J.D. Auto Corp., Appellant v. Michael H. Bell, Appellee (2026)

DISSENTING OPINION

To prevail on its traditional motion for summary judgment, Appellant JD Auto Corp. had to “conclusively prove” each element of its statute-of-limitations affirmative defense, i.e., (1) when Appellee Michael H. Bell's cause of action accrued, and (2) that Bell brought suit later than the applicable number of years later. Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021).

The only “evidence” JD Auto offered to conclusively prove the second element—that Bell brought suit outside the limitations period—is our prior opinion in JD Auto Corp. v. Bell, 697 S.W.3d 441 (Tex. App.—El Paso 2024, no pet.) (“JD Auto I”), reviewing whether JD Auto was entitled to summary judgment vacating the earlier default judgment against it.¹ However, rather than conclusively proving that Bell's suit was brought outside of limitations, JD Auto I expressly acknowledges the existence of some evidence that service was accomplished by posting at JD Auto's place of business within the limitations period. See 697 S.W.3d at 447, 458, 462 n.3. Crucially, in JD Auto I, the extrinsic evidence rule and Texas Rule of Civil Procedure 107(h) prevented us from considering that evidence in the context of a collateral attack on a default judgment. See id. at 458 and 462 n.3. However, neither of these rules apply to similarly restrict our review in this appeal of a traditional summary judgment on limitations after the parties were returned to their original positions following reversal of the default judgment. As a result, if anything, JD Auto I itself raises a fact issue as to whether JD Auto was timely served. See id. at 447 (citing evidence that “besides having posted the citation and petition inside a locked glass case on the first floor of the El Paso County Courthouse ․, [the process server] had also posted the documents ‘on the front, main doors to the front of [JD Auto's] show room building at 5800 Montana Avenue[.]’ ”); see also Green v. State, No. 02-21-00013-CV, 2023 WL 5617341, at *1 (Tex. App.—Fort Worth Aug. 31, 2023, no pet.) (mem. op.) (“The movant's own summary judgment evidence can create an issue of fact.”).

As explained below, my view departs from that of the majority opinion in relation to how it analyzes JD Auto I and the law-of-the-case doctrine, as well as with respect to whether we should assess the credibility of Bell's process server.

A. JD Auto I acknowledges the existence of evidence that JD Auto was served by posting at its business, and did not hold that no form of service was effected

To satisfy limitations, a plaintiff must both file a petition and serve it on the defendant. Tex. State Univ. v. Tanner, 689 S.W.3d 292, 300 (Tex. 2024) ([T]o ‘bring suit’ is a term of art reflecting the traditional requirements to satisfy a statute of limitations: filing the petition and achieving service of process. Timeliness for just one will not do The suit is not ‘brought,’ and the statute of limitations is not satisfied, until the plaintiff achieves both steps.”).

Here, while it is undisputed that Bell filed suit before limitations expired, JD Auto contends that “the record establishes that JD Auto was not served with process.” In support, JD Auto cites JD Auto I, arguing that in it, we “determined that Bell failed to obtain service on JD Auto, thus depriving [us] of jurisdiction.” However, our determination in this regard was a qualified one. Rather than determining that Bell categorically “failed to obtain service on JD Auto,” we focused solely on one service method—posting at the courthouse—and concluded that this particular method alone did not pass constitutional muster:

[B]ecause the record before the [trial] court on the request for substitute service was completely devoid of evidence that posting at the courthouse was reasonably calculated to give JD Auto notice of the suit, [this method of service] fail[ed] to meet due process requirements. See In re Miramontes, 648 S.W.3d [590,] 601 [(Tex. App. El Paso 2022, no pet.)] (“[I]f notice is not meaningful, constitutional due process requirements are not satisfied.”).

JD Auto I, 697 S.W.3d at 458.

In contrast, we did not address, much less determine, whether Bell may have successfully served JD Auto by a different method, namely posting at JD Auto's place of business. As the majority opinion in JD Auto I noted, service by posting at JD Auto's business was averred to have occurred in a 2021 affidavit by the process server included in the bill-of-review record, but this affidavit could not be considered in reviewing a collateral attack on a default judgment:

Bell ․ urges us to consider the process server's 2021 affidavit filed in the bill of review action. He claims the 2021 affidavit establishes the citation was also posted at JD Auto's business address, and thus, [JD Auto] received notice. This evidence, however, falls outside the permissible scope of our default judgment record. In a direct-attack bill of review, parties may introduce affidavits, depositions, testimony, and exhibits to explain what happened in the underlying suit, including an amended proof of service. However, upon a collateral attack for voidness, our review is more tightly limited to the record before the trial court at the time it rendered the challenged judgment.

