Appeal from the 247th District Court Harris County, Texas
Trial Court Cause No. 2015-63453
consists of Justices Boyce, Jamison, and Brown.
W. Brown Justice.
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.
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
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.
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.
Standard of Review and Applicable Law
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.
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.).
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
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
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