SERVICE OF CITATION, DEFAULT JUDGMENTS & REMEDIAL M EASURES Written and Presented by:

Stephen Orsinger

McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. 5950 Sherry Lane, Suite 800 Dallas, Texas 75225 (214) 273-2400 (telephone) (214) 273-2470 (facsimile) [email protected]

State Bar of Texas

38th Advanced Family Law Course August 6-9, 2012 Houston, Texas

CHAPTER 7

S TEPHEN O RSINGER C URRICULUM V ITAE C ONTACT Telephone Facebook

(214) 273-2400

Facsimile

http://goo.gl/lSZSK Google+

(214) 273-2470 http://goo.gl/aW lc6

E-mail [email protected]

B IOGRAPHY Born San Antonio, TX

1981

Education St. John’s College, Santa Fe, New Mexico University of Texas School of Law, Austin, Texas

Licensure State Bar of Texas

2003 2007 2007

Practice M cCurley, Orsinger, M cCurley, Nelson & Downing, LLP Awards Texas Super Lawyers Rising Star

2007 – present 2010, 2011, 2012

Committees Texas Family Law Foundation, Bill Review Com mittee M arriage Dissolution Institute, Planning Com mittee

2009, 2011 2012

ARTICLES & PRESENTATIONS • The Ethics of ADR Negotiation and Settlement Presented by Hon. Francis Harris Marriage Dissolution Institute, Galveston, 2008 http://goo.gl/ZXkfy • Effect of Choice of Entities: How Organizational Law, Accounting, and Tax Law for Entities Affect Marital Property Law Co-authored with Richard Orsinger & Patrice Ferguson Advanced Family Law Course, San Antonio, 2008 http://goo.gl/f4aNR • Trusts, Family Law, & the Contract-Property Dichotomy Authored, Co-presented with Harold C. Zuflacht Marriage Dissolution Institute, Fort W orth, 2009 http://goo.gl/d3CVE • Property Puzzles: 30 Characterization Rules, Explanations & Examples Co-authored with Richard Orsinger & Scott Downing Family Law on the Front Lines, San Antonio, 2009 Advanced Family Law Course, Dallas, 2009 http://goo.gl/xZHao • Family Law Legislative Update Co-presented with Katherine Kinser, JoAl Cannon Sheridan, & Charlie Hodges Dallas, 2009 • Practicing Family Law in a Depressed Economy - Part I: Your Law Practice and Your Clients Co-authored and co-presented with Richard Orsinger Advanced Family Law Course, Dallas, 2009 http://goo.gl/SN4gL

• Valuation: Approaches, Assets, and Authority Authored sections II-VII, Presented by Scott Downing, Thomas Ausley, Haran Levy, Chris Negem, & Hon. John Neill Advanced Family Law Course, San Antonio, 2010 http://goo.gl/fbNKf • Dealing with Business Entities Authored Appendices A & B, Co-presented with Cheryl W ilson and W arren Cole Advanced Family Law Course, San Antonio, 2011 http://goo.gl/p62HR • Discovery and Authentication of Electronically Stored Information Authored and Presented Advanced Family Law Course, San Antonio, 2011 http://goo.gl/HpELZ • Drafting Pre- and Post-Nuptial Agreements: Foreclosing Defenses and Employing Construction Authored and Presented Advanced Family Law Drafting Course, Dallas, 2011 http://goo.gl/8EgqE • The Intangible Assets of a Non-Existent Entity: Sole Proprietorships & Goodwill in a Texas Divorce Authored and Presented Marriage Dissolution Institute, Dallas, 2012 • Service of Citation, Default Judgments & Remedial Measures Authored and Presented Advanced Family Law Course, Houston, 2012

TABLE OF CONTENTS I. S ERVICE OF V ALID C ITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. B. C. D.

E. F. G. H.

I.

General Rules for Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Formal Requirements of Citation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Issuance and Delivery of Citation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Methods of Service of Citation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal Service – Direct Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Substituted Service – Address Known. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Substituted Service – Residence Unknown or Defendant Unavailable. . . . . . . . . . . . . . . . . . . . . . . . . . . Persons Who May Serve Citation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Location of Service of Citation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Return of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Challenges to Service of Citation before Default Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Burden of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Standard of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. “Presumption” of Valid Issuance, Service, and Return of Citation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Strict Construction of Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. “Strict Compliance” with Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Fatal Defects in Citation, Service, or Return. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Non-Fatal Defects in Citation, Service, or Return.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special Provisions for Service in Family Law Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Special Provisions for Dissolution Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Special Provisions for SAPCRs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 2 2 2 3 4 5 5 5 5 6 6 6 6 6 7 8 8 9

II. W AIVER OF S ERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Waiving Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Form of the Waiver of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 III. G ENERAL AND S PECIAL A PPEARANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. General Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Special Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. Form of the Waiver of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 IV. D EFAULT J UDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Waiving Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. Procedure for Seeking Default Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. Special Procedures for Default Judgments Involving Defendants Served by Publication.. . . . . . . . . . . . . . 12 V. R EMEDIAL M EASURES .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. General Standards for Challenging Default Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. No Presumption of Validity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Procedures for Challenging Default Judgments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Motion for New Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Direct Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Restricted Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Bill of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Effects of Reversal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12 13 13 13 14 14 15 16

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S ERVICE OF C ITATION, D EFAULT J UDGMENTS & R EMEDIAL M EASURES

I. S ERVICE OF V ALID C ITATION A trial court has “no more solemn judicial obligation than that of seeing that no litigant is unjustly saddled with a judgment in the absence of notice and a hearing.” 1 Thus, the underlying purpose of the rules governing citation and appearance is to ensure that a defendant has been notified that a lawsuit has been filed against them, which they must take some affirmative action to respond to, or risk a default judgment being entered against them. The trial court lacks in personam jurisdiction 2 over the defendant in a suit if the defendant:

A. General Rules for Service Upon filing suit, plaintiff has a duty to exercise reasonable diligence in perfecting service of process, and this duty is a continuing one.5 This responsibility extends to ensuring that service is properly reflected in the record, 6 and it continues until service of process is achieved.7 Whether or not the plaintiff has exercised due diligence is a question of fact, decided by the jury, or by the judge sitting without a jury. 8 However, due diligence may be determined to be lacking as a matter of law if no excuse is offered for a delay in procuring service of citation, or if that delay, coupled with plaintiff’s inaction, conclusively negates diligence.9 Service of citation is required for all original lawsuits, but new service of citation is only required for an amended petition if the nature of the cause of action has changed, and the defendant is not before the court. 10 However, a defendant who is in court by reason of having filed an answer is not entitled to service of new process after an amendment to plaintiff's petition, even if the amendment sets up a new cause of action.11

(1) was not properly served with valid citation; (2) did not sign a written memorandum of waiver of service; and (3) has not made a general appearance.3 Without such personal jurisdiction, the trial court may not enter a default judgment against the defendant.4 This paper addresses each of these three criteria, in varying degrees of detail, and explores the remedies available when they are not fulfilled.

5

1

Finlay v. Jones, 435 S.W.2d 136, 138-39 (Tex. 1968).

2

That is, “personal jurisdiction.”

Rotello v. Brazos County Water Control and Improvement, 511 S.W .2d 392, 395 (Tex. Civ. App.–Houston 1974, writ ref’d n.r.e.). 6

TAC Americas, Inc. v. Boothe, 94 S.W .3d 315, 321 (Tex. App.–Austin 2002, no pet.).

