Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Cause No. 16-DCV-230794
consists of Justices Boyce, Jamison, and Brown.
HILL JAMISON JUSTICE
a tale of three street names. Caroline Creaven sued her
mother Joyce Creaven for allegedly improperly withdrawing
funds from Caroline's college fund. 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. Concluding that Caroline failed to create
a record reflecting that she served Joyce at the correct
address, we reverse and remand.
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. 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
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. 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. 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).
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.
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.
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.
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.
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. We address each of these arguments.
Was Substituted Service Completed Properly at Joyce's
Usual Place of Abode?
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. 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. 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.).
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