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Nelson v. Nelson

Court of Appeals of Texas, Fourteenth District

June 8, 2017


         On Appeal from the 247th District Court Harris County, Texas Trial Court Cause No. 2015-63453

          Panel consists of Justices Boyce, Jamison, and Brown.


          Marc W. Brown Justice.

         In this restricted appeal, appellant Wilfrid Randall Nelson seeks reversal of a no-answer default judgment rendered against him. In his first and second issues, Wilfrid contends that the judgment is void because he was not properly served with process. In his four remaining issues, Wilfrid contends that the trial court erred in awarding damages to appellee Amity Leigh Nelson. We find that Wilfrid was not properly served with process, and therefore, the trial court did not acquire personal jurisdiction over Wilfrid. Accordingly, the judgment is void. We reverse and remand.

         I. Background

         This restricted appeal stems from Amity's suit to enforce a contract incident to the parties' divorce. As alleged in Amity's original and amended petitions, Wilfrid was in breach of the parties' alimony contract. Nothing in the record shows that Wilfrid was served with the original petition.

         The record reflects that the amended petition was served on Wilfrid in person. However, it was served without a citation. For instance, a form in the record entitled "NOTICE (SHORT FORM)" directed an authorized person to serve the amended petition to Wilfrid at a certain address in Houston, Harris County, Texas. The notice affixes a return of service, which was completed on December 22, 2015. The return states that the amended petition was served on Wilfrid at the Houston address. The notice and return do not mention a citation. Wilfrid did not otherwise waive service of process.

         The amended petition contains a notice of hearing, which was set for January 27, 2016 at 9:30 a.m. Wilfrid did not appear at the scheduled hearing. The trial court signed an order granting default judgment on January 28, 2016. In the order, the trial court found: (1) it had jurisdiction over the subject matter and the parties; (2) all persons entitled to citation were properly cited; (3) Wilfrid breached a contractual obligation to pay alimony to Amity; (4) Wilfrid owed $55, 632.66 in past-due alimony payments; (5) Wilfrid committed anticipatory breach of his remaining contractual obligations; (6) attorney's fees of $1, 670.00 should be assessed against Wilfrid; and (7) interest of five percent would accrue (compounded annually). The trial court ordered Wilfrid to pay these amounts on or before February 19, 2016. Wilfrid filed a notice of appeal on July 28, 2016. Although Amity was represented by counsel at the trial court level, she appears pro se on appeal.

         II. Standard of Review and Applicable Law

         A direct attack on a judgment by restricted appeal must: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment made the subject of the complaint; (4) who did not file a post-judgment motion, request for findings of fact and conclusions of law, or other notice of appeal; and (5) demonstrate that the error upon which the complaint is based is apparent on the face of the record. Tex.R.App.P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Conseco Fin. Servicing v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 670 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The face of the record consists of all papers on file before the judgment as well as the reporter's record. Conseco, 78 S.W.3d at 670.

         In restricted appeals, "[t]here are no presumptions in favor of valid issuance, service, and return of citation." Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). If the record in a restricted appeal fails to affirmatively show strict compliance with the rules of civil procedure governing service of citation, the attempted service of process is invalid and of no effect. See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985) (holding that record did not reflect strict compliance with procedural rules relating to issuance, service, and return of citation, where petition alleged that registered agent was "Henry Bunting, Jr." whereas sheriff's return on citation showed delivery to "Henry Bunting"). When the service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Even actual notice, without proper service, is insufficient to invoke a trial court's jurisdiction to render a default judgment. Id. Whether service strictly complies with the rules is a question of law that we review de novo. Furst v. Smith, 176 S.W.3d 864, 869-70 (Tex. App.-Houston [1st Dist.] 2005, no pet.).

         The citation must be directed to the defendant and be styled "The State of Texas." Tex.R.Civ.P. 99(b). The citation must also include: (1) a signature by the clerk under seal of court; (2) name and location of the court; (3) date of the filing of the petition; (4) date of issuance of the citation; (5) file number; (6) names of parties; (7) name and address of plaintiff's attorney or plaintiff; (8) response deadline; (9) clerk's address; and (10) notification regarding default in absence of an answer. Id. Finally, the citation must include the following notice language:

You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you.

Tex. R. Civ. P. 99(c). The officer or authorized person executing the citation must complete a return of service. See Tex. R. Civ. P. 107. The return must state the manner, date, and time the officer or authorized person ...

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