3

See Am. Universal Ins. Co. v. D.B. & B., Inc., 725 S.W .2d 764, 766 (Tex. App.–Corpus Christi 1987, writ ref'd n.r.e.); Marrot Commc'ns, Inc. v. Town & Country P'ship, 227 S.W .3d 372, 376 (Tex. App.–Houston [1st Dist.] 2007, pet. denied); In re Z.J.W., 185 S.W .3d 905, 906 (Tex. App.–Tyler 2006, no pet.) (“Proper citation and return of service are crucial to establishing personal jurisdiction.”) (citing TAC Americas, Inc. v. Boothe, 94 S.W .3d 315, 318-19 (Tex. App.–Austin 2002, no pet.)); see also Tex. R. Civ. P. 124.

7

Allen v. Rushing, 129 S.W.3d 226, 231 (Tex. App.–Texarkana 2004, no pet.). 8

Beavers v. Darling, 491 S.W .2d 711, 714 (Tex. Civ. App. –W aco 1973, no writ). 9

Harrell v. Alvarez, 46 S.W .3d 483, 485-86 (Tex. App.–El Paso 2001, no pet.). 10

4

Brown v. Brown, 521 S.W .2d 730, 732 (Tex. Civ. App.– Houston [14th Dist.] 1975, no writ).

Id. On the other hand, a court does not need personal service on a nonresident defendant to acquire in rem jurisdiction, such as a status adjudication of a divorce. See Ex parte Limoges, 526 S.W .2d 707, 708-09 (Tex. Civ. App.–Austin 1975, orig. proceeding).

11

Reyman v. Reyman, 308 S.W .2d 595, 597 (Tex. Civ. App.– W aco 1957, writ dism’d).

1

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D. Methods of Service of Citation B. Formal Requirements of Citation There are two basic methods of service: personal service by direct delivery to the defendant; and “substituted” service.17

Under the general rule for process, citations must: (1) be styled “The State of Texas”;

1. (2) directed to any sheriff or any constable within the State of Texas;

Personal Service – Direct Delivery

Personal service by direct delivery entails:

(3) be made returnable on the Monday following the twentieth day from the date the process is served;

(A1)

delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto;18 or

(A2)

mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.19

(4) be dated and attested by the clerk of the court with the court’s seal; and (5) include the date of issuance of the citation.12 C. Issuance and Delivery of Citation

Either method may be the primary means of service. Service on a defendant’s agent or attorney is not considered substituted service (and therefore need not abide by the affidavit requirement explained infra), but the defendant must specifically authorize that agent or attorney to accept service on their behalf for the court to acquire personal jurisdiction over the defendant.20 These same personal service rules under Rule 106 apply to service of a defendant who is absent from the state of Texas, or is not a resident of Texas.21

The term “issue” means more than mere clerical preparation, dating, and attestation, and includes the act of delivery to an officer or to someone for delivery to him for service.13 Process is not “issued” until it is sent forth from the clerk’s office under his sanction and authority and given to an officer, or to some one else to give to an officer, for the purpose of being served.14 The clerk does not complete its duties regarding issuing and delivering citation until it delivers the citation as directed.15 A party may ordinarily rely on the clerk to perform their duty within a reasonable time, but when a party learns – or by the exercise of diligence should have learned – that the clerk has failed to fulfill that duty, it is incumbent upon the party to ensure that the job is done.16

12

2.

Substituted Service – Address Known

Personal service by direct delivery is not always feasible, or not always successful. If attempts at personal service fail, a court may authorize a substituted method of service upon motion, supported by an affidavit which contains a statement of the defendant’s address, and an explication of the facts showing that service by one of the

Tex. R. Civ. P. 15.

13

Snell v. Knowles, 87 S.W .2d 871, 876 (Tex. Civ. App.– Texarkana 1935, writ dism’d w.o.j.).

17

See Tex. R. Civ. P. 106, 109, 109a.

18

Tex. R. Civ. P. 106(a)(1).

19

Tex. R. Civ. P. 106(a)(2).

20

Boyattia v. Hinojosa, 18 S.W .3d 729, 733-34 (Tex. App.– Dallas 2000, pet. denied); Tex. R. Civ. P. 99.

H. L. McRae Co. v. Hooker Const. Co., 579 S.W .2d 62, 64 (Tex. Civ. App.–Austin 1979, no writ); Sindorf v. Cen-Tex Supply Co., 172 S.W .2d 775, 776 (Tex. Civ. App.–El Paso 1943, no writ); Neal v. Roberts, 445 S.W .2d 58, 60 (Tex. Civ. App.–Houston [1st Dist.] 1969, no writ).

16

21

14

Id. at 876-77.

15

Id. at 734.

2

Tex. R. Civ. P. 108.

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two direct delivery methods has been unsuccessful.22 The court may then authorize service: (B1)

(B2)

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; 23 or

3.

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.24

There are two types of substituted service available when the defendant’s residence is not known, the defendant has no address, or cannot be found:

One of the “other manners” commonly used to effectuate service when direct delivery fails (perhaps by the defendant evading service) is affixing the citation to the front door of the address at which the defendant resides.25 Another is service by first class – as opposed to certified – mail.26 A plaintiff need not attempt every method of service permitted by Rule 106(a) and (b)(1) before seeking an alternative method under Rule 106(b)(2).27

Tex. R. Civ. P. 106(b). Facts necessary to justify substituted service must show the impracticality of both personal service and mailing the citation using registered or certified mail. Harrison v. Dallas Court Reporting College, Inc., 589 S.W .2d 813, 815 (Tex. Civ. App.–Dallas 1979, no writ). Stated another way, if personal service of process can be effected by the exercise of reasonable diligence, then substituted service is not a viable alternative. Nichols v. Wheeler, 304 S.W .2d 229, 234 (Tex. Civ. App.–Austin 1957, writ ref’d n.r.e.). Tex. R. Civ. P. 106(b)(1).

24

Tex. R. Civ. P. 106(b)(2).

(C1)

service by publication;28 and

(C2)

service by some other means as likely as publication to give defendant actual notice of suit.29

Notice of the nature of the suit – even if brief – is essential to valid citation by publication.30 The request for service by publication must be supported by an affidavit of the plaintiff, their agent or their attorney, explaining why other methods of service have not been successful,31 and demonstrating that they exercised due diligence to locate and serve the defendant by other means. 32 The court has a mandatory duty to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant before permitting service by publication.33

22

23

Substituted Service – Residence Unknown or Defendant Unavailable

25

See, e.g., Auten v. DJ Clark, Inc., 209 S.W .3d 695, 700 (Tex. App.–Houston [14th Dist.] 2006, no pet.). But beware: if an order permits citation and petition to be posted to defendant’s front door, but the return only recites “*POSTED TO FRONT DOOR*,” and does not indicate what was posted to the front door, service is fatally defective. Dolly v. Aethos Commc’ns Systems, Inc., 10 S.W .3d 384, 389-90 (Tex. App.–Dallas 2000, no pet.).

28

Tex. R. Civ. P. 109.

29

Tex. R. Civ. P. 109a.

30

Wiebusch v. Wiebusch, 636 S.W .2d 540, 541-42 (Tex. App.–San Antonio 1982, no writ). 31

The affidavit must also include one of four averments: (1) the defendant’s address is not known; (2) the defendant is a transient person; (3) the defendant is absent from Texas; or (4) defendant does not reside in Texas. Wood v. Brown, 819 S.W.2d 799, 800 (Tex. 1991).

26

See, e.g., State Farm Fire and Casualty Co. v. Costley, 868 S.W.2d 298, 299 (Tex.1993).

32

Tex. R. Civ. P. 109; In re Marriage of Peace, 631 S.W .2d 790, 792 (Tex. App.–Amarillo 1982, no writ) (“[Petitioner] is required to establish that [Respondent]’s residence is unknown to him and that, after due diligence, he has been unable to locate her whereabouts.”).

