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Creaven v. Creaven

Court of Appeals of Texas, Fourteenth District

May 22, 2018

JOYCE CREAVEN, Appellant
v.
CAROLINE CREAVEN, Appellee

          On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Cause No. 16-DCV-230794

          Panel consists of Justices Boyce, Jamison, and Brown.

          OPINION

          MARTHA HILL JAMISON JUSTICE

         This is a tale of three street names. Caroline Creaven sued her mother Joyce Creaven for allegedly improperly withdrawing funds from Caroline's college fund.[1] The trial court granted Caroline's motion for substituted service of process and ordered substituted service. The affidavit in support of the motion, the substituted service order, and the return of service referenced addresses for Joyce with three different but similar street names. After Caroline purportedly served Joyce, Caroline moved for a no-answer default judgment, which the trial court granted. Joyce complains on appeal that the default judgment is void because Caroline did not strictly comply with the terms of the order granting substituted service in that the address in the return of service varied from the address in the order.[2] Concluding that Caroline failed to create a record reflecting that she served Joyce at the correct address, we reverse and remand.

         Caroline's motion for substituted service was supported by her process server's "Affidavit in Support of Motion for Alternate Service" in which the process server attested, on page one, that he attempted to serve Joyce five times at an address on "Cambrian Park Court" in Sugar Land, Texas and, on page two, that he had determined Joyce's "usual place of business, usual place of abode or other place where [she could] probably be found" was at an address on "Cambrian Court" in Sugar Land.[3] In its "Order Authorizing Substitute Service, " the trial court ordered service to be completed on Joyce at an address on "Cambrian Park" in Sugar Land. In his "Affidavit of Service, " the process server attested that he served Joyce at an address on "Cambrian Court."[4]

         On appeal, Joyce seeks to reverse the no-answer default judgment granted against her by the trial court on the basis that the trial court lacked jurisdiction to render judgment because Joyce was not properly served with process.[5] A trial court's jurisdiction is dependent upon citation issued and served in a manner provided for by law. Santex Builders, LLC v. Guefen Const., LLC, No. 14-08-00840-CV, 2009 WL 4810286, at *2 (Tex. App.-Houston [14th Dist.] Dec. 15, 2009, no pet.) (mem. op.); Marrot Commc'ns, Inc. v. Town & Country P'ship, 227 S.W.3d 372, 376 (Tex. App.-Houston [1st Dist.] 2007, writ denied). Unless the record affirmatively shows an appearance by the defendant, proper service of citation on the defendant, or a written waiver of service at the time the default judgment is entered, the trial court does not have personal jurisdiction to render the default judgment against the defendant. Santex Builders, 2009 WL 4810286, at *2; Marrot Commc'ns, 227 S.W.3d at 376. We review de novo whether a trial court has personal jurisdiction.[6] See Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009); see also Santex Builders, 2009 WL 4810286, at *4 (addressing de novo whether service was defective and thus failed to confer jurisdiction on trial court and not addressing whether trial court abused discretion under Craddock in denying motion for new trial).

         For a default judgment to withstand direct attack, the record must establish strict compliance with the rules of civil procedure governing issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Authentic Brands Grp. LLC v. Porter, No. 14-16-00477-CV, 2017 WL 2960047, at *1 (Tex. App.-Houston [14th Dist.] July 11, 2017, no pet.) (mem. op.). There are no presumptions in favor of valid issuance, service, or return of citation. Primate Constr., 884 S.W.2d at 152. If the record does not affirmatively show strict compliance with the rules, the attempted service of process is invalid, the trial court has no personal jurisdiction over a defendant, and the judgment is void. See Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007); Porter, 2017 WL 2960047, at *1. Virtually any deviation from the statutory requisites for service of process will destroy a default judgment. Porter, 2017 WL 2960047, at *1; Marrot Commc'ns, 227 S.W.3d at 376.