Id. (quotation marks and citations omitted).²

In my JD Auto I concurrence, I similarly noted that evidence of posting at JD Auto's business existed but could not be considered in reviewing JD Auto's collateral attack on the default judgment:

Bell ․ urge[s] us to interpret “consideration of all the circumstances” in the “reasonably calculated” test to include extrinsic evidence presented at the bill-of-review proceeding, which Bell indicates included ․ “Bell's posting of notice at JD Auto headquarters in addition to the courthouse posting.” But we do not consider extrinsic evidence in the collateral attack, aside from exceptions involving public records not applicable here.

Id. at 462 n.3 (citation omitted).

In addition, of critical significance in the default judgment context, posting at JD Auto's business was not documented in a return or amended return of service, i.d., as required by Texas Rule of Civil Procedure 107(h) to support a default judgment. See Tex. R. Civ. P. 107(h) (“No default judgment shall be granted in any cause until proof of service as provided by this rule ․ or as ordered by the court in the event citation is executed by an alternative method under Rule 106, shall have been on file with the clerk of the court ten days[.]”); see also id. 107(b)(8) (requiring return to describe “the manner of delivery of service”).

Accordingly, because posting solely at the courthouse was constitutionally infirm, and evidence of posting at JD Auto's business was required to be disregarded under the extrinsic evidence rule and Rule 107(h), the limited record considered in JD Auto I conclusively established that JD Auto was entitled to summary judgment vacating the earlier default judgment. 697 S.W.3d at 459, 461.

Here, because the vacated default judgment is no longer in play, neither is the extrinsic evidence rule or Rule 107(h). See Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 192 (Tex. 2022) (extrinsic evidence cannot be considered in a collateral attack on a default judgment); Tex. R. Civ. P. 107(h) (“No default judgment shall be granted in any cause until ․”) (emphasis added). As a result, JD Auto I's holding that the default judgment record “established [that JD Auto] was never personally served with process,” 697 S.W.3d at 459, is of no import here. That is, in this appeal from a summary judgment on limitations, we are no longer constrained to consider only the default judgment record. Absent that constraint, JD Auto I's express acknowledgement of the existence of evidence that timely service was effected by posting at JD Auto's place of business, see id. at 447, 458, 462 n.3, now looms large. Simply put, having acknowledged that service may have been effected in this manner, JD Auto I cannot serve as conclusive proof that no service was effected.

Because JD Auto I is the only evidence JD Auto offered to conclusively prove the second element of its limitations defense—that Bell brought suit outside the limitations period—JD Auto did not meet its initial traditional summary judgment burden with respect to this element. See Wal-Mart Stores, Inc. v. Xerox State & Local Sols., Inc., 663 S.W.3d 569, 583 (Tex. 2023) (“When a defendant moves for traditional summary judgment ․ it must demonstrate that ‘there is no genuine issue as to any material fact’ and that it is ‘entitled to judgment as a matter of law.’ ”); see also Green, 2023 WL 5617341, at *1 (“The movant's own summary judgment evidence can create an issue of fact.”). The burden never shifted to Bell. Wal-Mart Stores, Inc., 663 S.W.3d 569 at 583 (“[T]he nonmovant has no burden unless the movant conclusively establishes its cause of action or defense.”) (citing Tex. R. Civ. P. 166a(c)).³ Accordingly, I would affirm the trial court's denial of JD Auto's motion for summary judgment.

B. The law-of-the-case doctrine does not apply

The majority relies on the law-of-the case doctrine ⁴ to “decline to reconsider our prior determination that JD Auto was not properly served.” However, this doctrine “does not necessarily apply when either the issues or the facts presented at successive appeals are not substantially the same as those involved on the first trial.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Further, the doctrine may not apply when two different review standards are involved. City of Fort Worth v. Burke, 700 S.W.3d 819, 830 (Tex. App.—Dallas 2023, pet. denied).

