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Clark v. Newman

Court of Appeals of Texas, Fifth District, Dallas

May 23, 2017

DOUGLAS B. CLARK III, KEVIN PARTICK, NOISE4GOOD, L.L.C., MGOOD, L.L.C., AND 4GOOD DIGITAL, L.L.C., Appellants
v.
DEBORAH NEWMAN, PLATINUM XYZ, LLC, AND JDC ENTERPRISES, Appellees

         On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-00924

          Before Justices Bridges, Evans, and Schenck.

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE.

         Appellants perfected this restricted appeal from a no-answer default judgment entered against them after substituted service of process. On appeal, appellants assert the default judgment should be set aside because of defective service. We reverse the trial court's judgment as to Douglas B. Clark III ("Clark"), Noise4Good, LLC ("N4G"), mGood, L.L.C. ("mGood"), and 4Good Digital, L.L.C. ("Digital") and remand claims against them for further proceedings. We affirm the trial court's judgment as to Kevin Patrick ("Patrick"). We issue this memorandum opinion because all issues are settled in law. Tex.R.App.P. 47.4.

         Background

         Appellees, Deborah Newman, Platinum XYZ, LLC, and JDC Enterprises, Inc., sued appellants over various business dealings among the parties. After private process servers attempted to serve appellants without success, appellees filed motions for substituted service. In their motions, appellees requested that the trial court authorize service on Clark, individually and as the registered agent of N4G, mGood, and Digital, by leaving a copy of the citations with the petition attached with anyone over sixteen years of age at the security office of the gated community in which Clark lived, and service on Patrick by leaving a copy of the citation with the petition attached with anyone over sixteen years of age or affixed to the front door of his usual place of business in New York. The trial court authorized substituted service requested.

         Thereafter, appellees filed a motion for default judgment against appellants. The trial court granted the motion and entered a default judgment against appellants awarding appellees $230, 000. Appellants did not file a motion for new trial, and they timely filed this restricted appeal.

         Discussion

         I. Restricted Appeal

         To obtain a reversal of an underlying judgment in a restricted appeal, a party must show: (1) a notice of restricted appeal was filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment of which the party complains and did not file a timely post-judgment motion; and (4) error is apparent on the face of the record. Tex.R.App.P. 26.1(c) and 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Dolly v. Aethos Commc'ns Sys., Inc., 10 S.W.3d 384, 387-88 (Tex. App.-Dallas 2000, no pet.). Elements one through three are not contested here; thus, the only issue is whether error is apparent on the face of the record. Whether error is apparent on the face of the record before this Court, depends on resolution of the issue of proper service. See Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007).

         II. Error on the Face of the Record

         In contrast to the usual rule that all presumptions-including valid issuance, service, and return of citation-will be made in support of a judgment, no such presumptions apply to a direct attack on a default judgment. See Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Rather, the record must affirmatively show strict compliance with the applicable rules relating to service of process. See McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Dolly, 10 S.W.3d at 388. Even actual notice to a defendant is not sufficient to convey jurisdiction on the trial court and will not serve to cure defective service. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Whether service was in strict compliance with the rules is a question of law we review de novo. Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.-Houston [1st Dist.] 2005, no pet.). It is the responsibility of the party requesting service to ensure both that proper service is accomplished and that the record reflects proper service. Id. at 869.

         Appellants assert there are three instances of improper service apparent on the face of the record. Namely: (1) the affidavits submitted to support substituted service were insufficient to support the location for service and to identify the person to receive service; (2) the citations were defective; and (3) the orders authorizing substituted service on Digital and Patrick were flawed because they recited the manner of service ordered will be reasonably effective to give mGood notice of the suit, not Digital and Patrick.

         III. Substituted Service

         Because appellees obtained a default judgment after substituted service, they had the burden to prove that appellants were served in the manner required by the applicable statute. See Dolly, 10 S.W.3d at 388. Virtually any deviation from the applicable statute will be sufficient to set aside a default judgment in a restricted appeal. Id. Strict compliance is especially important when substituted service under Texas Rule of Civil Procedure 106 is involved. Id.

         Under Rule 106, when the traditional methods of service of process-in person or via certified mail-are unsuccessful, the trial court may, "upon motion supported by affidavit, " authorize service in a manner "that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit." Tex.R.Civ.P. 106(b). The supporting affidavit must state: (1) "the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found;" and (2) the specific facts showing that traditional service has been attempted "at the location named in such affidavit but has not been successful." Id. Upon such a showing, the trial court may authorize service: (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit (the defendant's usual place of business or usual place of ...


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