Court of Appeals of Texas, Second District, Fort Worth
THE 90TH DISTRICT COURT OF YOUNG COUNTY TRIAL COURT NO. 32309
SUDDERTH CHIEF JUSTICE
Mother and Appellee Father have a child, E.D. In August 2014,
finding that it was not in E.D.'s best interest to
appoint Mother and Father as joint managing conservators, the
trial court entered an order that named Mother as the
managing conservator with the right to designate E.D.'s
primary residence, and ordered Father to pay child support.
See Tex. Fam. Code Ann. § 153.132 (West 2014).
The trial court also found that Father had a history or
pattern of family violence and that, as a result, awarding
him access to E.D. would endanger E.D.'s physical health
or emotional welfare. See id. § 153.004(d)
(West Supp. 2017).
than two years later, the provisions for conservatorship and
visitation took a 180-degree turn. The trial court not only
appointed Father as sole managing conservator but also
restricted Mother's access to E.D. to six supervised
hours of visitation each month. Though the trial court record
before us is replete with errors, we are nevertheless
hamstrung by applicable legal rules and principles to dismiss
November 17, 2015, Father petitioned to modify the August
2014 order and sought appointment as a joint managing
conservator and the imposition of a standard possession
order. See id. § 156.101 (West 2014). On
February 29, 2016, Father filed a "Motion for
Substituted Service" alleging that his attempts to
personally serve Mother at her last known address had been
unsuccessful and requesting the trial court to permit
alternate service under rule 106(b) by delivering the
citation and petition to the maternal grandfather.
See Tex. R. Civ. P. 106(b) (authorizing the trial
court to allow alternate means of service). According to his
attached affidavit, process server Matt Pruitt averred that
he had made three unsuccessful attempts to personally serve
Mother but had also spoken to the maternal grandfather, who
had assured Pruitt that if he was served with the citation,
he would deliver it to Mother. Although the motion did not
comply with the requisites of rule 106(b)-by failing to state
the location of Mother's "usual place of business or
usual place of abode or other place where [she could]
probably be found"-the trial court nonetheless signed an
"Order for Substituted Service" granting the motion
and ordering the citation to be served by delivering it to
the maternal grandfather.
the trial court's signature on the order granting
substituted service is curiously dated February 23, 2016,
even though the motion for substituted service was not filed
until almost a week later, on February 29. And, although the
order is dated February 23, it bears a filemark of February
29 and a time stamp of 9:35 a.m., exactly one minute after
the motion's time stamp of 9:34 a.m.
April 29, 2016, the trial court entered an order finding that
Mother, "although duly and properly cited, did not
appear and wholly made default" and granted the
modification sought by Father. The trial court's order
gave Father the relief he had pleaded for-it appointed Mother
and Father joint managing conservators, awarded Father the
exclusive right to designate E.D.'s primary residence,
imposed a standard possession order, and ordered Mother to
pay child support. See Tex. Fam. Code Ann.
§§ 153.134, 153.312 (West 2014).
on June 6, 2016, the trial court entered a judgment nunc pro
tunc amending the prior judgment by appointing Father as the
sole managing conservator and Mother as the sole possessory
conservator. Id. §§ 153.132, 153.192 (West
2014) (addressing rights and responsibilities of a sole
managing conservator and a possessory conservator,
respectively). The trial court's nunc pro tunc judgment
was problematic in two ways. First, in contradiction to
Tex.R.Civ.P. 316, which allows only the correction of
clerical mistakes in the judgment, it corrected a
substantive (purported) "mistake" in the judgment,
not a clerical one. Second, it granted more relief than
Father's petition requested. See Simon v. BancTexas
Quorum, N.A., 754 S.W.2d 283, 286 (Tex. App.-Dallas
1988, writ denied) (citing Mullen v. Roberts, 423
S.W.2d 576, 579 (Tex. 1968), for the proposition that "a
default judgment must accord with the pleadings").
Unfortunately, while both of these errors arguably
constituted error on the face of the record, Mother did not
pursue the remedy of restricted appeal. See Tex. R.
App. P. 26.1(c), 30.
even further relief beyond Father's pleadings, the nunc
pro tunc order also restricted Mother's access to E.D. to
six supervised hours on the first Saturday of each month.
And, the nunc pro tunc judgment also reiterated that Mother
had defaulted after being properly cited to appear.
August 11, 2016, Mother filed a motion to set aside the
default judgment and for a new trial. In it, Mother asserted
that she was never properly served, that the Pruitt affidavit
did not comply with statutory requirements, and that she did
not learn about the case until the local sheriff "showed
up at [her] house on June 18, 2016, to remove [E.D.] from
Father's response he argued that Mother's motion was
untimely because it was filed more than 30 days after the
nunc pro tunc judgment was signed. See Tex. R. Civ.
P. 329b(a). Mother argued that her motion was timely because
it was filed within two years of the nunc pro tunc judgment.
See Tex. R. Civ. P. 329. After conducting a hearing
on the matter, the trial court denied Mother's motion by
letter ruling dated October 18, 2016, in which the trial
court found that her motion was not timely filed. On appeal
Mother challenges the trial court's order signed three
days later that dismissed her motion for new trial as
general rule, the deadline for a party to file a motion for
new trial is 30 days after the date the judgment is signed.
Tex.R.Civ.P. 329b(a). This 30-day deadline is modified in
certain situations, one of which is when service has been
authorized through citation by publication. Tex.R.Civ.P. 109,
lawsuits must be properly served upon the defendant.
See Tex. R. Civ. P. 99. Most often, service is
effectuated through the personal delivery of a clerk-issued
citation and a copy of the petition by a sheriff, constable,
process server, or individual who is not a party to the suit.