27

Hubicki v. Festina, 156 S.W .3d 897, 904 (Tex. App.–Dallas 2005), rev’d on other grounds, 226 S.W.3d 405 (Tex. 2007). The Supreme Court’s reversal was based on the conclusion that the specific method of alternative service the trial court authorized was not reasonably effective to give the defendant notice of the suit. Id. at 407-09.

33

3

Id.

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The court’s order authorizing service by publication must also prescribe the period and designate the paper in which the publication is to be made. 34 Almost invariably, the citation is published in a periodical, usually a newspaper, in a location that is reasonably calculated to apprise the defendant of the suit and afford them an opportunity to respond. 35 The location of that periodical may sometimes be the county where suit was filed, and not necessarily the last known place where the defendant lived.36 When the criteria for service by publication have been fulfilled, the court is authorized to permit any other means of service that would be as likely as publication to give the defendant actual notice of the suit.37

Service of process by a private process server as opposed to a sheriff or constable, requires authorization by law or a written order of the court. 41 If a person is authorized by a Texas court order to serve process in Texas, the person has been authorized to serve process in accordance with the laws of the State of Texas.42 In a juvenile suit, however, the juvenile court has discretion to determine who is a suitable person to serve a summons on the juvenile.43 Only a sheriff or constable may serve a citation of a writ that requires the actual taking of possession of a person, 44 property or thing. If the method of service is by registered or certified mail, or by publication, service may be made directly by the clerk of the court in which the case is pending.45 A person who is a party to the suit, or interested in the outcome of a suit, may not serve any process in that suit.46 Examples of people who have an interest in the outcome of a suit are the plaintiff’s attorney and legal secretary,47 or any other person who may have a pecuniary interest that may be affected by the prosecution of the suit. 48 However, the fact that a person may be called as a witness by a party, and may thereafter testify, does not make him an interested party in the outcome of the suit.49

E. Persons Who May Serve Citation Citation 38 may be served by: (1) any sheriff or constable or other person authorized by law; (2) any person authorized by law or by written order of the court who is not less than eighteen years of age; 39 or (3) any person certified under order of the Supreme Court. 40

34

O'Boyle v. Bevil, 259 F.2d 506, 512 n. 6 (5th Cir. 1958) (interpreting Texas Rules of Procedure). 35

Peace, 631 S.W .2d at 794 (citation published in newspaper servicing marital residence in Parmer County, Texas, was insufficient to notify W ife of pending divorce action when Husband knew W ife was living somewhere in Mexico).

41

Mayfield, 894 S.W .2d at 505.

42

Id.

36

In re A.Y., 16 S.W .3d 387, 389 (Tex. App.–El Paso 2000, no pet.); but see note 35, supra. 37

43

P.G., A. Juvenile v. State of Texas, 616 S.W .2d 635, 638 (Tex. Civ. App.–San Antonio 1981, writ ref'd n.r.e.).

Tex. R. Civ. P. 109a. 44

Such as a writ of attachment of a child.

45

Tex. R. Civ. P. 103.

38

The same rules for service of citation govern service of process and other notices, writs, orders, and papers issued by the court. Tex. R. Civ. P. 15, 103.

46

Id.

39

Such as a professional process server. See Mayfield v. Dean Witter Fin. Servs., 894 S.W .2d 502, 505 (Tex. App.–Austin 1995, writ denied). The process server’s verification in the return of service that he is authorized to serve process in the county in which process was served is prima facie evidence that the process server was authorized to serve process in the suit. Brown v. Clark Cincinnati, Inc., No. 2-02-378-CV, *5 (Tex. App.–Fort W orth Sept. 18, 2003, no pet.). 40

47 Jackson v. United States, 138 F.R.D. 83, 88 (S.D. Tex. 1991). Such an attempt by an attorney to serve the defendant includes mailing the petition to the opposing party. See Rogers v. Stover, No. 06-05-00065-CV, 2006 W L 859305, *2 (Tex. App.–Texarkana Apr. 5, 2006, no pet.) (mem. op.).

Tex. R. Civ. P. 103.

4

48

Jackson, 138 F.R.D. at 88.

49

P.G., 616 S.W .2d at 638.

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A return of service may be amended to cure a defect in the original, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.56 The duty for the person requesting service to amend arises if the facts recited in the return are incorrect and do not show proper service.57 An amended return relates back to the original return, and is regarded as filed when the original return was filed. 58 The amendment must be made prior to taking a default judgment against the defendant.59

F. Location of Service of Citation For valid service, the officer serving citation must be acting within the county where he is an officer.50 Citation for a suit filed in Texas may be served on a defendant by an authorized individual outside the state of Texas; the same rules for service within Texas apply to service in a foreign jurisdiction.51 G. Return of Service Whoever serves a citation must endorse the day and hour on which they received the citation to be served, the day and hour on which service was effectuated, and the manner in which service was effectuated. 52 This requirement is fulfilled even if a sheriff is used to serve process, and the deputy sheriff who actually served process signs the sheriff’s name to the return.53 The name of the party listed in the return of service must essentially match the name of the party named in the citation or petition.54 There are five requirements for service by certified mail. The return must:

H. Challenges to Service of Citation before Default Judgment The procedural vehicle for challenging service prior to judgment being taken is a motion to quash service.60 Even though valid service is a prerequisite for personal jurisdiction, “defective jurisdictional allegations in the petition, defective service of process, and defects in the citation must be challenged by a motion to quash, not a special appearance.” 61 The only remedy provided by a motion to quash service of citation is additional time to answer, not dismissal of the suit. 62 Remember, invalid service means only that the court has failed to acquire personal jurisdiction yet, not that the court could not constitutionally acquire personal jurisdiction.

(1) be endorsed upon or attached to the citation; (2) state when citation was served; (3) be signed by the officer officially or the authorized person who served citation;

1.

Burden of Proof

When service of process is challenged, the party responsible for process bears the burden of proving its validity.63 The failure to affirmatively show strict

(4) be verified if served by an authorized person; and (5) have a postal service return receipt with the addressee’s signature attached.55

56

Tex. R. Civ. P. 118.

57

See Primate Const., Inc. v. Silver, 884 S.W .2d 151, 153 (Tex. 1994)

50

Dickinson v. Dickinson, 173 S.W .2d 549, 550 (Tex. Civ. App.–W aco 1943, no writ).

58

Bavarian Autohaus, Inc. v. Holland, 570 S.W .2d 110, 113 (Tex Civ App.–Houston [1st Dist.] 1978, no writ).

51

Tex. R. Civ. P. 108. For service in foreign countries, the laws governing valid service in that country may also be complied with to effectuate service recognized as valid by a Texas court. Tex. R. Civ. P. 108a. 52

59

Vespa v. National Health Ins. Co., 98 S.W .3d 749, 752-53 (Tex. App.–Fort W orth 2003, no pet.). 60

Kawasaki Steel Corp. v. Middleton, 699 S.W .2d 199, 203 (Tex. 1985).

Tex. R. Civ. P. 16, 105.

53 Cortimiglia v. Miller, 326 S.W .2d 278, 284 (Tex. Civ. App.–Houston 1959, no writ). 54

See Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W .3d 308, 310–11 (Tex. App.–Houston [1st Dist.] 2001, pet. denied).

61

Id.

62

Id. at 202.

63

Systems Signs Supplies v. United States Department of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); see also McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex. 1965); United National Bank v. Travel Music of San Antonio, Inc.,

55

Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W .2d 72, 74 (Tex. App.–W aco 1997, writ denied) and progeny.

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compliance with the Rules of Civil Procedure renders attempted service of process invalid and of no effect.64 2.

Standard of Proof

4.

The standard of proof necessary to challenge the sufficiency of service is by a preponderance of the evidence.65

Strict Construction of Rules

The rules regarding service of process have always been strictly construed; the failure to comply with them renders service void.69

3. “Presumption” of Valid Issuance, Service, and Return of Citation

5.

