Court of Appeals of Texas, Third District, Austin
Matthew M. Spanton and Elisha Spanton d/b/a Hill Country Kennels, Appellants
Pamela S. Bellah, Appellee
THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-001821, THE HONORABLE TIM SULAK, JUDGE PRESIDING.
Justices Goodwin, Baker, and Triana
J. Baker, Justice.
M. Spanton and Elisha Spanton d/b/a Hill Country Kennels
filed a restricted appeal from a default judgment rendered in
Pamela S. Bellah's favor. The Spantons contend that the
default judgment is void for lack of personal jurisdiction
over them due to defective service of process. We will affirm
Spantons operate Hill Country Kennels raising and selling
Presa Canario dogs. While Bellah was working at the kennel,
one of the dogs bit her. Bellah alleged that she had
requested that the Spantons provide her with muzzles for the
dogs but that they refused to do so and, as a result, she was
seriously injured. Bellah sued the Spantons and made several
unsuccessful attempts to serve them personally at a residence
in Dripping Springs, Texas.
then filed a motion for substituted service seeking an order
authorizing her to serve the Spantons by first class and
certified mail, return receipt requested, and also by
attaching a copy of the citation and petition to the gate
surrounding the residence. The trial court signed an order
authorizing substituted service "by first class mail and
certified mail, return receipt requested as well as by
attaching the citation and Plaintiff's Original Petition
to the gate surrounding defendants' residence located at
504 Heathers Hill Dr., Dripping Springs, TX 78620." The
return of service states that substituted service was
executed on Elisha Spanton and Matthew Spanton at "504
Heather Hills Drive, Dripping Springs, Texas 78620" by
"posting a copy to the front gate" and by sending a
copy of the citation and petition by first class and
the Spantons failed to timely file answers, Bellah obtained a
default judgment against them. The Spantons filed notice of a
restricted appeal seeking to vacate the default judgment on
the ground that service of process on each of them was
restricted appeal constitutes a direct attack on a default
judgment. Tex.R.App.P. 30; General Elec. Co. v. Falcon
Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943
(Tex. 1991). As the party filing a restricted appeal, the
Spantons must show that: (1) they brought the appeal within
six months after the trial court signed the judgment; (2)
they were parties to the suit; (3) they did not participate
in the hearing that resulted in the complained-of judgment
and did not timely file any postjudgment motions or requests
for findings of fact and conclusions of law; and (4) error is
apparent from the face of the record. See Tex. R.
App. P. 26.1(c), 30; Alexander v. Lynda's
Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the
fourth element, whether error is apparent from the face of
the record, is in dispute here. The record, for purposes of a
restricted appeal, consists of the clerk's record and the
reporter's record if one was made, and it includes any
evidence presented to the trial court before final judgment.
See Norman Commc'ns v. Texas Eastman Co., 955
S.W.2d 269, 270 (Tex. 1997) (per curiam); General
Elec., 811 S.W.2d at 944 ("The rule has long been
that evidence not before the trial court prior to final
judgment may not be considered in a [restricted appeal]
plaintiff may take a default judgment against the defendant
if the defendant has not previously answered as long as the
citation and return of service have been on file with the
clerk for 10 days. Tex.R.Civ.P. 107, 239. A no-answer default
judgment is properly granted if (1) the plaintiff files a
petition that states a cause of action, (2) the petition
invokes the trial court's jurisdiction, (3) the petition
gives fair notice to the defendant, and (4) the petition does
not disclose any invalidity of the claim on its face.
Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d
491, 494 (Tex. 1988). A no-answer default results in the
defaulting defendant's admission of all facts properly
pleaded in the petition, except for the amount of
unliquidated damages. Dolgencorp of Tex., Inc. v.
Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam).
Thus, if the facts set out in the petition allege a cause of
action, the default judgment conclusively establishes the
defendant's liability. Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 731 (Tex. 1984).
appeal, the Spantons challenge the district court's
jurisdiction over them, asserting that the substituted
service ordered by the court was defective. In a restricted
appeal, defective service of process constitutes error on the
face of the record. Primate Constr., Inc. v. Silver,
884 S.W.2d 151, 153 (Tex. 1994) (per curiam). Strict
compliance with the procedural rules governing citation and
return of service must affirmatively appear on the record if
the default judgment is to withstand direct attack.
Id. at 152; see also Tex. R. Civ. P. 99,
103, 105, 106, 107. When reviewing a default judgment, we
make no presumptions in favor of valid issuance, service, and
return of citation. Primate Constr., 884 S.W.2d at
152. Whether service strictly complied with the rules is a
question of law that we review de novo. Furst v.
Smith, 176 S.W.3d 864, 868-70 (Tex. App.-Houston [1st
Dist.] 2005, no pet.).
filed a motion for substituted service after several failed
attempts to serve the Spantons in person. Rule 106(b) governs
substituted service. See Tex. R. Civ. P. 106(b).
Rule 106(b) provides:
Upon motion supported by affidavit stating the location of
the defendant's usual place of business or 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) [personal service] or (a)(2)
[registered or certified mail] at the location ...