Randall Earl Berkefelt v. Diane Lynne Jackson

Opinion issued October 9, 2008 Opinion issued October 9, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00526-CV RANDALL EARL BERKEFELT, Appellant V. DIANA LYNNE JACKSON, Appellee On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 96-2174 MEMORANDUM OPINION Appellant, Randall Earl Berkefelt, appeals a default judgment rendered against him in a suit to modify the parent-child relationship. Berkefelt contends that the default judgment should be reversed because (1) he was not properly served, (2) the order for alternative service was defective, and (3) he was not notified by the clerk of the court that any default judgment was ordered. Finding error on the face of the record, we reverse and remand. Background On October 20, 2006, Appellee Diana Jackson, Berkefelt’s ex-wife and the mother of his children, filed a petition to modify the parent-child relationship. On December 14, the trial court signed an order on a motion, authorizing Jackson to serve Berkefelt at his home by leaving the citation and petition with someone over the age of sixteen. The process server filed a return of service on December 15, stating that the petition had been attached to Berkefelt’s back door. On March 26, 2007, the trial court granted Jackson’s petition to modify the parent-child relationship and ordered Berkefelt to pay $2702 in attorney’s fees to Jackson. Berkefelt did not appear at the trial, and thus the judgment was a default judgment. According to Berkefelt, he did not receive notice of the trial nor did he receive notice that a default judgment had been rendered against him. He asserts that he became aware of the judgment only upon visiting the Attorney-General’s office to verify the amount of child support that he owed. Analysis A default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the Texas Rules of Civil Procedure. Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied). In contrast to the usual rule that all presumptions will be made in support of a judgment, there are no presumptions of valid issuance, service, and return of citation when examining a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); McGraw-Hill, 823 S.W.2d at 416. Jurisdiction over the defendant must affirmatively appear by a showing of due service of citation, independent of the recitals in the default judgment. Faggett v. Hargrove, 921 S.W.2d 274, 276 (Tex. App.—Houston [1st Dist.] 1995, no writ); Mass. Newton Buying Corp. v. Huber, 788 S.W.2d 100, 102 (Tex. App.—Houston [14th Dist.] 1990, no writ). Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of service. Tex. R. Civ. P. 106(b). “Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court.” Tex. R. Civ. P. 107. When a trial court orders substituted service under Rule 106, the only authority for the substituted service is the order itself. Dolly v. Aethos Commc’ns Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.); Broussard v. Davila, 352 S.W.2d 753, 754 (Tex. Civ. App.—San Antonio 1961, no writ). Because the trial court’s order is the sole basis of authority authorizing substituted service, any deviation from the trial court’s order necessitates a reversal of the default judgment based on service. Becker v. Russell, 765 S.W.2d 899, 900 (Tex. App.—Austin 1989, no writ). Here, Jackson served Berkefelt using substitute service under Rule 106. Jackson was required to follow the trial court’s instructions exactly when serving Berkefelt. Id. The trial court required that service be effected by “leaving a copy of the citation with pleadings and orders attached . . . with anyone over sixteen years of age at that address.” The return of service showed that the process server attached the citation and petition to Berkefelt’s back door. Because the return of service is prima facie evidence of how service was performed, it proves that the order was not left with someone over the age of sixteen as instructed by the trial court. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (holding that return of service is considered prima facie evidence of facts recited therein); Furst v. Smith, 176 S.W.3d 864, 872 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The trial court’s order amounted to the only legal authorization for Jackson’s actions. When Jackson failed to strictly follow the order, she violated Rule 106 of the Texas Rules of Civil Procedure. See Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex. App.—Fort Worth 2003, no pet.) (holding that service was invalid when return of service stated citation and petition were left on door contrary to trial court’s instructions requiring citation, petition and court order to be placed on door). Violation of Rule 106 makes the service of process invalid and of no effect. See Wilson, 800 S.W.2d at 836. Defective service of process removes the trial court’s jurisdiction over the defendant. See id. (holding that jurisdiction is dependent upon citation issued and served in a manner provided for by law). Because service was defective in this case, the trial court lacked jurisdiction to grant the default judgment. Conclusion We hold that service was defective and therefore the trial court lacked jurisdiction to grant a default judgment. We thus reverse the default judgment and remand the case to the trial court for further proceedings. Jane Bland Justice Panel consists of Justices Jennings, Hanks, and Bland.