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Rhodes v. Kelly

Court of Appeals of Texas, Fifth District, Dallas

June 27, 2017

JOAINNE RHODES, Appellant
v.
JERRIE KELLY, Appellee

         On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-06302

          Before Justices Lang, Myers, and Stoddart

          MEMORANDUM OPINION

          DOUGLAS S. LANG, JUSTICE

         In this case, appellant Joainne Rhodes contends the trial court improperly granted a default judgment in favor of appellee Jerrie Kelly as to Kelly's claim to enforce an alleged agreement to transfer an interest in real property. Further, Rhodes claims the trial court erred by denying Rhodes's motion for a new trial. Specifically, in three issues on appeal, Rhodes asserts (1) she was entitled to a new trial because she was not properly served with citation and, alternatively, satisfied the requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); (2) "[Kelly's] petition and motion for default judgment do not present sufficient evidence to grant a default judgment and fail upon the face of the documents"; and (3) Kelly was not entitled to recover the attorney's fees awarded to her by the trial court.

         We decide against Rhodes on her three issues. The trial court's judgment is affirmed.

         I. FACTUAL AND PROCEDURAL CONTEXT

         Rhodes and Kelly are sisters. In 2011, Rhodes and her son, Aaron Glover, co-owned a residential property located at 418 S.E. 13th Street in Grand Prairie, Texas ("the Property). Pursuant to a written lease agreement between Rhodes and Kelly dated June 21, 2011 ("the Lease"), Kelly agreed to pay $300.00 per month rent to live at the Property.

         On June 2, 2015, Kelly filed this lawsuit against Rhodes and Glover. In her petition, Kelly asserted in part,

In or about October 2012, Defendant Rhodes agreed to sell the Property to Plaintiff in exchange for her providing full time care for Plaintiff and Defendant Rhodes' two sisters. Additionally, Plaintiff was to fix up the house and make it habitable once again (following Defendant Glover's damage). Finally, Plaintiff was to pay all taxes and other amounts related to the Property as they became due. In exchange for this, Plaintiff was to receive unencumbered title to the Property from Defendant Rhodes.

         Additionally, Kelly contended "[s]ince October 2012, Plaintiff has resided in and maintained the Property as her homestead" and "[d]espite spending over $30, 000.00 on improvements and expenses related to the Property (including the taxes owed), Defendants have refused and continue to refuse to recognize Plaintiff's interest in the Property."

         Kelly asserted claims for "breach of contract (specific performance), " "quiet title action, " and promissory estoppel. Specifically, as to her breach of contract claim, Kelly stated in part (1)"Rhodes and Plaintiff entered into a valid agreement regarding the purchase of the Property"; (2) "Plaintiff has performed her contractual obligations"; (3) "Defendants have breached the contract by, without limitation, attempting to remove Plaintiff from the Property and failing to provide Plaintiff with title to the Property consistent with her ownership interest"; and (4) "[b]ecause Plaintiff has already paid for the Property in full, she seeks specific performance through Defendants' conveyance of legal, unencumbered title to the Property to Plaintiff." As to her "quiet title action, " Kelly stated in part (1) "Defendant Rhodes agreed to provide Plaintiff with title to the Property in exchange for her providing medical care and assistance to their sisters and for making repairs and improvements following Defendant Glover's destruction/abandonment" and (2) "each Defendants' refusal to allow the title of the Property to accurately reflect Plaintiff's ownership interest clouds the title of Plaintiff to the Property, depreciates the market value, and prevents Plaintiff from enjoying the use of the Property in her own best interest as owner." Further, Kelly stated in the petition (1) "[i]n addition to the above amount, Plaintiff is entitled to recover reasonable attorney fees as defined in conformity with § 38.001 Tex. Civ. Prac. & Rem. Code, " see Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2015), and (2) "Plaintiff is therefore entitled to recover from Defendant an additional sum to compensate Plaintiff for a reasonable fee for such attorney's necessary services in the preparation and prosecution of this action, as well as a reasonable fee for any and all necessary appeals to other courts."