Although the law makes no presumptions in favor of valid issuance, service, and return of citation, the return of service is prima facie evidence of the facts recited therein, and cannot be rebutted by the uncorroborated evidence of the party challenging service.66 However, the evidence offered to impeach need not be direct, but may be wholly circumstantial.67 Such corroborating facts and circumstances, though, must come from a source other than the party on which proper service is alleged.68 Practically, what this means is that there is a rebuttable presumption that the facts attested to in the return of service are true, and that that presumption can only be overcome by evidence – either direct or circumstantial – from more than one source, that the facts recited are not true. If the facts attested to in the return would establish valid service of process and return of citation, and the presumption of their truth is not rebutted, then this presumption transforms into the functional equivalent of a presumption in favor of valid service and return.

“Strict Compliance” with Rules

Strict compliance with the rules governing service of citation is mandatory if a default judgment is to withstand a direct attack either in the trial court or on appeal.70 The term “strict compliance” means literal compliance.71 Virtually any deviation from the rules regarding proper service of process will invalidate that service, and result in the setting aside of a default judgment taken therefrom.72 Failure to comply with these rules constitutes error on the face of the record.73

6.

Fatal Defects in Citation, Service, or Return

Examples of fatal defects in a citation, its service, or the return include:

69

Garcia v. Gutierrez, 697 S.W .2d 758 (Tex. App.–Corpus Christi 1985, no writ). 70

737 S.W .2d 30, 32 (Tex. App.–San Antonio 1987, writ ref'd n.r.e.); Barnes v. Frost Nat. Bank, 840 S.W .2d 747, 749 (Tex. App.–San Antonio 1992, no writ).

Insurance Co. of State of Pa. v. Lejeune, 297 S.W .3d 254, 256 (Tex. 2009); see also Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) and the Texas Supreme Court authorities cited therein, dating back to 1849.

64

North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W .3d 714, 718 (Tex. App.–Austin 2003, pet. denied). 65

71

Amato v. Hernandez, 981 S.W .2d 947, 949 (Tex. App.–Houston [1st Dist.] 1998, pet. denied);

Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1973). 72

West Columbia Nat. Bank v. Griffith, 902 S.W .2d 201, 206 (Tex. App.–Houston [1st Dist..] 1995, writ denied); Ward, 488 S.W .2d at 737-38.

Mansell v. Ins. Co. of the W., 203 S.W .3d 499, 501 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Carmona v. Bunzl Distrib., 76 S.W .3d 566, 568–69 (Tex. App.–Corpus Christi 2002, no pet.).

67

73

66

Cortimiglia, 326 S.W .2d at 285 (citing Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950)).

Lejeune, 297 S.W .3d at 256. This “face of the record” error fulfills one of the prerequisites for taking a restricted appeal. See Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W .3d 571, 573 (Tex. 2006) (In restricted appeals, “review is limited to errors apparent on the face of the record.”).

68

Cortimiglia, 326 S.W .2d at 285 (citing Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908 (1889)).

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•

failure of the citation to be expressly directed to the defendant;74

•

failure of return to be signed by both executing officer and by addressee;81

•

failure of published citation to spell name of defendant correctly;75

•

failure of clerk to sign citation under seal of court; 82

•

failure of the name on the return of service to not essentially match the party named in the citation or petition;76

•

failure to include the correct cause number of the case in the citation;83

• •

failure of the citation or its return to note the day or hour of receipt of the citation;77

service by certified mail without delivery restricted to addressee only;84

• •

failure of return of citation to state when citation was served or the manner of service;78

failure to explicitly follow substituted service; 85 and

• •

service by an unauthorized person;79

failure of waiver of service to acknowledge receipt of a copy of the petition, or include defendant’s mailing address.86

•

service by an authorized person outside the geographical limit of their authorization;80

directions for

7. Non-Fatal Defects in Citation, Service, or Return Although “strict compliance” means literal compliance with the rules, it does not require obeisance to the minutest detail.87 Examples of non-fatal defects in citation, service or return include:

74

Williams v. Williams, 150 S.W .3d 436, 445 (Tex. App.–Austin 2004, pet. denied); Tex. R. Civ. P. 99. Take note: such a defect is not fatally defective if there is no confusion about whether the correct party was actually served. 75

Fleming v. Hernden, 564 S.W .2d 157, 158 (Tex. Civ. App.–El Paso 1978, writ ref’d n.r.e.). 81

76

Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W .2d 61, 64 (Tex. App.–Amarillo 1992, no writ).

See, e.g., Hendon v. Pugh, 46 Tex. 211, 212 (1876) (return showing service on “J.N. Hendon” not sufficient to show service on defendant J.W . Hendon); see also Mega v. Anglo Iron & Metal Co of Harlingen, 601 S.W .2d 501, 504 (Tex. Civ. App.–Corpus Christi 1980, no writ) and cases cited (defendant named “Alejandro M orales M ega” was served via certified mail addressed to “Alejandro M orales M eza,” and return of service was signed by “A.R. Martinez, Jr.,” not “A.R. ‘Tony’ Martinez” who the trial court named in the trial courts order)

82 Verlander Enters., Inc. v. Graham, 932 S.W .2d 259, 262 (Tex. App.–El Paso 1996, no writ). 83

In re S.B.S., 282 S.W .3d 711, 713-14 (Tex. App.–Amarillo 2009, pet. denied). 84

Delta Steamships Lines, Inc. v. Albano, 768 F.2d 728 (5th Cir. 1985).

77

Lejeune, 297 S.W .3d at 256; Business Staffing, Inc. v. Gonzalez, 331 S.W .3d 791, 792-93 (Tex. App.–Eastland 2010, no pet.); Z.J.W., 185 S.W .3d at 907-08; Tex. R. Civ. P. 16, 105, 107. 78

85

Dolly, 10 S.W .3d at 389-90 (order permitted citation and petition to be posted to defendant’s front door, but return only recited “*POSTED TO FRONT DOOR*,” and did not indicate what was posted to the front door).

Barnes, 840 S.W .2d at 749; Tex. R. Civ. P. 105, 107

79 Boltes v. Entex, 158 F.R.D. 110, 114 (S.D. Tex. 1994); Tex. R. Civ. P. 103.

86 Travieso v. Travieso, 649 S.W .2d 818, 820 (Tex. App.–San Antonio 1983, no writ).

80

87

Hisler v. Channelview Bank, 538 S.W .2d 200, 201 (Tex. Civ. App.–Houston [14th Dist.] 1976, no writ) (“It is well settled that for a valid service of civil citation the officer serving citation must be acting within the county wherein he is an officer.”).

Whitworth, 124 S.W .3d at 718; Williams, 150 S.W .3d at 443-44; Regalado v. State, 934 S.W .2d 852, 854 (Tex. App.–Corpus Christi 1996, no writ) (all citing Herbert v. Greater Gulf Coast Enterprises, Inc., 915 S.W .2d 866, 871 (Tex. App.–Houston [1st Dist.] 1995, no writ)).

7

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•

failure of the citation to be directed to the sheriff or constable;88

•

referring to service on defendant’s registered agent as service on “defendant”;95

•

failure to list the operable rule of procedure or statute under which the person serving citation is given the authority to do so;89

•

failure of citation to list plaintiff’s name (under certain circumstances); 96

• •

use of a stamp to fill in the date of service or process server’s signature on the return of service;90

illegibly scribbling a signature on the return of citation;97 and

•

failure to note the date of issuance on the return;98

•

superficial, insignificant, or unsubstantial typographical errors in names of party served or person serving party;91

•

superficial, insignificant, or penmanship discrepancies;92

•

abbreviations of names of documents served in return of service;93

•

referring to act of serving citation as “execut[ing] writ” on return;94

I. Special Provisions for Service in Family Law Cases

unsubstantial

Generally, citation in a divorce is issued and served pursuant to the rules explained supra.99 However, the Family Code establishes several special provisions that affect those general rules governing service. 1.

