Case Brief No 1

Citation: Harvestons Securities, Inc. v. Narnia Investments, Ltd., 218 S.W.3d 126 (2007) Plaintiff and Defendant: The plaintiff/appellant is Harvestons Securities, Inc. The defendant/appellee is Narnia Investments, Ltd. Facts: In year 2000, Narnia Investments, Ltd. sued Harvestons Securities, Inc. and several defendants in trial court of Texas. The trial court then granted a default judgment against Harvestons and in favor of Narnia that Harvestons has to pay $365,000, plus attorney’s fees, prejudgment interest, and postjudgment interest. Harvestons claimed that it had no actual knowledge of the pending litigation before November 15, 2004 and filed a timely restricted appeal.

Harvestons contends that the service of process was defective due to the process was delivered to someone different than the one name in the citation, the person to which the process was delivered, JoAnn Kocerek, did not have a authority to accept the process on behalf of Harvestons or the Texas Securities Commissioner and the return of service does not show a valid manner of service.

(b) No, JoAnn Kocerek did not has the authority to accept the process on behalf of the Harvestons Securities or the Texas securities Commissioner. (c) No, the return of service does not show a valid manner of service.

Reasoning: (a) “The district clerk issued citation directed to “Harvestons Securities Inc. by serving the Texas Securities Commissioner[,] 200 E 10th Street[,] 5th Floor Austin[,] Texas 78701.” While “The return of service indicates that the citation was served on September 7, 2000, at “200 E. 10th, Austin, Tx. 78701 in Travis County . . . by delivering to Harvestons Securities, by serving the Texas Securities Commissioner, by delivering to JoAnn Kocerek defendant, in person, a true copy of this Citation together with the accompanying copy(ies) of the Petition attached thereto.” “Though the letter states that the petition names Harvestons as a defendant, the letter does not state that the Commissioner received citation addressed to Harvestons. The documents attached to the certificates in question do not reflect a copy of any enclosure that may have accompanied the letter. Nor do these documents reflect that Harvestons received any letter from the Commissioner.” Therefore the names are not identified. (b) “The face of the record does not identify Jo Ann Kocerek or her status or affiliation, if any, with the Texas Securities Commissioner. Neither the return nor any other portion of the record designates Jo Ann Kocerek as an authorized representative of the Commission or indicates that she has the authority to receive service on behalf of Harvestons or the Commissioner. Indeed, it is simply not possible to determine [**21] from the record who Jo Ann Kocerek is or whether she is an agent authorized to accept service on behalf of either the Commissioner or Harvestons. Without an indication on the face of the record of her capacity or authority, if any, to receive service, the granting of the default judgment was improper.” So JoAnn Kocerek was not authorized to accept the process. (c) Here exist an invalid manner of services because of the reasons above and therefore, “Further, a return of citation does not cease to be prima facie evidence of the facts of service simply because the facts are recited in a form rather than filled in by the process server. It is the responsibility of the party requesting service, not the process server, to see that service is properly accomplished. This responsibility extends to seeing that the service is adequately reflected in the record. If proper service is not affirmatively shown in the record, then error exists on the face of the record and a default judgment cannot stand.”