         On September 18, 2015, Kelly filed a motion for default judgment in which she requested judgment against Rhodes and Glover "quieting title to the subject property in favor of Plaintiff and awarding damages and attorney's fees as stated herein." Further, Kelly stated in the motion (1) "[o]n July 3, 2015, Defendants Aaron Glover and Joainne Rhodes were each properly served with citation and a copy of Plaintiff's Petition via personal service, "; (2) "Defendants have not filed an Answer, or any pleading constituting an Answer, and have not entered an appearance"; (3) "Plaintiff is entitled to a default judgment quieting title to the Property in Plaintiff's name and awarding the damages detailed in the attached Affidavit of Jerrie Kelly"; and (4) "[p]ursuant to the Lease, Plaintiff requested reasonable and necessary attorney fees and attaches as Exhibit 'J' the Affidavit of Corey Herrick proving attorney fees in this case and incorporates same by this reference." The exhibits attached to Kelly's motion included, among other things, affidavits by her[1] and Herrick[2] and copies of the Lease and several documents purportedly pertaining to payments made by Kelly described in her affidavit.

         The trial court signed a default judgment against Rhodes and Glover dated September 25, 2015. On October 9, 2015, both defendants filed general denial answers and motions for new trial. In an order dated November 19, 2015, the trial court's September 25, 2015 default judgment was set aside as to Glover and the case was reinstated as to the claims against him.

         On approximately June 1, 2016, Kelly nonsuited her claims against Glover. Subsequently, the trial court signed a "Final Judgment" dated June 2, 2016, in which it (1) granted Kelly's motion for default judgment as to Rhodes; (2) awarded Rhodes's interest in the Property to Kelly; and (3) awarded Kelly damages against Rhodes in the amount of $10, 547.05, attorney's fees and costs against Rhodes in the amount of $6, 091.00, and additional attorney's fees against Rhodes in the event that Kelly prevails at certain "postjudgment stages."

         Rhodes filed a motion for new trial on June 13, 2016. In that motion, Rhodes asserted arguments under three headings: "defective service of citation, " "petition does not support default judgment, " and "mistake or accident." Under "defective service of citation, " Rhodes contended in part (1) "Defendant was never served"; (2) "Defendant[s] reside in West Chicago, Illinois however [sic] the return of service states that they were served on July 3, 2015 at 418 SE 18th Street, Grand Prairie, Texas 75051 at which neither Defendant resides"; (3) "Plaintiff falsified service documents"; and (4) the trial court "could not have granted a default judgment on the claim to Quiet Title with the pleadings and evidence filed with the [trial court] by Plaintiff." Under the second heading, i.e., "[p]etition does not support default judgment, " Rhodes asserted in part (1) "Plaintiff has provided no contract that was executed between all the parties"; (2) "[t]hus, Plaintiff's petition does not support the default judgment"; (3) "[t]o prevail in a suit to quiet title, a plaintiff must prove . . . he has an interest in a specific property"; and (4) "[n]othing in the Plaintiff's pleading shows she has an interest in the Property." Under the third heading in her motion for new trial, Rhodes asserted that when a defendant does not file an answer because of a "mistake or accident, " the trial court should set aside the default judgment and grant a new trial if the defendant can meet the requirements of Craddock. See 133 S.W.2d at 126. Specifically, Rhodes argued the requirements of Craddock were met in this case because:

14. . . . Defendant's failure to answer was not intentional, but was accidental. Specifically, she were [sic] never served with citation. Defendant at the time of service was barred from leaving the State of Illinois due to being out of jail on bond. . . .
15. . . . Defendant has a meritorious defense. Specifically, Defendant never entered into contract with Plaintiff for the purchase of any interest in the property. . . . [and]
16.. . . [A] new trial will not cause delay or otherwise injure Plaintiff. Defendant is ready for trial.