88

Special Provisions for Dissolution Suits

If respondent is to be served by publication notice of the filing of the petition for divorce, the general Rules apply, except that notice need only be published one time.100 If the respondent is to be served by publication notice of a hearing regarding the management, control or disposition of marital property under unusual circumstances,101 that publication must be in a newspaper of general circulation published in the county in which

Williams, 150 S.W .3d at 445; Tex. R. Civ. P. 15.

89

Ingram Indus. v. U.S. Bolt Mfg., 121 S.W .3d 31, 35 (Tex. App.–Houston [1st Dist.] 2003, no pet.). 90

Griffith, 902 S.W .2d at 206; Payne & Keller Co. v. Word, 732 S.W .2d 38, 40 (Tex. App.–Houston [14th Dist.] 1987, writ ref'd n.r.e.); Houston Pipe Coating Co. v. Houston Freightways, Inc., 679 S.W .2d 42, 45 (Tex. App.–Houston [14th Dist.] 1984, writ ref'd n.r.e.).

95 Payne & Keller Co. v. Word, 732 S.W .2d 38 (Tex. App.– Houston [14th Dist.] 1987, writ ref’d n.r.e.).

91

Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W .2d 608, 613 (Tex. App.–Corpus Christi 1996, writ denied) (the omission of the accent mark and the substitution of the symbol “@” for the word “at” are akin to the errors that do not invalidate service); Payne & Keller Co. v. Word, 732 S.W .2d 38, 41 (Tex. App.–Houston [14th Dist.] 1987, writ ref'd n.r.e.) (no fatal defect where petition and citation spelled name “Philippe Petitfrere,” while return reflected “Philipee Petitfreere”). Is the situation in Word meaningfully different from the situation in Hendon v. Pugh, cited in note 76, supra?

96

Williams, 150 S.W .3d at 444-45.

97

Boat Superstore, Inc. v. Haner, 877 S.W .2d 376, 379 (Tex. App.–Houston [1st Dist.] 1994, no writ). 98

London v. Chandler, 406 S.W .2d 203, 204 (Tex. 1966) (per curiam). Note that this holding was justified by the Court on the principle that a return may be amended under Rule 118. This same justification could be used to conclude that any defect in a return “does not render a citation invalid, service thereof ineffective or a judgment rendered pursuant thereto void,” because the return can always be amended.

92

Popkowsi v. Gramza, 671 S.W .2d 915, 918 (Tex. App.– Houston [1st Dist.] 1984, no writ) (no fatal defect where handwritten return of service could have said either “Michael Poprowski” or “Michael Popkowski”).

99

Tex. Fam. Code § 6.408.

93

Ortiz, 926 S.W .2d 608 (abbreviating “plaintiffs original petition’” to “pltfs’ original pet.”).

100

Tex. Fam. Code § 6.409. This Family Code provision contains form language for the notice to be published.

94

Gibraltar Sav. Ass'n v. Kilpatrick, 770 S.W .2d 14 (Tex. App.–Texarkana 1989, writ denied).

101

8

Governed by Tex. Fam. Code §§ 3.301-3.309.

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the petition was filed. 102 The notice must be published once a week for two consecutive weeks before the hearing for which the respondent is being served, but the first notice may not be published early than the 20th day before the setting.103 A party to a divorce may waive service in the usual manner, but the waiver must contain the mailing address of the respondent and must be sworn. 104 The Rules of Civil Procedure governing waiver of service expressly do not apply to waivers in divorces.105 Any party whose rights, duties, powers or liabilities may be affected by original petitions for enforcement106 and QDROs 107 are entitled to notice by citation.

A man may waive service of citation in any SAPCR by means of an affidavit, which may be signed even before the child is born. 112 The waiver is irrevocable.113 The rights of an alleged biological father may be terminated without personal service or service by publication if the father has not registered with the paternity registry.114 In a suit by a governmental entity to protect the health and safety of a child, the court may issue a temporary order, even if a necessary party is to be notified by publication, and the citation has not yet been published. 115 The court can hold status hearings, approve service plans, and issue final orders even if the necessary party was not served, but only if it finds that the governmental agency exercised due diligence in attempting to locate that necessary party, and that the other persons before the court have furnished information on the absentee’s whereabouts to the agency.116 A motion to transfer the continuing, exclusive jurisdiction from one court to another under the UCCJEA must be served on all parties to the suit, including the attorney general, if applicable.117 When a Title IV-D agency uses private process servers, they do not need to secure a written order from the court authorizing that server to serve process.118 A guardian ad litem for a child is entitled to service of notice of all filings and hearings in a SAPCR.119 In any suit filed by a governmental entity, an attorney ad litem must be appointed for any parent served by publication.120 All respondents to an application for a protective order are entitled to service of notice.121 When an order or judicial writ of withholding is issued, the employer (or a designated agent) may be

2.

Special Provisions for SAPCRs

There are several different parties who are all entitled to service of citation in an original SAPCR: all managing and possessory conservators; a person who has possession of or access to the child; a person who owes support for the child; the child’s guardian; the guardian of the child’s estate; the child’s parent; an alleged father; a person who has filed a notice of intent to claim paternity; a prospective adoptive parent; and the DFPS and the Title IV-D agency under certain circumstances.108 Citation may also be served on any person who has or may assert an interest in the child.109 If respondent is to be served by publication notice of a SAPCR, the general Rules apply, except that notice need only be published one time.110 The Family Code provision for modification suits is less specific than for original SAPCRs: any party whose rights and duties may be effected by the modification is entitled to service.111

102

103

104

112

Tex. Fam. Code § 161.106(a).

113

Tex. Fam. Code § 161.106(f).

114

Tex. Fam. Code § 161.002(c-1), (d).

Tex. Fam. Code § 3.305(a). Tex. Fam. Code § 3.305(b). Tex. Fam. Code § 6.4035(a), (b), (c). 115

105

Tex. Fam. Code § 6.4035(d).

106

Tex. Fam. Code § 9.001.

Tex. Fam. Code §§ 262.201(f), 262.205(d). This provision applies regardless of whether the governmental entity has already taken custody of the child. 116

Tex. Fam. Code § 263.202.

117

Tex. Fam. Code § 155.204(a).

118

Tex. Fam. Code § 231.118(b).

119

Tex. Fam. Code § 107.002(c)(1), (2).

Tex. Fam. Code § 102.010(b). This Family Code provision contains form language for the notice to be published.

120

Tex. Fam. Code § 107.013(a)(2).

111

121

Tex. Fam. Code § 82.043.

107

108

109

Tex. Fam. Code § 9.102. Tex. Fam. Code § 102.009(a). Tex. Fam. Code § 102.009(b).

110

Tex. Fam. Code § 156.003.

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served with citation containing the order or writ.122 The employer need not be served with citation, though, and the writ or order may be delivered to them by mail, email, or fax.123 Notice of an application for a writ of withholding may be delivered by the person authorized by the court to do so (as in civil cases generally), or by a Title IV-D agent, or by certified mail.124 In a suit brought by a minor child seeking the court’s permission to marry, the minor child’s parents are entitled to service of process.125 In a suit to change a child’s name, the parents, managing conservators and guardians of the child are all entitled to notice.126

The party waiving service must be provided with a copy of the original petition, and that fact must be recited in the written memorandum of waiver.130 In a divorce, that memorandum must also include the respondent’s mailing address.131 After a party to a divorce has waived service, ordinarily no further notice is required.132 A minor defendant cannot waive service of citation, and cannot authorize someone else to do so for him.133

B. Form of the Waiver of Service II. W AIVER OF S ERVICE Generally, waivers recite that the party has received a copy of the petition on file in the case, and has read and understands the same, and provides that the waiver is an appearance by the party in the cause for all purposes.134 The waiver also usually recites that the matter may proceed to trial without further notice to the party, and that the party waives the making of a record of testimony in the case itself.135

A. W aiving Service A defendant can waive the issuance of valid service of process of them.127 In order to do so, they must: (1) sign a written memorandum of waiver; (2) after 128 suit is brought; (3) sworn to before a proper office other than an attorney in the case; (4) which is filed in the court in which the suit is pending.129

130 122

Id.

