.1.
CONCLUSION
Because appellees failed to comply strictly with the rules governing service
of process, the trial court did not acquire jurisdiction over Lifetime. We therefore
reverse the trial court’s judgment and remand the case to the trial court for further
proceedings.
/s/ J. Brett Busby
Justice
Panel consists of Justices Busby, Donovan, and Wise.
4
“[W]hen an appellate court sustains a no-evidence point after an uncontested hearing on
unliquidated damages following a no-answer default judgment, the appropriate disposition is a
remand for a new trial on the issue of unliquidated damages.” Holt Atherton Indus., Inc. v.
Heine, 835 S.W.2d 80, 86 (Tex. 1992).
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