         The exhibits attached to Rhodes's motion for new trial included (1) a copy of an August 19, 2015 demand letter respecting the Property sent by Kelly's counsel to Rhodes and Glover at an address in West Chicago, Illinois; (2) an affidavit of Glover[3]; (3) an affidavit of Jim Lytle, described by Rhodes as her son's friend[4]; (4) an "Affidavit of Service" by Charles P. Goodson pertaining to this case, with an attached "citation"[5]; (5) a copy of an "Appearance Bond" pertaining to Rhodes's appearance in a criminal case against her in a state court in McLean County, Illinois, which bond stated in part that she was not to leave Illinois "without permission of the Court"; (6) a "receipt voucher" from the court in that same Illinois case, showing a fee was paid for a "copy of bond form"; and (7) a printout of a search result from a McLean County, Illinois, government website, showing details of criminal proceedings against Rhodes in that county.

         A hearing on Rhodes's motion for new trial was held on July 18, 2016. Both sides appeared through counsel, but no live testimony was presented by either side. According to the reporter's record, counsel for Rhodes asserted in part (1) "I have three witnesses to testify that Ms. Rhodes was living in Chicago. Was at a picnic, family picnic on July 3rd, the day of the alleged service of citation, and therefore couldn't be here"; (2) the trial court has no "power to grant a default judgment" because "the face of their petition is defective"; (3) "[t]he statute of limitations for oral contract is two years" and that limitations period expired before this suit was filed; (4) "[the] Statute of Frauds prevents the transfer of property on an oral contract"; (5) a suit to quiet title requires an interest in property, which "is only through a deed or a contract, none of which they have"; and (6) "the petition does not give enough evidence to prove that they're entitled to the claims they are seeking."

         Counsel for Kelly objected to several of the exhibits attached to the motion for new trial. Specifically, (1) objections to the McLean County, Illinois, appearance bond, receipt voucher, and website printout described above were asserted on the grounds of lack of authentication and hearsay, and (2) an objection to Lytle's affidavit was asserted on the ground of lack of basis for his personal knowledge. The objections were not ruled upon. Additionally, counsel for Kelly argued (1) "service was effective on Ms. Rhodes in July 2015"; (2) "[w]e know this because we have an affidavit of service on file from a private process server firm"; (3) "the return of service speaks for itself"; (4) "[t]he process server, Charles Gibbons, I believe, is here today prepared to offer testimony if the Court would prefer"; (5) a parole order in Illinois "doesn't mean you can't violate that by coming to Texas"; (6) there is no evidence that Kelly falsified service documents; (7) "it's clear that [Kelly] filed causes of action, breach of contract, suit for quiet title, and in the alternative, promissory estoppel" and "did have testimony" in her motion; (8) Rhodes's Craddock argument "confuses the motion" because Craddock "presumes that service was indeed effective"; and (9) regardless, Rhodes has not fulfilled the requirements of Craddock.

         Counsel for Rhodes responded in part (1) Lytle "is here to testify that at the time of service the Defendant was in Illinois at a family barbecue" and (2) the McLean County documents in question are "self-authenticating."

         In an order dated July 18, 2016, Rhodes's motion for new trial was denied. This appeal timely followed.

         II. DENIAL OF MOTION FOR NEW TRIAL

         A. Standard of Review

         We review a trial court's denial of a motion for new trial after a default judgment for abuse of discretion. See, e.g., MobileVision Imaging Serv., L.L.C. v. LifeCare Hosp. of N. Tex., L.P., 260 S.W.3d 561, 564 (Tex. App.-Dallas 2008, no pet.) (citing In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam)). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. See Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); see also Cooper v. Campbell, No. 05-15-00340-CV, 2016 WL 4487924, at *5 (Tex. App.-Dallas Aug. 24, 2016, no pet.) (mem. op.) (abuse of discretion does not occur when trial court bases its decision on conflicting evidence, as long as some evidence reasonably supports trial court's decision).

         B. Analysis

         In her first issue, Rhodes contends she was entitled to a new trial because she was not served with citation and, alternatively, she provided proof respecting all three Craddock elements. We address those arguments in turn.