In the majority's view, the law-of-the-case doctrine applies here because the prior and present appeals both involve “the ordinary summary judgment standard” and “the same record”:

Applying the ordinary summary-judgment standard [in the prior appeal], we determined there was a complete absence of service for purposes of a collateral attack [on the default judgment] [i.e., for purposes of personal jurisdiction]. We see no reason why the same record would not likewise establish the absence of proper service [here] for purposes of limitations.

While both appeals do stem from summary judgments, only in the present appeal does an unencumbered “ordinary summary judgment standard [of review]” apply. In the prior appeal, the issue was whether posting at the courthouse alone was constitutionally sufficient to support a no-answer default judgment against JD Auto and thus our review was encumbered by the extrinsic evidence rule and Rule 107(h). JD Auto I, 697 S.W.3d at 458. In contrast, the present appeal addresses the issue of whether JD Auto was timely served before limitations expired in relation to an order denying summary judgment on the merits of a limitations affirmative defense. In this context, our review is unencumbered by the no-extrinsic-evidence rule. Compare Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 190 (Tex. 2022) (“As a general rule, extrinsic evidence cannot be considered in a collateral attack to set aside a final judgment[.]”) and Tex. R. Civ. P. 166a (general summary judgment practice includes no extrinsic evidence rule). Nor does Texas Rule of Civil Procedure 107(h) apply to encumber the review presently before us, since no default judgment is in play. See Tex. R. Civ. P. 107(h) (“[n]o default judgment shall be granted in any cause until proof of service as provided by,” as relevant here, Rule 107 for return of service, “shall have been on file with the clerk of the court” for a specified period of time).⁵ As explained above, because these constraints apply only to review of an attack on a default judgment, and the default judgment against JD Auto has already been vacated, we are no longer bound to consider only the record before the trial court at the time it granted the default judgment. The relevant record is what the parties placed before the trial court in this summary judgment proceeding—JD Auto I and Bell's petition.

In considering “whether the facts and record before us are substantially the same as those in JD Auto I,” the majority observes that “[t]he record we considered in JD Auto I included a return of service certifying that the citation was served only by posting in the courthouse.”⁶ In homing in on the return, the majority opinion represents that “[s]ister courts facing the same issue in cases in the same posture and with similar records have held that a defective return by itself conclusively establishes lack of service for limitations purposes,” for which it cites in Mathewson v. Anglia Homes, L.P., No. 01-23-00874-CV, 2025 WL 2471799, at *7 (Tex. App.—Houston [1st Dist.] Aug. 28, 2025, no pet. h.) (mem. op.), Ramirez v. Consol. HGM Corp., 124 S.W.3d 914, 921 (Tex. App.—Amarillo 2004, no pet.); Keeton v. Carrasco, 53 S.W.3d 13, 18–19 (Tex. App.—San Antonio 2001, pet. denied); and Salazar v. Pena, No. 08-23-00298-CV, 2024 WL 4512349, at *1 (Tex. App.—El Paso Oct. 17, 2024, no pet.). First, none of these cases support that representation.⁷

The record here is different from the JD Auto I record. The service return in the JD Auto I record is not included in the summary judgment record before us in the present appeal, just like the prior record did not include the process server's affidavit averring that service by posting was effected at JD Auto's place of business in the prior appeal. 697 S.W.3d at 458.

Thus, contrary to what the majority opinion suggests, because the prior and present appeals involve different issues, different review standards, and different records, the law-of-the-case doctrine is inapplicable. Stretching the language in which JD Auto I's holding was couched to encompass service by posting at JD Auto's business not only fails to take into account the different issues, review standards, and records involved in the prior and present appeals, but also results in JD Auto I essentially contradicting itself, i.e., plainly acknowledging in one breath that service may have been effected and then in the next breath holding it was not.

C. Why it makes sense that JD Auto I and the present appeal have different standards, different records, and different requirements