Tex.R.Civ.P. 103, 106(a). But sometimes, as appears to have
been the case here, attempts at personal service are
unsuccessful, whether because the defendant has purposely
avoided service or because the defendant cannot be located.
In those situations, the rules of civil procedure provide for
alternative means of service, three of which are at issue
here: rules 106, 109, and 109a.
106(b) provides that the party seeking service may submit a
motion to the court supported by an affidavit that states (1)
the location of the defendant's usual place of business
or abode or another place where the defendant can probably be
found and (2) facts showing that either personal service or
service through certified mail was attempted but
unsuccessful. Tex.R.Civ.P. 106(b). Upon receipt of such a
motion and affidavit,
the court may authorize service (1) by leaving a true copy of
the citation, with a copy of the petition attached, with
anyone over sixteen years of age at the location specified in
such affidavit, or (2) in any other manner that the affidavit
or other evidence before the court shows will be reasonably
effective to give the defendant notice of the suit.
Tex. R. Civ. P. 106(b).
by publication is another alternative. Tex.R.Civ.P. 109.
Generally, service by publication is conducted through the
placement of a small notice published in the classified
section of a local newspaper. In re E.R., 385 S.W.3d
552, 558 (Tex. 2012). But serving citation by publication is
"a last resort, " restricted to situations in which
a defendant's identity or location is unknown.
Id. at 560-61 ("[W]hen a defendant's
identity is known, service by publication is generally
order to obtain citation by publication, a party, his agent,
or his attorney must swear under oath that (1) the
defendant's residence is unknown to the plaintiff or his
attorney, (2) the defendant is a transient person and has not
been located, or (3) the defendant is absent from or a
nonresident of Texas and citation has been unsuccessfully
attempted through personal service. Tex.R.Civ.P. 109. Upon
presentation of such an oath, the clerk-not the trial
court-is required to authorize citation for service by
publication. Id. If a defendant is served by
publication, only later-prior to granting a default judgment
for the plaintiff-will the trial court consider the adequacy
of service by publication by reviewing the sufficiency of the
diligence exercised in attempting to ascertain the residence
or whereabouts of the defendant. Id.
circumstances where citation by publication is warranted, a
party may nevertheless elect another form of substituted
service. See Tex. R. Civ. P. 109a. Pursuant to rule
109a, "[w]henever citation by publication is authorized,
the court may, on motion, prescribe a different method of
substituted service, if the court finds, and so recites in
its order, that the method so prescribed would be as likely
as publication to give the defendant actual notice."
Id. A 109a order authorizing a method of substituted
service other than publication could authorize service by the
very same method as a 106 order authorizing substituted
service. See Elam v. Armstrong, No. 03-07-00565-CV,
2008 WL 3539968, at *2 (Tex. App.-Austin 2008, no pet.) (mem.
op.) (noting that plaintiff received permission for 109a
substituted service to be effected by leaving a copy of the
citation and petition with anyone 16 years of age or older at
defendant's former residence); Isaac v. Westheimer
Colony Ass'n, Inc., 933 S.W.2d 588, 590 (Tex. App.-
Houston [1st Dist.] 1996, writ denied) (noting use of 109a
substituted service of citation and petition on
defendant's father). But the question of whether
substituted service was ordered under rule 106(b) or rule
109a is generally of no practical concern, as long as service
was accomplished as ordered.
here, whether substituted service was ordered under rule 106
or 109a is a critical question. Jurisdiction turns on the
answer, because when substituted service is ordered under
rule 109a, the deadline for filing a motion for new trial is
extended from 30 days to two years. Tex.R.Civ.P. 109a
(providing that rule 329 shall apply as if citation had been
served by publication), 329 (providing that the trial court
may grant a new trial upon petition showing good cause filed
within two years after the date the judgment was signed). And
here, Mother's motion to set aside the default judgment
and for a new trial was filed 66 days after the judgment nunc
pro tunc was signed. Thus, it was timely-subject to a
two-year, rather than 30-day, deadline-only if the trial
court ordered substituted service under rule 109a. To
determine which rule the trial court invoked here, we must
look at the motion requesting substituted service and the
order granting it.
urging us to hold that service was ordered under rule 109a,
Mother argues that because Father's motion did not comply
with rule 106(b), as discussed above, substituted service
could not have been properly ordered under that rule.
Although we agree that substituted service was not
properly issued under rule 106(b), for purposes of
our analysis that fact is irrelevant. Any complaint as to
defective service under rule 106(b) was subject to the 30-day
deadline for filing a motion for new trial, a deadline that
Mother did not meet.Because she failed to lodge a timely
challenge to any defects in service under rule 106, we focus
instead on whether the substituted service was ordered under
rule 109a because only if substituted service was ordered by
rule 109a would Mother's motion for new trial have been
timely filed, preserving her right to appeal here.
service under rule 109a cannot be ordered unless citation by
publication was authorized under rule 109. Tex.R.Civ.P. 109a
(providing that "[w]henever citation by publication is
authorized, the court may, on motion prescribe a different
method of substituted service" and when "the
defendant has not appeared, the . . . [two-year deadline]
shall apply"). Thus, we face two questions: whether
service by publication was authorized under rule 109 and, if
so, whether the trial court's order authorized
substituted service under 109a. The trial court had
jurisdiction to consider Mother's motion for new trial
only if the answer to both questions is "yes." But
based on the record here-especially considering the language
of the motion and the order itself-we must hold that the
answer to both questions is "no."
the first question, to trigger the two-year deadline, service
by publication must be "authorized." Id.
Rule 109 sets forth the requisites for authorization of
service of citation by publication, including that the party,