         1. Service of Citation

         a. Applicable Law

         A defendant who was not served with process prior to a default judgment is generally entitled to a new trial without any further showing. See MobileVision Imaging Serv., 260 S.W.3d at 564 (citing Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 574 (Tex. 2006) (per curiam)). Texas Rule of Civil Procedure 106(a) provides in part that, unless a citation or order of the court directs otherwise, "the citation shall be served by any person authorized by Rule 103 by . . . delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto." Tex.R.Civ.P. 106(a). The officer or authorized person executing the citation must complete a return of service. Tex.R.Civ.P. 107(a). The return, together with any document to which it is attached, must include the following information: (1) the cause number and case name; (2) the court in which the case is filed; (3) a description of what was served; (4) the date and time the process was received for service; (5) the person or entity served; (6) the address served; (7) the date of service or attempted service; (8) the manner of delivery of service or attempted service; (9) the name of the person who served or attempted to serve the process; (10) if the person named in (9) is a process server certified under order of the Supreme Court, his or her identification number and the expiration date of his or her certification; and (11) any other information required by rule or law. Tex.R.Civ.P. 107(b). No default judgment shall be granted in any cause until proof of service shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment. Tex.R.Civ.P. 107(h); see also Tex. R. Civ. P. 239 (at any time after defendant is required to answer, "the plaintiff may in term time take judgment by default against such defendant if he has not previously filed an answer, and provided that the return of service shall have been on file with the clerk for the length of time required by Rule 107").

         Service of citation must be in strict compliance with the rules of civil procedure to establish jurisdiction over a defendant and support a default judgment. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); see also Adame v. Palisades Collection, L.L.C., No. 05-11-00793-CV, 2012 WL 2564717, at *1-2 (Tex. App.-Dallas Jul. 3, 2012, no pet.) (mem. op.) (defective service may be raised for first time on appeal). "If strict compliance is not shown, the service of process is invalid and of no effect." Cervantes v. Cervantes, No. 03-07-00381-CV, 2009 WL 3682637, at *3 (Tex. App.-Austin Nov. 5, 2009, no pet.) (mem. op.) (citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985)); see also Wilson, 800 S.W.2d at 836 (default judgment is improper against defendant who has not been served in strict compliance with law, even if he has actual knowledge of lawsuit). "In a direct attack on a default judgment, there are no presumptions in favor of a valid issuance, service, and return of the citation." Adame, 2012 WL 2564717, at *2.

         "However, strict compliance with the rules does not require 'obeisance to the minutest detail.'" Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex. App.-Dallas 2003, no pet.) (quoting Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex. App.-Houston [1st Dist.] 1995, no writ)); Cervantes, 2009 WL 3682637, at *3. "Errors such as mistaken capitalization in the defendant's name and spelling errors too minor to raise any doubt that the correct person was served are insufficient to validate service." Westcliffe, 105 S.W.3d at 290. "As long as the record as a whole, including the petition, citation, and return, shows that the citation was served on the defendant in the suit, service of process will not be invalidated." Cervantes, 2009 WL 3682637, at *3 (quoting Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App.-Austin 2004, pet. denied)).

         If a defendant did not receive suit papers, generally a default judgment must be set aside. Id. at *5. However, an exception to this rule exists when the return of service includes the proper recitations and nonreceipt is uncorroborated. Id. The return of service is considered prima facie evidence of the facts asserted therein. Id. "The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party." Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); accord Adame, 2012 WL 2564717, at *2; Cervantes, 2009 WL 3682637, at *5.

         b. Application of Law to Facts

         Rhodes argues (1) she provided two affidavits "to support that she was not in Texas at the time of alleged service"; (2) she "was also prepared to have live testimony from two individuals that would attest to her being in West Chicago, Illinois at a family picnic at the time of the alleged service"; (3) service of citation on her personally at "418 SE 18th Street, Grand Prairie, Texas 75051" on the date alleged "was an impossibility" because at the time of the alleged service of citation, she "was free on bond in Illinois and, per her bond agreement, prohibited from leaving the state till after her case was adjudicated without prior approval"; (4) "the address listed in the affidavit of the process server does not even exist"; and (5) "[i]t has historically been the practice of courts in Texas to liberally grant motion for new trials [sic] when a no answer default judgment has been entered if the Appellant provides more than just bare allegation of no service." Additionally, in her reply brief in this Court, Rhodes asserts she provided "self-authenticating evidence that at the time of alleged service she was not allowed to leave the State of Illinois" and "[t]hus, her evidence was not hearsay or it fell under an exception to the hearsay rule and as such was admissible evidence to prove non-service of citation."

