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Roberts v. Fargason

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 18, 2019

ROY SHANNON ROBERTS, Appellant,
v.
GAIL G. FARGASON, Appellee.

          On appeal from the County Court at Law No. 2 of Montgomery County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes

          MEMORANDUM OPINION

          GREGORY T. PERKES JUSTICE

         Appellant, Roy Shannon Roberts, appeals a summary judgment rendered in favor of appellee, Gail G. Fargason. By two issues, Roberts argues that summary judgment was erroneous because: (1) substituted service on Roberts was defective as a matter of law; and (2) Roberts was never served notice of the summary judgment hearing. We affirm.

         I. Background[1]

         In June 2015, Fargason entered into a contract with Roberts for Roberts to perform construction work for Fargason.[2] The contract price was $83, 900 to be paid in four installments, including a 30% down-payment which Fargason paid on June 30, 2015 in the amount of $25, 170.

         Shortly after paying Roberts the down payment, Fargason attempted to reach Roberts on numerous occasions regarding conflicting contract terms, but Roberts did not respond to any communication attempts. Fargason then sent Roberts a demand letter to the address Roberts listed on the contract via certified mail, regular first-class mail, and electronically to two e-mail addresses that Roberts had previously used to communicate with Fargason.[3] Roberts did not respond to the demand letter.

         On March 22, 2016, Fargason sued Roberts to recover her down-payment. She requested that citation issue for service at Robert's residence "or any place where he may be found." As proof of Roberts's residential address, Fargason submitted an affidavit stating her research revealed that Roberts registered a vehicle to his residential address one year prior to suit.[4] Fargason hired a process server to serve Roberts at his residence. The process server made four unsuccessful attempts to serve Roberts and left his contact information tagged on the door each time he attempted service. [5]Additionally, the process server attempted to serve Roberts at a different business for which Roberts was listed as the registered agent, but he was unsuccessful.

         On June 24, 2016, Fargason filed a motion for substituted service on Roberts, supported by affidavits of Fargason's counsel and the process server in which they asserted that Roberts was evading service. The trial court granted the motion and ordered that Fargason serve Roberts by a manner that the evidence showed to "be reasonably effective to give the defendant notice of the suit." See Tex. R. Civ. P. 106(b)(2). The court ordered that Fargason serve Roberts by: (1) mailing the citation and copy of the petition by both first-class and certified mail to Roberts's residence; (2) mailing them by both first-class and certified mail to the address listed on the contract; and (3) sending them to both e-mail addresses that Roberts had previously used to communicate with Fargason. According to the return of service, Roberts was served on August 4, 2016 at 4:40 p.m. in accordance with the trial court's order.

         On October 12, 2016, two months after substituted service, Fargason filed a motion for default judgment and served Roberts in the same manner as above. The default motion contained a non-military affidavit in which Fargason's counsel testified that she did not have a social security number or date of birth for Roberts, which prevented her from verifying that Roberts was not in the military, though she had no facts or information to suggest that Roberts was serving in the military.[6] Consequently, on October 17, 2016, the trial court appointed an attorney ad litem on behalf of Roberts. See 50 U.S.C.A. § 3931 (West, Westlaw through Pub. 116-5) ("[If . . . it appears that the defendant is in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant." See 50 U.S.C.A. § 3931(b)(2) (West, Westlaw through 2017 1st C.S.). No order was entered on the motion for default judgment. On November 2, 2016 the ad litem appeared on behalf of Roberts and filed an answer denying each and every allegation in Fargason's petition.

         On March 10, 2017, Fargason filed a traditional motion for summary judgment on her claims, along with a notice setting a hearing for March 31, 2017. Fargason served the ad litem with the same. On March 29, the ad litem filed a report stating he reviewed copies of the documents on file, corresponded with Fargason's counsel, filed an answer on November 2, 2016, but was unsuccessful in his efforts to reach Roberts. On March 31, 2017, the trial court granted Fargason's motion for summary judgment and awarded her $25, 170.00 in damages plus $4, 740.00 in attorney's fees.

         On April 27, 2017, a retained attorney appeared on behalf of Roberts and filed a motion for new trial asserting that citation was defective, that Roberts was unaware of the pending litigation until after the judgment was signed, and that Roberts had a meritorious defense. After considering Roberts's motion and Fargason's response, the trial court denied Roberts's motion for new trial. This appeal followed.

         II. Service of Process

         By his first issue, Roberts claims the trial court erred in granting summary judgment in favor of Fargason because "substituted service on Roberts was defective as a matter of law." According to Roberts, "while the court's final judgment was not labeled a 'default judgment[, ]' the court's granting of summary judgment served as a default judgment" and "there is no ...


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