         Texas law prefers personal service over substituted service. Vespa v. Nat'l Health Ins. Co., 98 S.W.3d 749, 751 (Tex. App.-Fort Worth 2003, no pet.); Mylonas v. Tex. Commerce Bank-Westwood, 678 S.W.2d 519, 522 (Tex. App.- Houston [14th Dist.] 1984, no writ) (noting substituted service is "not the preferred method"). When the plaintiff uses substituted service, Texas law places a burden on the plaintiff to prove that he or she served the defendant in the manner required by the applicable rule. See Vespa, 98 S.W.3d at 752.

         Texas Rule of Civil Procedure 106 authorizes a court to order a substituted method of service. Tex.R.Civ.P. 106(b)(2). "Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court." Tex.R.Civ.P. 107(f). When a trial court orders substituted service under Rule 106, the only authority for the substituted service is the order itself. Vespa, 98 S.W.3d at 752; see also Date v. RSL Funding, LLC, No. 01-12-00697-CV, 2013 WL 2146718, at *2 (Tex. App.-Houston [1st Dist.] May 16, 2013, no pet.) (mem. op.). As a result, any deviation from the trial court's order necessitates a reversal of the default judgment based on service. Vespa, 98 S.W.3d at 752; see also Date, 2013 WL 2146718, at *2.

         Caroline served Joyce via substituted service under Rule 106, and thus she was required to follow the trial court's instructions precisely. See Vespa, 98 S.W.3d at 752. The trial court required the citation and petition to be left with anyone over sixteen years old or to be affixed on the front door at an address located on the street named "Cambrian Park" in Sugar Land, Texas. In the Affidavit of Service, the process server states that he served the citation and petition by affixing the documents to the front door at an address located on the street named "Cambrian Court" in Sugar Land.

         The return of service is prima facie evidence of how service was performed. Id. Joyce argues, among other things, that Caroline failed to prove that she strictly complied with the trial court's substituted service order because the Affidavit of Service does not reflect that Joyce was served at Cambrian Park, as required in the order. Caroline argues that (1) substituted service was perfected as long as Joyce was served at her usual place of abode, even if the address in the substituted service order was inaccurate; (2) Cambrian Park and Cambrian Court are the same street; and (3) the process server's use of a "short form" of the address was harmless.[7] We address each of these arguments.

         1. Was Substituted Service Completed Properly at Joyce's Usual Place of Abode?

         Caroline contends that because the address in the process server's Affidavit in Support of Motion for Alternate Service-in which the process server attested Joyce's "usual place of business, usual place of abode, or other place where [Joyce] can probably be found" is at the Cambrian Court address-matches the address in the Affidavit of Service, Caroline has completed substituted service properly under Rule 106. However, the cases Caroline cites in support of this argument do not address the situation presented here in which the address in the Affidavit of Service does not match the address in the order for substituted service.[8] Here, the trial court did not order Joyce to be served "at the location specified in [the] affidavit" supporting the motion for substituted service. See Tex. R. Civ. P. 106(b). The court specified the address to be Cambrian Park.[9] As discussed, Caroline was required to show that she strictly complied with the trial court's instructions in the substituted service order. See Vespa, 98 S.W.3d at 752; see also Sanchez v. R.S. Concrete, L.L.C., No. 01-17-00191-CV, 2018 WL 1056484, at *4 (Tex. App.-Houston [1st Dist.] Feb. 27, 2018, no pet. h.) (mem. op.).

         Caroline similarly argues that the substituted service was perfected when Joyce was served at her "usual place of abode, " citing Pratt v. Moore, 746 S.W.2d 486, 488 (Tex. App.-Dallas 1988, no writ) ("Neither Rule 106, Texas Rules of Civil Procedure, nor case law requires an order for substituted service to have an accurate address in the order for substituted service."). In Pratt, the return of citation included the word "Drive, " and the order for substituted service did not. Id. at 487-88. Our sister court held that "the statement of the address is not necessary so long as the usual place of abode is the place where service is made." Id. at 488. However, Pratt was decided under a previous version of Rule 107, which governs the return of service. The current version, applicable to this appeal, requires certain information to be included in the return of service, including "the address served." Tex.R.Civ.P. 107(b)(6). Prior to the amendment, the rule required only that the return of service include "when the citation was served and the manner of service." Supreme Court Order of December 12, 2011, Misc. Docket No. 11-9250 (available at www.txcourts.gov ...


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