         Kelly responds (1) Lytle's affidavit "failed to state the basis for any personal knowledge he claimed to possess regarding Appellant" and was "irrelevant"; (2) the other evidence objected to by Kelly at the hearing described above was "unauthenticated" and "hearsay"; (3) "the mere fact that leaving Illinois . . . may have allegedly violated [Rhodes's] parole does not establish that she could not have done so"; and (4) although the process server's return of service "incorrectly notes the address for service as '418 S.E. 18th Street' instead of '418 S.E. 13th Street, ' which is the address of the [Property], " "[t]his typographical error does not negate the fact that service was effected on Ms. Rhodes."

         As described above, "[t]he recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party." Primate Constr., Inc., 884 S.W.2d at 152. Accordingly, we turn to Rhodes's "proof" respecting her assertion that she was not served. See id. The record shows Goodson stated in the "Affidavit of Service" that "on the 3rd day of July, 2015 at 3:15 pm, I: executed service by delivering a true copy of the Citation, Copy of Plaintiff's Original Petition and Request for Disclosures, to Joainne Rhodes personally at 418 S E 18th Street, Grand Prairie, TX 75051, and informed said person of the contents therein, in compliance with state statutes." The parties do not dispute that the address of the Property is "418 S.E. 13th Street." However, Rhodes cites no evidence in the record to support her position that "the address listed in the affidavit of the process server does not even exist." Moreover, to the extent Rhodes contends the address listed in the affidavit of the process server contained an error, (1) such alleged error consisted of only one incorrect digit, i.e., an "8" in place of a "3, and (2) the process server's affidavit states a copy of the citation was delivered to "Joainne Rhodes personally." Rhodes does not explain, and the record does not show, how the alleged incorrect digit "raise[d] any doubt" as to the identity of the person served. See Westcliffe, 105 S.W.3d at 290-91 (concluding unauthorized correction of typographical error in address where defendant could be found and served did not invalidate service, where petition, citation, and return established proper person was served).

         Additionally, Rhodes cites Texas Rule of Evidence 902 in support of her position that her evidence respecting proceedings against her in McLean County, Illinois, was "self-authenticating."[6] Specifically, Rhodes contends in part that her "Appearance Bond" and the receipt voucher showing payment for a copy of that bond are self-authenticating under subsections (2) and (4) of rule 902. The record shows the "Appearance Bond" contains (1) a "Certificate of Defendant" signed by Rhodes in which she certifies she understands the terms and conditions of the bond and (2) a box containing the statement, "Signed and acknowledged before me and bond received by me this 6th day of February, 2015, " with an "official signature" below that statement. There are no other signatures or certifications on either document. Rhodes does not explain, and the record does not show, how those documents meet (1) the requirement of subsection 902(2)(B) respecting certification by a public officer as to the official signature on the document and the capacity of the signer or (2) the requirement of subsection 902(4) requiring certification of a copy as correct. Further, Rhodes contends subsection 902(5) applies to the printout of a search result from a McLean County, Illinois, government website, showing details of criminal proceedings against Rhodes in that county. Rhodes cites no authority to support her position that a website search result is a "publication" for purposes of that subsection. Moreover, (1) that search result merely lists details of Illinois criminal proceedings against Rhodes and does not describe a requirement to remain in Illinois, and (2) none of the McLean County evidence shows Rhodes was physically prevented from leaving Illinois or purports to describe her location on the date of the alleged service in question.