There is a great difference between an appeal seeking to reverse a default judgment (like JD Auto I) and an appeal seeking a summary judgment based on an affirmative defense (like the present appeal). In the former, the defendant seeks to avoid being deprived of a trial on the merits of the case. In the latter, the defendant instead seeks to deprive the plaintiff of such a trial. Texas law is wary of both default judgments and summary judgments because they bypass a full trial on the merits. See Tabakman v. Tabakman, 728 S.W.3d 703, 707 (Tex. 2025) (per curiam) (“Default judgments are ‘greatly disfavor[ed]’ under Texas law, consistent with the strong policy preference for adjudicating cases on the merits.”) (citing In re Lakeside Resort JV, LLC, 689 S.W.3d 916, 921, 925 (Tex. 2024)); see also Turbo Restaurants, LLC v. Reid's Refrigeration Inc., 657 S.W.3d 490, 494 (Tex. App.—El Paso 2022, no pet.) (“[S]trict compliance with service requirements in the default context is ․ intended to safeguard due process, allowing the defendant an opportunity to appear and defend the action on the merits.”); Am. Garment Properties, Inc. v. CB Richard Ellis-El Paso, L.L.C., 155 S.W.3d 431, 435 (Tex. App.—El Paso 2004, no pet.) (“The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact.”) (citing Gulbenkian v. Penn, 252 S.W.2d 929, 931 (1952)); Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 435 (Tex. App.—San Antonio 1993, writ denied) (“The law in Texas is well settled that summary judgment is a harsh remedy which must be strictly construed ․ This is because a summary proceeding is not a conventional trial, but an exception to the usual and traditional formal procedure whereby witnesses are heard in open court and documentary proof is offered and received into evidence. A summary judgment should not amount to a trial by deposition or affidavit, or be resolved by weighing the relative strength of the conflicting facts and inferences.”) (citations and quotation marks omitted).

Given that Texas law prefers trials on the merits, imposing constraints like the extrinsic evidence rule and Rule 107(h) makes sense in the default judgment context because such constraints protect the party who may otherwise be deprived of a trial on the merits. Conversely, imposing such constraints outside of the default judgment context, as the majority opinion effectively does here, has the opposite effect, i.e., makes it easier to deprive a party of a trial on the merits.

D. Credibility determinations are for the jury

Finally, the majority opinion states that “[t]he only potential evidence of timely service that Bell cites in his brief is the 2021 process server's affidavit.” In the affidavit, the server averred that citation was posted “as requested by [Bell's counsel]” on the “front, main doors of [JD Auto's] show room building,” and that he “recall[ed] specifically” posting it “on the right double-door, about 5 and 1/2 feet up from the ground.” In the majority opinion's view, these averments have no evidentiary value, i.e., “[r]ather than supplying proof of service by posting at [JD Auto's] headquarters, the 2021 affidavit and testimony establish only that reliable evidence of such posting ․ no longer exists.”

Because JD Auto did not meet its initial summary judgment burden, Bell was not required to present evidence to raise a fact issue. But if the process server's 2021 affidavit is relevant for any reason, I do not believe it is proper for us to determine whether it is reliable, especially by raising evidence outside of what was presented to the trial court in the summary judgment proceeding. It is up to the jury “to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.” City of Keller v. Wilson, 168 S.W.3d 802, 819 n.90 (Tex. 2005) (citing Ford v. Panhandle & Santa Fe Ry. Co., 252 S.W.2d 561, 563 (1952); see also id. at 819 (“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.”). Accordingly, I would leave it to the jury to resolve any inconsistencies in the process server's testimony, evaluate his credibility, and determine the import to be given his various statements.

For all the foregoing reasons, I respectfully dissent.⁸

FOOTNOTES

1.   JD Auto's motion for summary judgment cited our substitute prior opinion, but attached our withdrawn opinion as an exhibit. No difference between the two opinions appears to be at issue.

2.   JD Auto I explains the 2021 affidavit's surrounding circumstances and contents as follows:[As part of] Bell's summary judgment evidence, two affidavits of Holy-Shirley [Bell's process server] were included: (1) his initial affidavit of March 2015, which was attached to the motion for substitute service in the underlying suit; and (2) a second affidavit of December 3, 2021, which supported the motion for summary judgment in the bill of review action. The 2021 affidavit differed from the 2015 affidavit to the extent the process server averred in the later version that, besides having posted the citation and petition inside a locked glass case on the first floor of the El Paso County Courthouse (as stated in the citation return), he had also posted the documents “on the front, main doors to the front of [JD Auto's] show room building at 5800 Montana Avenue[.]”697 S.W.3d at 447.

3.   While the majority opinion finds it significant that Bell “did not point out the process server's 2021 affidavit in his summary judgment response,” I do not. Because JD Auto did not meet its initial summary judgment burden, Bell did not need to respond to prevail. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999) (“The trial court may not grant summary judgment by default because the nonmovant did not respond to the summary judgment motion when the movant's summary judgment proof is legally insufficient.”).

