Goodman, Kimberly v. Oakley, Tammy

Affirmed and Memorandum Opinion filed February 13, 2003 Affirmed and Memorandum Opinion filed February 13, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-01-01004-CV ____________ KIMBERLY GOODMAN, Appellant V. TAMMY OAKLEY, Appellee _____________________________________________________________ On Appeal from the County Civil Court at Law Number Three Harris County, Texas Trial Court Cause No. 745,172 _____________________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Kimberly Goodman challenges a default judgment rendered against her and in favor of appellee Tammy Oakley. Goodman contends the trial court erred in granting a default judgment because of conflicting dates relating to service of process. We affirm. I. Factual and Procedural Background Tammy Oakley filed suit against Kimberly Goodman on December 14, 2000. The county clerk issued the original-petition citation on December 19, 2000. In her sole issue on appeal, Goodman argues the citation is fatally defective because the return of service includes impossible dates. The deputy who served the citation wrote on the preprinted officer’s return that the citation “came to hand on Dec 21, 2001,” and that she served it on “01-04-2001” (emphasis added). If read literally, this would mean the deputy served Goodman with the citation approximately eleven months before the deputy received the citation. The copy of the citation attached to the return of service contains the notation that service was unsuccessfully attempted “12-28-00” and accomplished “1-4-00,” which would mean the deputy served Goodman before Oakley filed her petition (emphasis added). The trial court entered a default judgment against Goodman on June 6, 2001. II. Issue Presented Goodman now challenges the judgment, claiming the erroneous dates on the return rendered service defective, thus invalidating the default judgment. We review a restricted appeal from a default judgment to determine whether there is error on the face of the record that would vitiate the trial court’s jurisdiction to render judgment. See Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985). III. Analysis and Discussion Texas Rule of Civil Procedure 107 governs return of service and provides a return shall be endorsed on or attached to the citation, shall state when the citation was served and the manner of service, and shall bear the executing officer’s signature. Tex. R. Civ. P. 107. A return of service should be given a fair, reasonable, and natural construction to give effect to its plain intent and meaning. Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 673 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Unlike the cases Goodman cites, in this case the date of service is not impossible to determine from the return. See id. at 672. Although the serving officer’s clerical error, standing alone, might create some ambiguity on first reading the citation, the date of service is plainly discernable when the citation is viewed as a whole. See id. at 673. The file stamps show that the Harris County Constable’s Office for Precinct Four received the citation “Dec 21 10 41 AM ’00” and that the return of service was filed with the trial court “2001 JAN-9.” The return of service states that the constable served citation on January 4, 2001, after receiving it on December 21, 2001. In view of these dates, the only reasonable interpretation is that the deputy served the citation on January 4, 2001, but mistakenly wrote “Dec 21, 2001,” rather than “December 21, 2000,” as the date she received the citation. The deputy’s clerical error does not render process fatally defective because the date of service is discernable and the record otherwise shows compliance with the Texas Rules of Civil Procedure. See id.; see also Pratt v. Moore, 746 S.W.2d 486, 488 (Tex. App.—Dallas 1988, no writ) (holding when citation was issued on October 19, 1986, and return showed it was served on November 11, 1986, and filed with the court on November 14, 1986, return was not fatally defective for officer’s erroneous typographical endorsement that citation came to hand November 30, 1986, as this was clearly error that should have read “October”). Appellant has urged this court to reverse the default judgment under Primate Construction, Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994). We decline this invitation because Primate is not on point. In Primate, the return of service showed service of a petition in which the defendant was not named as a party to the suit. Id. at 153. The Texas Supreme Court reversed the default judgment because the record did not show proper service. Id. By contrast, in this case the return shows proper service on January 4, 2001. Accordingly, we overrule Goodman’s sole issue and affirm the trial court’s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed February 13, 2003. Panel consists of Justices Yates, Hudson, and Frost.