         Also, Rhodes relies on (1) the affidavits of Glover and Lytle and (2) her assertions that she was "prepared to have live testimony from two individuals that would attest to her being in West Chicago, Illinois at a family picnic at the time of the alleged service" and "[i]t has historically been the practice of courts in Texas to liberally grant motion for new trials [sic] when a no answer default judgment has been entered if the Appellant provides more than just bare allegation of no service." In the portion of her appellate brief respecting those arguments, Rhodes cites generally to Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc., 143 S.W.3d 538 (Tex. App.-Austin 2004, no pet.).

         The record does not show any live testimony was presented at the hearing described above or that Rhodes objected to the lack of such testimony. Further, although Glover stated in his affidavit that Rhodes "does not reside in Texas, " "was living with me at the alleged time of service in West Chicago, Illinois, " and "was residing in West Chicago, Illinois at the time of the alleged service due to her being out on bond and unable to leave the state, " none of those statements specifically address Rhodes's location on the alleged date of service in question or preclude her presence in Texas on that date. Additionally, Lytle stated in part in his affidavit that "Rhodes was in West Chicago at the time of the alleged service." However, in a challenge to a return of service, "[t]he test of the evidence, from whatever source, is whether it demonstrates independent facts and circumstances that support, and thus corroborate, the challenger's claim." In re Spiller, 303 S.W.3d 426, 432 (Tex. App.-Waco 2010, no pet.) (emphasis added) (quoting Min v. Avila, 991 S.W.2d 495, 503 (Tex. App.-Houston [1st Dist.] 1999, no pet.)). Lytle did not testify in his affidavit that he saw Rhodes in Chicago, nor does Rhodes explain how Lytle's statement demonstrates any "independent facts or circumstances" respecting her position. See id. Further, the record contains no affidavit or testimony of Rhodes respecting whether she was served. Rhodes cites no authority, and we have found none, to support the position that Lytle's affidavit, alone, meets the requirement to show more than "uncorroborated proof of the moving party." See Primate Constr., Inc., 884 S.W.2d at 152; Davis v. Davis, 521 S.W.2d 952, 954 (Tex. Civ. App.-Fort Worth 1975, no writ) (in order to dispute recitations in return of service, "[t]here should be at least two witnesses or one witness with strong corroborative facts and circumstances proceeding from a source other than the witness").

         Finally, the case cited by Rhodes, Limestone, involved an appeal from the overruling of plaintiff Limestone Construction, Inc.'s motion for new trial following a default no-evidence summary judgment in favor of defendant Summit Commercial Industrial Properties, Inc. See 143 S.W.3d at 540. Limestone's motion for new trial was based solely on its claim that it did not receive prior notice of Summit's summary judgment motion and hearing. Id. at 544. The court of appeals stated in part, "We initially note that the historical trend is towards the liberal granting of motions for new trial filed after default judgments. But bare allegations of lack of notice do not suffice; instead, the nonmovant must offer evidence, either in the form of an affidavit or live testimony." Id. (citations omitted).[7] Then, the court of appeals stated "[i]n this case, the presumption of service was rebutted in two ways, " i.e. by an affidavit of Limestone's attorney denying receipt of notice of the summary judgment motion and by Summit's own affidavit, which showed the package containing the summary judgment motion was eventually returned to Summit by the postal service as "unclaimed." Id. at 544-45. The court of appeals concluded that evidence warranted reversal of the denial of Limestone's motion for new trial. Id. at 547.

         In the case before us, to the extent Rhodes argues that pursuant to Limestone, she was required merely to provide "more than just bare allegation of no service" to prevail on her challenge respecting service of citation, we disagree. Limestone did not mention or address the "corroboration" requirement described above. See Primate Constr., Inc., 884 S.W.2d at 152. Further, Limestone (1) involved a presumption of service that was rebutted "in two ways" and (2) is not necessarily inconsistent with the corroboration requirement described above. See id. We decline to adopt Rhodes's interpretation of Limestone.

         On this record, we conclude the trial court did not abuse its discretion by concluding the recitations in the return of service were not rebutted by Rhodes. See id.; Adame, 2012 WL 2564717, at *2; Cervantes, 2009 WL 3682637, at *5. Accordingly, we conclude the trial court did not abuse its ...


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