11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Interstate Motor Carriers

Appellant

Vs.                   No.  11-01-00405-CV B Appeal from Taylor County

Film Vehicle Services

Appellee

Interstate Motor Carriers (Interstate) is before us on a restricted appeal from a default judgment granted in favor of Film Vehicle Services (FVS).  Because the judgment was rendered without proper service of process, we reverse and remand.

FVS sued Interstate on April 23, 2001, for negligent use of a tractor-trailer rig which resulted in a motor vehicle accident.  Citation was issued by certified mail on April 23, 2001.  FVS=s petition requested service of process by certified mail with return receipt.  The citation was addressed to AInterstate Motor Carriers, 4201 Utica Sellersburg Rd., Jeffersonville, In 47130.@  The return was signed AMary Shoemaker@ and printed as AM. Shoemaker.@  There was no indication of Shoemaker=s capacity.

When the case was called to trial on June 22, 2001, Interstate did not appear and did not file an answer.  FVS then moved for entry of a default judgment.  A default judgment certificate was included in the record which certified the last known address of the company but which did not mention a registered agent for service or any individual=s name.  On June 22, 2001, a final judgment was entered against Interstate.  The judgment recited that all persons and entities entitled to citation were properly cited.  The trial court awarded FVS a judgment of $27,068.

In a single point of error, Interstate contends that the default judgment should be reversed because FVS did not strictly comply with the Texas Rules of Civil Procedure governing service.  We agree.

A restricted appeal is a direct attack.  A default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the Texas Rules of Civil Procedure.  Primate Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).

The Business Corporation Act permits service on the corporation=s president, vice president, and the registered agent.  TEX. BUS. CORP. ACT. ANN. art. 2.11(A) (Vernon 1980).  When serving an agent for a corporation or other entity, the citation must affirmatively show that the individual served is in fact the agent for service.  Pharmakinetics Laboratories, Inc. v. Katz, 717 S.W.2d 704,706 (Tex.App. - San Antonio 1986, no writ).

The green card was signed by AMary Shoemaker,@ but there is neither an indication of Shoemaker=s title or position nor an affirmative showing that she was an authorized individual to receive service for Interstate.  With no affirmative showing that AMary Shoemaker@ was an authorized individual to receive service on behalf of Interstate, we must conclude that service was improper.  We sustain Interstate=s point of error. 

We reverse the default judgment and remand the cause for further proceedings.

W. G. ARNOT, III

CHIEF JUSTICE

August 8, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.