Tex. Fam. Code § 158.105(c). 131

123

Id.

124

Tex. Fam. Code § 158.306(c)(4).

125

Tex. Fam. Code § 2.103.

126

Tex. Fam. Code § 45.003.

127

Tex. R. Civ. P. 119.

Id.; but see Spivey v. Holloway, 902 S.W .2d 46, 48 (Tex. App.–Houston [1st Dist.] 1995, no writ) (purpose of the rule is to notify the clerk of the defendant's location so that the clerk can send a certified copy of the final divorce decree to the defendant; rule need not be strictly applied to consent judgments, only default judgments). 132

Edwards v. Edwards, 651 S.W .2d 940, 942 (Tex. App.–Fort W orth 1983, no writ) 133

Uehlinger v. State, 387 S.W .2d 427, 429 (Tex. Civ. App.–Corpus Christi 1965, writ ref’d n.r.e.).

128

A waiver executed prior to filing of the suit is void. Tidwell v. Tidwell, 604 S.W .2d 540, 541 (Tex. Civ. App.–Texarkana 1980, no writ). 129

Tex. R. Civ. P. 119.

10

134

Edwards, 651 S.W .2d at 942.

135

Id.

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B. Special Appearances

III. G ENERAL AND S PECIAL A PPEARANCES

A special appearance, on the other hand, is the vehicle used when a defendant contends that they are not amenable to service.145 In other words, a special appearance is used by a defendant to argue that service of process alone would not be enough to confer personal jurisdiction over them to the court. 146

A. General Appearances An appearance constitutes a waiver of service.136 However, entering an appearance can only be construed as a waiver of personal service if the appearance is knowing and voluntary.137 A general appearance puts the defendant before the court for all purposes.138 A party makes a general appearance whenever it invokes judgment of the court on any question of other than jurisdiction. 139 When determining whether conduct constitutes a general appearance, the focus is on a party’s affirmative action that impliedly recognizes the court’s jurisdiction over them.140 If the party’s actions do not recognize that the suit is properly pending or that the court has jurisdiction, they have not made a general appearance.141 M ere presence in the courtroom is not an “appearance.” 142 Examining witnesses, though, or offering testimony, does constitute a general appearance,143 as does filing a motion for new trial.144

A special appearance under Rule 120a does not contest service of process; a special appearance contests whether a defendant is amenable to process— whether it has sufficient contacts with Texas to satisfy due process and the Texas long arm statute.147 Even though valid service is not an issue that may be addressed in a special appearance, minimum contacts is not the only issue that may be addressed by one. 148 A special appearance objection to in personam jurisdiction “shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion.” 149 If a defendant inadvertently fails to make a special appearance, they are deemed to have made a general appearance.150

136 Dodson v. Seymour, 664 S.W .2d 158, 161 (Tex. App.— San Antonio 1983, no writ); Grey v. First National Bank, 393 F.2d 371, 384 n. 16 (5th Cir. 1968), cert. denied, 393 U.S. 961, 89 S.Ct. 398, 21 L.Ed.2d 374 (1968), (“[U]nder Rule 121 of the Texas Rules of Civil Procedure, an answer constitutes an appearance of the defendant so as to dispense with the necessity for the issuance of service of citation upon him.”).

C. W aiving Challenges to Service As explained supra, valid service of process is a prerequisite for a court’s exercise of personal jurisdiction over a defendant. As a result, entering a special appearance 151 does not waive a challenge to the validity

137

Petty v. Petty, 592 S.W .2d 423, 426 (Tex. Civ. App.–Dallas 1979, no writ). 138

Boyd v. Kobierowski, 283 S.W .3d 19, 24 (Tex. App.–San Antonio 2009, no pet.).

145 Tex. R. Civ. P. 120a; Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W .2d 66, 72 (Tex. App.–Dallas 1996, no writ), overruled on other grounds by In re Tyco Electronics Power Systems, Inc., No. 05–04–01808–CV, 2005 W L 237232 (Tex. App.–Dallas Feb.2, 2005, orig. proceeding) (mem.op.)

139

Moore v. Elektro-Mobil Technik GmbH, 874 S.W .2d 324, 327 (Tex. App.–El Paso 1994, writ denied). 140

Fridl v. Cook, 908 S.W .2d 507, 515 (Tex. App.–El Paso 1995, writ dism’d w.o.j.); but see Toler v. Travis County Child Welfare Unit, 520 S.W .2d 834, 836 (Tex. Civ. App.–Austin 1975, writ ref’d n.r.e.) (“It is immaterial that the party making such appearance did not intend the results flowing from his actions.”).

146

See Minucci v. Sogevalor, S.A., 14 S.W .3d 790, 794 (Tex. App.–Houston [1st Dist.] 2000, no pet.). 147

Boyo v. Boyo, 196 S.W .3d 409 (Tex. App.–Beaumont 2006, no pet.).

141 Investors Diversified Services, Inc. v. Bruner, 366 S.W .2d 810, 815 (Tex. Civ. App.–Houston 1963, writ ref’d n.r.e.).

148 Moore v. Pulmosan Safety Equipment Corp., 278 S.W .3d 27, 34 (Tex. App.–Houston [14th Dist.] 2008, pet. denied).

142

149

Fridl, 908 S.W .2d at 515.

143

150

Smith v. Amarillo Hosp. Dist., 672 S.W .2d 615, 617 (Tex. App.–Amarillo 1984, no writ).

151

Tex. R. Civ. P. 120a (the Due Order of Pleading rule). Boyd, 283 S.W .3d at 23.

See generally Tex. R. Civ. P. 120a. The rules regarding special appearances could be (and have been) the bases of an entire article, and are outside the scope of this one.

144

Dankowski v. Dankowski, 922 S.W .2d 298, 302 (Tex. App.–Fort W orth 1996, writ denied).

11

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of service.152 On the other hand, defective service can be, and is, waived by making a general appearance.153 In other words, a defendant's appearance in open court shall have the same force and effect as if the citation had been duly issued and served as provided by law.154

B. Procedure for Seeking Default Judgment A plaintiff must file a motion for default judgment with the trial court. C. Special Procedures for Default Judgments Involving Defendants Served by Publication

IV. D EFAULT J UDGM ENTS When a defendant has been served by publication pursuant to Rule 109 and has not made an appearance or filed an answer, the court must appoint an attorney to defend the suit on behalf of the defendant.160 Along with the final judgment, the court must file, as part of the record, a statement of the evidence, approved and signed by the judge.161

The rules governing service of citation and return of citation establish one of the predicates for personal jurisdiction, which in turn empowers the court to enter a default judgment against the person sued. A. W hen Default Judgment Can Be Entered

V. R EMEDIAL M EASURES A default judgment can be entered if the defendant has not filed an answer,155 or if an answer has been filed but the defendant does not appear at a dispositive hearing (such as a final trial).156 However, a default judgment cannot be entered before the defendant’s answer is due,157 and not until the citation with proof of service has been on file with the clerk of the court ten days.158 If the court grants a motion to quash service, the default judgment cannot be entered until the Monday next following twenty days after the date the court quashed the service.159

As explained supra, making an appearance waives any defects in service,162 and all judgments rendered without an appearance by the defendant are default judgments. Therefore, all challenges to the validity of a judgment based on citation, service, or return are challenges to default judgments.163 A. General Standards for Challenging Default Judgments A default judgment will be set aside if the record does not affirmatively show strict compliance with the rules governing service of citation.164 A default judgment is improper against a defendant who has not been served in strict compliance with law, even if he has actual knowledge of the lawsuit.165

152

GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G. v. Varme, 991 S.W .2d 785, 785 (Tex. 1999) (per curiam) (holding special appearance by foreign corporation did not waive challenge to jurisdiction).

