Court of Appeals of Texas, Fifth District, Dallas
DOUGLAS B. CLARK III, KEVIN PARTICK, NOISE4GOOD, L.L.C., MGOOD, L.L.C., AND 4GOOD DIGITAL, L.L.C., Appellants
DEBORAH NEWMAN, PLATINUM XYZ, LLC, AND JDC ENTERPRISES, Appellees
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-00924
Justices Bridges, Evans, and Schenck.
J. SCHENCK JUSTICE.
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.
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.
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.
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).
Error on the Face of the Record
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
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.
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.
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 ...