4.   Under the law-of-the-case doctrine, “a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case.” Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).

5.   While I take no issue with the authorities cited by the majority concerning the role a return may play in reviewing an attack on a default judgment, see, e.g., Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (“The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party.”); Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 192 n.12 (Tex. 2022) (“[I]t is imperative and essential that the record affirmatively show a strict compliance with the provided mode of service.”), these authorities do not bear on the present appeal, as it does not involve an attack on a default judgment.

6.   The majority opinion later clarifies that the return only certified one method of service, i.e., stated that posting at the courthouse occurred, but said nothing one way or the other about whether posting at JD Auto's business occurred. The body of the return reads in its entirety as follows:Came to hand on the 2nd day of December, A.D., 2015, at 14:00 o'clock p.m., and I executed the within Citation, by having the same posted on the 2nd day of December, 2015, in the County Courthouse door in El Paso County, Texas.I further certify that said Citation was posed in accordance with the law.

7.   Mathewson, Ramirez, and Keeton each held that lack of a green card signed by the addressee invalidated service by mail, rather than that a defective return conclusively established lack of service. See Mathewson v. Anglia Homes, L.P., No. 01-23-00874-CV, 2025 WL 2471799, at *8 (Tex. App.—Houston [1st Dist.] Aug. 28, 2025, no pet. h.) (mem. op.) (“[The] summary judgment evidence contained the return receipt, but it is unsigned and therefore defective.”); Ramirez v. Consol. HGM Corp., 124 S.W.3d 914, 919 (Tex. App.—Amarillo 2004, no pet.) (noting that under relevant precedent, “service of citation is not perfected by certified mail when someone other than the actual addressee signs for the document”); Keeton v. Carrasco, 53 S.W.3d 13, 19 (Tex. App.—San Antonio 2001, pet. denied) (“A return of a citation served by registered or certified mail must contain the return receipt with the addressee's signature.”; “In this case, the return receipt was signed by Laura J. Garcia. Laura J. Garcia was not the addressee; therefore, the service of process was defective.”). Finally, in Salazar v. Pena, we held that an affidavit averring that service was accomplished was of no effect because it was conclusory, not because a defective return conclusively established lack of service. See No. 08-23-00298-CV, 2024 WL 4512349, at *8 (Tex. App.—El Paso Oct. 17, 2024, no pet.).Additionally, in rendering summary judgment for JD Auto, the majority opinion relies in part on Texas Rule of Civil Procedure 118, which provides that the trial court may allow a return of service to be amended unless material prejudice will result:At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.Tex. R. Civ. P. 118.Here, neither side raised any issue relating to Rule 118 in the trial court or on appeal. And as explained above, Rule 107(h), which requires that the method of service be reflected in a filed return as a predicate for a default judgment, does not apply here. Nevertheless, the majority opinion considers whether to remand for Bell to amend the return of service, and concludes that to do so would “needlessly prolong this matter and result in material prejudice to the substantial rights of JD Auto.” Because this issue was not raised by either party, I would not rule on it. See Estate of Cougot, No. 08-22-00007-CV, 2022 WL 2866012, at *5 (Tex. App.—El Paso July 21, 2022, pet. denied) (“When reviewing a civil matter, an appellate court has no discretion to consider an issue not raised in the appellant's brief, even if the ends of justice so require.”) (citing Martinez v. El Paso Cnty., 218 S.W.3d 841, 844 (Tex. App.—El Paso 2007, pet. struck)); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (“An appellate court has no duty—or even right—to perform an independent review of the record and applicable law to determine whether there was error. Were we to do so ․ we would be abandoning our role as neutral adjudicators[.]”) (citation omitted).