160

Tex. R. Civ. P. 244.

161

Id.

153

Bloom v. Bloom, 935 S.W .2d 942, 947 (Tex. App.–San Antonio 1996, no writ). For general appearances, see Tex. R. Civ. P. 120.

162

154

Tex. R. Civ. P. 120.

155

Tex. R. Civ. P. 239 (“failure to answer”).

See Tex. R. Civ. P. 121; see also Dodson, 664 S.W .2d at 161; Grey, 393 F.2d at 384 n. 16 (5th Cir. 1968) 163

Tex. R. Civ. P. 239; Conaway v. Lopez, 880 S.W .2d 448, 449 (Tex. App.–Austin 1994, writ ref’d).

The converse, however, it no always true; a default judgment may be taken after an appearance is made but before an answer is filed, Tex. R. Civ. P. 239, or even after an answer is filed if the defendant does not appear for trial. Dolgencorp, 288 S.W .3d at 925. In those situations, defects in citation, service or return have been waived, but a default judgment is still rendered.

158

164

156

Id. (“failure to appear”); Dolgencorp v. Lerma, 288 S.W .3d 922, 925 (Tex. 2009). 157

Tex. R. Civ. P. 239, 107; South Mill Mushrooms Sales v. Weenick, 851 S.W .2d 346. 350 (Tex. App.–Dallas 1993, writ denied).

Primate Constr. Inc. v. Silver, 884 S.W .2d 151, 152 (Tex. 1994) (per curiam); Payless Cashways, Inc. v. Hill, 139 S.W .3d 793, 795-96 (Tex. App.–Dallas 2004, no pet.).

159

165

Tex. R. Civ. P. 122.

12

Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).

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For a default judgment to survive a direct attack, the record must show such strict compliance with the Rules of Procedure,166 and the citation must appear among the papers of the court.167 Virtually any deviation from the statutory requisites for service of process will destroy a default judgment.168 The critical issue in a review of a default judgment is whether service upon the defendant was defective in the first place, not “Why did the defendant not appear?” 169 The answer to that latter question may be either that service was not properly executed, or that service was proper but some other intervening event prevented appearance.170 While not the “critical issue,” the answer to that latter question does have a significant bearing on how the default judgment is challenged.

(1) motion for new trial (trial court); (2) direct appeal (appellate court); (3) restricted appeal (appellate court); or (4) bill of review (trial court); Each method is appropriate in different circumstances. 1.

Motion for New Trial

166

A motion for new trial affords a defendant their first opportunity to attack a default judgment. 174 When a default judgment is attacked by a motion for new trial or bill of review in the trial court, the record is not so limited and the “parties may introduce affidavits, depositions, testimony, and exhibits to explain what happened.” 175 There are two types of motions for new trial for a default: a traditional motion for new trial if service is invalid and no answer is filed; and an equitable motion for new trial if service is valid but no answer is filed. In the first situation, if the defaulting party was not properly served, then a traditional motion for new trial filed under Rule 320 176 may be used to establish any of the general standards for challenging a default judgment, as articulated supra. Such fatal defects may arise from either the citation, the service, or the return. A traditional motion for new trial is also used to challenge a default judgment rendered upon an insufficient petition, regardless of the validity of service. In order to support a default judgment, the plaintiff’s petition must:

167

(1) state a cause of action that is within the jurisdiction of the court;

1.

No Presumption of Validity

Generally, presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), but no such presumptions are made on direct attack of a default judgment, 171 even if those recitations of proper service are made in the default judgment.172 B. Procedures for Challenging Default Judgments There are four basic ways to levy a direct attack 173 on a default judgment, two in the trial court and two in the court of appeals. The party against whom the default was taken may file – in chronological order – either a:

North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 718 (Tex. App.–Austin 2003, pet. denied). Plains Chevrolet, Inc. v. Thorne, 656 S.W .2d 631, 633 (Tex. App.–W aco 1983, no writ).

(2) give fair notice to the defendant of the claim asserted; and

168

Carmona v. Bunzl Distribution, 76 S.W .3d 566, 568–69 (Tex. App.–Corpus Christi 2002, no pet.). 169

Marrot, 227 S.W .3d at 379.

170

See Fidelity, 186 S.W .3d at 574.

(3) not affirmatively disclose the invalidity of such claim on its face.177

174

171

See P. M. Healthcare, Inc. v. Childs, 929 S.W .2d 442, 443 (Tex. 1996) (per curiam); Coinmach, Inc. v. Aspenwood Apt. Corp., 98 S.W .3d 377, 380 (Tex. App.–Houston [1st Dist.] 2003, no pet).

Crook v. Teitler, 584 S.W .2d 356, 358 (Tex. Civ. App.– Tyler 1979, no writ) 172 Plains Chevrolet, 656 S.W .2d at 633; Primate Const., Inc. v. Silver, 884 S.W .2d 151, 152 (Tex. 1994) (“There are no presumptions in favor of proper issuance, service, and return of citation in the face of a [direct] attack on a default judgment.”).

175

Fidelity, 186 S.W .3d at 573-74.

176

Tex. R. Civ. P. 320.

173

Other means of redress, such as a collateral attack or a mandamus, are only very rarely appropriate means to challenge a default judgment.

177

Paramount Pipe & Supply Co., Inc., v. Muhr, 749 S.W .2d 491, 494 (Tex. 1988).

13

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If the petition violates any of these requirements, the court must grant a new trial. In the second situation, if the defaulting party was properly served, but learns of the default while the trial court still possesses plenary power over the judgment, they may file an equitable motion for new trial. 178 The Texas Supreme Court has held that a default judgment should be set aside when the defendant establishes that:

2.

Direct Appeal

The reversal of a default judgment requires a motion for new trial to preserve error for appellate review.184 A party waives their complaint that the trial court entered a default judgment without proper notice of the trial if they fail to file a motion for new trial, or otherwise seek to set aside the default judgment in the trial court,185 such as by a bill of review. When the attack on a default judgment relies on extrinsic evidence, a motion for new trial is a prerequisite to complaining on appeal that the default judgment should be set aside,186 because such a complaint requires considering and weighing the evidence,187 which only a trial court may do. In sum, in order to directly appeal a default judgment for invalid service, the appellant must be appealing an adverse ruling from the trial court on either a motion for new trial, or a bill of review. All of the ordinary rules regarding other direct appeals 188 apply to appeals of an adverse ruling on faulty service, as do all of the general standards for challenging default judgments explained supra.

(1) the failure to answer was not intentional or the result of conscious indifference, but the result of an accident or mistake; (2) the motion for new trial sets up a meritorious defense; and (3) granting the motion will occasion no undue delay or otherwise injure the plaintiff.179 The so-called Craddock test establishes that the accident or mistake “may be very slight,” and “some excuse but not necessarily a good excuse” will suffice.180 The dispositive factor is whether the defaulting party realizes their mistake only after the judgment is taken (or when appearing to prevent the default is impractical).181 There are some limitations to the Craddock test. If other rules of law provide the defaulting party with a remedy, then a Craddock equitable motion for new trial is not available. For instance, in Carpenter, the default was granted on a motion for summary judgment to which the defaulting party failed to timely respond, and for which he had an opportunity to seek a continuance or obtain leave to file a late response for.182 There is a special rule for motions for new trial where the defendant was served by publication. A court may grant a motion for new trial to a defendant served by publication up to two years after the judgment if the defendant files the motion along with an affidavit showing good cause why they did not appear to defend the original suit.183

3.

