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Spanton v. Bellah

Court of Appeals of Texas, Third District, Austin

August 27, 2019

Matthew M. Spanton and Elisha Spanton d/b/a Hill Country Kennels, Appellants
v.
Pamela S. Bellah, Appellee

          FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-001821, THE HONORABLE TIM SULAK, JUDGE PRESIDING.

          Before Justices Goodwin, Baker, and Triana

          MEMORANDUM OPINION

          Thomas J. Baker, Justice.

         Matthew 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 the judgment.

         BACKGROUND

         The 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.

         Bellah 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 certified mail.

         After 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 defective.

         DISCUSSION

         A 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] proceeding.").

         A 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).

         On 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.).

         Bellah 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 ...

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