Mission Cemetery Company v. Morrell Masonry Supply Inc.

MEMORANDUM OPINION No. 04-11-00355-CV MISSION CEMETERY COMPANY, Appellant v. MORRELL MASONRY SUPPLY, INC., Appellee

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 2010-CI-14559 Honorable Karen H. Pozza, Judge Presiding

Opinion by: Rebecca Simmons, Justice Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: February 1, 2012 REVERSED AND REMANDED

Appellant Mission Cemetery Company had a default judgment taken against it by appellee Morrell Masonry Supply, Inc. for Mission Cemetery’s alleged failure to pay for materials Morrell Masonry provided for Mission Cemetery’s benefit. After it learned of the default judgment, Mission Cemetery filed a restricted appeal. On appeal, Mission Cemetery asserts it was not properly served and the default judgment is void. In response, Morrell Masonry admits that Mission Cemetery was not properly served and states that it does not oppose this court reversing the default judgment and ordering a new trial.

A default judgment rendered against a defendant who “was not served in strict compliance with applicable requirements” is void. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 858 (Tex. App.—San Antonio 2002, pet. denied). Therefore, we reverse the trial court’s judgment and remand this cause for a new trial.

Rebecca Simmons, Justice