Restricted Appeal

A restricted appeal is the appellate mechanism for challenging a judgment when the deadlines for filing a motion for new trial or a direct appeal have lapsed. A restricted appeal is filed directly in an appellate court.189 As in any other appeal, the appellate court does not take testimony or receive evidence.190 Instead, the review is limited to errors apparent on the face of the

184

Mamou v. Sias, No. 14-10-01154-CV, 2011 W L 2803437, *2 (Tex. App.–Houston [14th Dist.] Jul. 19, 2011, no pet.) (mem. op.). 185

178

Id. (citing Washington v. Taylor, No. 01-08-00255-CV, 2010 W L 1571201, at *2 (Tex. App.–Houston [1st Dist.] Apr. 8, 2010, no pet.) (mem. op.)).

Tex. R. Civ. P. 329b(d).

179

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W .3d 682, 685 (Tex. 2002) (citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939)).

Massey v. Columbus State Bank, 35 S.W .3d 697, 699 (Tex. App.–Houston [1st Dist.] 2001, pet. denied).

180

187

186

Craddock, 134 Tex. at 391, 133 S.W .2d at 125; Dorsey v. Aguirre, 552 S.W .2d 576, 577 (Tex. Civ. App.–W aco 1977, writ ref’d n.r.e.).

See Ginn v. Forrester, 282 S.W .3d 430, 432 (Tex. 2009) (per curiam). 188

Such as a party being required to file a notice of appeal within thirty days after the judgment. Tex. R. App. P. 26.1(a).

181

Carpenter, 98 S.W .3d at 685.

182

Id. at 686.

189

See Tex. R. App. P. 30.

183

Tex. R. Civ. P. 329(a).

190

Fidelity, 186 S.W .3d at 573.

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record.191 In such appeals, “[t]here are no presumptions in favor of valid issuance, service, and return of citation.” 192 A party to a suit 193 must file a restricted appeal within six months of the signing of the default judgment.194 There are three prerequisites for prevailing on a restricted appeal:

For the purposes of a bill of review, extrinsic fraud is fraud which denies a party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted.202 It is wrongful conduct practiced outside of the adversary trial— such as keeping a party away from court, making false promises of compromise, denying a party knowledge of the suit— that affects the manner in which the judgment is procured.203 On the other hand, intrinsic fraud relates to the merits of the issues which were presented and resolved–or could have been resolved–in the former action. 204 Intrinsic fraud is “inherent in the matter considered and determined before the trial court ‘where the fraudulent acts pertain to an issue involved in the original action, or where the acts constituting the fraud were, or could have been litigated therein.’” 205 Examples include fraudulent instruments, perjured testimony, or any matter which was actually presented to and considered by the trial court in rendering the judgment assailed.206 Only extrinsic fraud will entitle a party to relief through a bill of review.207 A default judgment will be set aside in a bill of review proceeding if the defendant shows:

(1) the defendant did not participate in the actual trial of the case;195 (2) the defendant did not file a postjudgment motion,196 a request for findings of fact and conclusions of law, or a notice of appeal within the appellate deadlines; 197 and (3) the trial court’s error is apparent from the face of the record.198 4.

Bill of Review

A bill of review is the final remedy available for setting aside a judgment, and is resorted to when the deadlines for filing a motion for new trial, a direct appeal, and a restricted appeal have all lapsed.199 The bill of review is filed in the trial court. It must be filed within four years of the default judgment,200 but that limitations period is tolled in the presence of extrinsic fraud.201

(1) a meritorious defense to plaintiff's cause of action; (2) which he was prevented from making by extrinsic fraud, accident, or wrongful conduct of opposing party; and (3) that excuse offered is unmixed with any fault or negligence of his own.208

191

Id.; see Alexander v. Lynda's Boutique, 134 S.W .3d 845, 848 (Tex. 2004). 192

Primate Const., Inc. v. Silver, 884 S.W .2d 151, 152 (Tex. 1994). 193

202

Norman Commc’ns v. Texas Eastman Co., 955 S.W .2d 269, 270 (Tex. 1997).

Tice v. City of Pasadena, 767 S.W .2d 700, 702 (Tex. 1989) (orig. proceeding).

194

Tex. R. App. P. 26.1(c).

203

195

Tex. R. App. P. 30.

Ince v. Ince, 58 S.W .3d 187, 190 (Tex. App.–W aco 2001, no pet.). 204

196

Such as a motion for new trial.

197

Tex. R. App. P. 30.

198

Norman, 955 S.W .2d at 270.

199

Tex. R. Civ. P. 329b(f).

Id.

205

Montgomery v. Kennedy, 669 S.W .2d 309, 313 (Tex. 1984). 206

Alexander v. Hagedorn, 148 Tex. 565, 226 S.W .2d 996, 1001 (1950). 207

200

Tice, 767 S.W .2d at 702.

Tex. Civ. Prac. & Rem. Code § 16.051. 208

Alexander, 148 Tex. 565, 226 S.W.2d at 998 (Tex. 1950). Note the similarity between these requirements and the Craddock factors for equitable motions for new trial.

201

Manley v. Parsons, 112 S.W .3d 335, 338 (Tex. App.– Corpus Christi 2003, pet. denied).

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C. Effects of Reversal If the defendant files an answer and motion for new trial after a default judgment is entered, they do not thereby waive their challenge to service.213 However, as explained supra, if a defendant successfully appeals a default judgment due to invalid service, the filing of the appeal constitutes a general appearance in the trial court upon remand.214 The basic principle to be derived from these authorities is that a challenge to service is, in its essence, a challenge to the trial court’s jurisdiction over the defendant.

There are three actions which make a defendant susceptible to having a judgment of any kind rendered against them: (1) receipt of valid service of citation; (2) executing a waiver of service; or (3) entering an appearance in the case.209 If a default judgment is reversed because one of these three criteria has not been fulfilled, the defendant shall be deemed to have entered an appearance (that is, fulfilled the third criterion) as to future proceedings in the trial court.210 Another way of stating this rule is that by perfecting a full appeal, a defendant enters an appearance in the trial court, thus curing any defects in service of process against them.211 The rule is different for restricted appeals: if a party prevails on a restricted appeal based on defective service or a lack of service, they may still make a special appearance in the trial court. 212

209

Tex. R. Civ. P. 124.

210

Tex. R. Civ. P. 123; Steve Tyrell Productions, Inc. v. Ray, 674 S.W .2d 430 (Tex. App.–Austin 1984, no writ); but see Dunn v. Mortenson, 36,878 (La. App. 2d Cir. 3/5/03), 839 So.2d 1007 (holding that any challenges to personal jurisdiction survive the reversal unless the trial court made a specific finding that it had personal jurisdiction, and that finding was not reversed by the appellate court). 211

W. Guar. Loan Co. v. Dean, 309 S.W .2d 857, 864 (Tex. Civ. App.–Dallas 1957, writ ref’d n.r.e.). 212

Boyd, 283 S.W.3d at 24. The San Antonio Court recognized that after the defendant secured a reversal of the judgment based on defective service, he was effectively served, citing Rule 123. The Court also acknowledged that, on reversal, the defendant was presumed to have entered a general appearance. However, the Court then commented that the defendant “could have escaped Rule 123's presumption of a general appearance using Rule 120a’s special appearance.”

213

Rivers v. Viskozki, 967 S.W .2d 868, 870-71 (Tex. App.– Eastland 1998, no pet.). 214

16

See Steve Tyrell, 674 S.W .2d 430.