Appeal from the 21st District Court Washington County, Texas
Trial Court Cause No. 36060
consists of Justices Wise, Zimmerer, and Spain.
restricted appeal, appellant challenges the trial court's
rendition of a no-answer default judgment. Among other
arguments, appellant contends that the trial court
erroneously authorized substituted service at an address
known to be incomplete because the address was not the full
address identified in the affidavit filed in support of
appellee's motion for substituted service. We agree.
we reverse the trial court's default judgment and remand
for further proceedings.
prevail in a restricted appeal, the appellant must establish,
among other things not at issue in this appeal, that error is
apparent on the face of the record. Alexander v.
Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
In a restricted appeal from a no-answer default judgment,
error is apparent on the face of the record if the trial
court lacked jurisdiction over the defendant due to
inadequate service of process. See McKanna v. Edgar,
388 S.W.2d 927, 928-29 (Tex. 1965).
defendant has not answered a lawsuit, a trial court acquires
jurisdiction over the defendant solely on proof of proper
service. Furst v. Smith, 176 S.W.3d 864, 868 (Tex.
App.-Houston [1st Dist.] 2005, no pet.) (citing Wilson v.
Dunn, 800 S.W.2d 833, 836 (Tex. 1990)). A default
judgment cannot withstand a direct attack by a defendant who
complains that she was not served in strict compliance with
applicable requirements. Wilson, 800 S.W.2d at 836.
There is no presumption in favor of valid issuance, service,
and return of citation. Id. Strict compliance with
the rules for service must affirmatively appear on the record
for a default judgment to withstand direct attack.
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152
(Tex. 1994) (per curiam).
rule for substituted service provides as follows:
(b) Upon motion supported by affidavit stating the location
of the defendant's usual place of business or usual
place of abode or other place where the defendant can
probably be found and stating specifically the facts
showing that service has been attempted under either (a)(1)
or (a)(2) at the location named in such affidavit but has
not been successful, 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. Generally, we review de novo the trial
court's authorization of substituted service and the
rendering of a default judgment based on such service.
See Furst, 176 S.W.3d at 869-70; see also Nelson
v. Nelson, No. 14-16-00602-CV, 2017 WL 2484378, at *2
(Tex. App.-Houston [14th Dist.] June 8, 2017, no pet.) (mem.
op.) ("Whether service strictly complies with the rules
is a question of law that we review de novo.").