David Gonzales and Ann Gonzales v. City of El Paso

Summary

The Eighth District Court of Appeals of Texas affirmed the denial of David Gonzales and Ann Gonzales’s special appearance in the City of El Paso’s delinquent ad valorem property-tax suit. The court held that the appellants’ objections concerned alleged defects in service of process, which should have been raised by a motion to quash rather than a special appearance, and that the appellants conceded they were Texas residents. The court also concluded that the filing operated as a general appearance and affirmed the trial court’s ruling.

Holdings

1. A curable defect in service of process does not defeat a nonresident defendant's amenability to process and must be raised by a motion to quash rather than by a special appearance. Because the appellants conceded they were Texas residents and challenged only the propriety of service, their special appearance lacked merit.
2. Strict compliance with service rules is required before a default judgment may be entered, but a service defect in a case without a default judgment does not require dismissal or reversal of the denial of a special appearance. The proper relief is additional time to answer through a successful motion to quash.
3. Because the appellants' purported special appearance challenged only defective service, it operated as a general appearance and cured any service defect; the trial court therefore did not err in denying the special appearance or in accepting the amended petition without the relief sought by appellants.

Questions Presented

1. Whether the appellants could obtain relief through a special appearance by asserting that the original citation, petition, and returns of service used a misspelled surname.
2. Whether the trial court erred by accepting the City's amended petition without requiring service of the live pleading on the appellants.
3. Whether a curable defect in service of process defeats personal jurisdiction or instead must be raised by a motion to quash.

Disposition

affirmed