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Jackson v. Cain-Stegemoller

Court of Appeals of Texas, Fourteenth District

August 8, 2019

CYNTHIA JACKSON, Appellant
v.
CANDACE CAIN-STEGEMOLLER, INDIVIDUALLY AND AS NEXT FRIEND OF MINOR CHILD K.S., Appellee

          On Appeal from the 21st District Court Washington County, Texas Trial Court Cause No. 36060

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          KEN WISE JUSTICE

         In this 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.

         Accordingly, we reverse the trial court's default judgment and remand for further proceedings.

         I. Legal Principles

         To 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).

         If a 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).

         The 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.").

         II. ...


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