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Daigrepont v. Preuss

Court of Appeals of Texas, Fifth District, Dallas

May 17, 2019

DANIEL DAIGREPONT, Appellant
v.
HOLLY PREUSS, Appellee

          On Appeal from the 345th District Court Travis County, Texas Trial Court Cause No. D-1-GN-17-004975

          Before Justices Bridges, Brown, and Nowell

          MEMORANDUM OPINION [1]

          DAVID L. BRIDGES JUSTICE

         This restricted appeal arises from a no-answer default judgment granted in favor of appellee Holly Preuss. Appellant Daniel Daigrepont argues Preuss failed to properly execute substituted service of process; therefore, the trial court never acquired personal jurisdiction over him to grant a default judgment. Because the face of the record demonstrates service of process was defective, we reverse the trial court's default judgment and remand the case for a new trial.

         Background

         On September 8, 2017, Preuss filed an original petition alleging (1) assault by infliction of bodily injury, (2) assault by threat of bodily injury, and (3) assault by offensive physical contact against Daigrepont. She sought compensatory and punitive damages for more than $200, 000 but less than or equal to $1, 000, 000.

         On December 1, 2017, Preuss filed a motion for substituted service after reasonable attempts to serve Daigrepont pursuant to Texas Rule of Civil Procedure 106(a)(1) were unsuccessful. According to the affidavit in support of substituted service, Preuss attempted service on six different occasions but Daigrepont was never home. Daigrepont called the process server on October 21, 2017 and confirmed his address at 1117 Oyster Creek, Buda, Texas 78610. The process server attempted three more times to serve Daigrepont. Thereafter, Preuss sought substituted service.

         On December 7, 2017, the trial court signed an order granting Preuss's motion for substituted service. The order provided in relevant part:

[S]ervice of citation may be made on Defendant Daigrepont on or before the thirtieth (30) day from the date of this order, by leaving a copy of the Citation, First Amended Petition, initial discovery requests, and this Order attached with any person over the age of 16 at her [sic] residence, or by leaving the same on the front door of Defendant Daigrepont's residence.
IT IS FURTHER ORDERED that the service made by the above method shall not be deemed perfected unless it complies with the following provisions:
a. A copy of the Citation, Petition, initial discovery requests, and this order shall be mailed by BOTH certified mail, return receipt requested, AND by regular mail to the Defendant at the same address at which service is authorized above;
b. The return of service shall include a statement stetting [sic] out the date of mailing and the result of the mailing by certified mail, and the date of mailing and result of the same by regular mail (i.e. whether the envelope was returned by the post office, the green card was returned signed, etc.).

         A February 2, 2018 affidavit of service filed with the trial court indicates that on January 5, 2018, the process server delivered documents to Daigrepont by "posting CITATION, PLAINTIFF'S ORIGINAL PETITION, CIVIL CASE INFORMATION SHEET, ORD[ER] GRANTING PLAINTIFF'S MOTION FOR SUBSTITUTED SERVICE to the front entrance of the subject's usua[l] place of abode per the attached signed order authorizing alternate service."

         A second February 2, 2018, affidavit of service indicates "CITATION, PLAINTIFF'S ORIGINAL PETITION, CIVIL CASE INFORMATION SHEET, ORDER GRANTING PLAINTIFF'S MOTION FOR SUBSTITUTED SERVICE" was sent via regular mail and certified mail return receipt requested to Daigrepont's home address in Buda, Texas. Affiant further stated that as of ...


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