8.   In addition, in my view, affirmance of the trial court's denial of JD Auto's motion for summary judgment is independently compelled by the operation of Texas Rule of Civil Procedure 123. Under this rule, our reversal of the default judgment against JD Auto based on defective service resulted in JD Auto being deemed to have entered a general appearance, thereby curing all defects in the method of serving it. See Tex. R. Civ. P. 123 (“Where the judgment is reversed ․ because of defective service ․ the defendant shall be presumed to have entered his appearance[.]”); Guardianship of Fairley, 650 S.W.3d 372, 386 (Tex. 2022) (“A party's appearance ․ cures any defect in the method of serving that party.”). Consequently, because the day on which posting was averred to have occurred (December 2, 2015) preceded the day on which limitations expired (December 6, 2015, as calculated by the majority), the record, rather than conclusively proving that timely service was not effected, shows the opposite.The majority opinion takes a different view, holding that “[b]y its plain terms,” Rule 123 “addresses the issuance of new citation following a reversal,” and “does not provide that limitations defenses are extinguished on remand[.]”While I agree that Rule 123 does not automatically extinguish limitations defenses on remand after reversal of a default judgment, it does foreclose such a defense where, as here, the defense relies on a defect in service (i.e., where process was served, albeit defectively, before limitations expired). This is because, as explained above, service defects are cured under Rule 123 as a result of the defendant being deemed to have appeared. Conversely, where a limitations defense asserts that service was untimely or was never attempted, as opposed to being defective, Rule 123 will not foreclose the defense since there is no defect in the method of service to cure.The two cases cited by the majority opinion for the proposition that a limitations defense may be asserted by a defendant after making a general appearance are different, in that they involved a failure to timely serve the defendant rather than a defect in the method of service. See Taylor v. Thompson, 4 S.W.3d 63, 65–66 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding that “[b]ecause [the plaintiff] failed to serve citations on the [defendants] within the period of limitations, she had the burden to prove that she used due diligence in procuring the subsequent issuance and service of citation upon [them],” which the plaintiff failed to do since she “offered no valid excuse for the delay in service between filing suit and obtaining service[.]”); Griffin v. Hale, No. 11-09-00146-CV, 2010 WL 2990726, at *1 (Tex. App.—Eastland July 29, 2010, no pet.) (mem. op.) (holding that “[w]hen a plaintiff files his petition within the limitations period but does not serve the defendant until after the period expires, the plaintiff must exercise diligence in serving citation to interrupt the running of limitations,” which the plaintiff failed to do since “the clerk issued a citation at the time of the filing, almost three years passed and [the defendant] was never served,” and “[the plaintiff] offer[ed] no explanation for the delay”).JD Auto's approach to avoiding the effect of Rule 123 is equally unavailing. First, JD Auto contends that its appearance under Rule 123 was “a limited one with a limited purpose,” i.e., it expired at the end of the 2024 term of court and thus was of no effect at the time JD Auto filed its motion for summary judgment in 2025. However, neither the plain language of Rule 123 nor Atchison, T & S.F. Ry. Co. v. Adams, 14 S.W. 1015 (Tex. Civ. App. 1889, no writ)—JD Auto's sole authority for this novel argument—supports such a construction of Rule 123. While Rule 123 provides that after a judgment is reversed because of defective service, “the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed,” the rule does not provide that the defendant's appearance expires at the end of such term. See Tex. R. Civ. P. 123. And while Atchison held that a venue challenge should have been permitted following reversal of a default judgment, it neither suggested that the defendant's appearance expired at any point, nor contained any discussion of Rule 123's predecessor, which contained the same language as Rule 123. See 14 S.W. at 1015.Second, JD Auto contends that Rule 123 applies only to non-resident defendants. However, Boyd v. Kobierowski—JD Auto's sole authority for this proposition—merely applies Rule 123 to a non-resident defendant, and does not hold that the rule applies only to non-resident defendants. 283 S.W.3d 19, 22 (Tex. App.—San Antonio 2009, no pet.). Numerous other cases clarify that Rule 123's application is not confined to non-residents. See, e.g., Infra-Pak (Dallas), Inc. v. Narmour, 852 S.W.2d 565, 567 (Tex. App.—Dallas 1992, no writ) (applying Rule 123 to resident defendant); Cates v. Pon, 663 S.W.2d 99, 102 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.) (same); Gianelle v. Morgan, 514 S.W.2d 133, 134 (Tex. App.—Texarkana 1974, no writ) (same); Neal v. Roberts, 445 S.W.2d 58, 61 (Tex. App.—Houston [1st Dist.] 1969, no writ) (same); see also HB & WM, Inc. v. Smith, 802 S.W.2d 279, 282 (Tex. App.—San Antonio 1990, no writ) (applying Rule 123 without mentioning defendant's state of residence); H. L. McRae Co. v. Hooker Const. Co., 579 S.W.2d 62, 66 (Tex. App.—Austin 1979, no writ) (same).

LISA J. SOTO, Justice