Domanick Davis A/K/A Domanick Williams and Tamika Davis v. George R. and Mianna Martin

Opinion issued February 12, 2009 In The Court of Appeals For The First District of Texas ____________ NO. 01-07-00831-CV ____________ DOMANICK DAVIS a/k/a DOMANICK WILLIAMS and TANIKA DAVIS, Appellants V. GEORGE R. MARTIN and MIANNA MARTIN, Appellees On Appeal from the 239th District Court Brazoria County, Texas Trial Court Cause No. 42167 MEMORANDUM OPINION Appellants, Domanick Davis a/k/a Domanick Williams and Tanika Davis (“the Davises”), appeal a no-answer default judgment rendered against them on June 25, 2007, in a suit brought by appellees, George R. Martin and Mianna Martin (“the Martins”). We determine whether the trial court lacked in personam jurisdiction over the Davises due to defective service. We reverse the judgment and remand the cause. Background The Davises purchased property at 5930 Tammy Drive, Manvel, Texas which was adjacent to the Martins’ residence. The Martins subsequently sued the Davises, claiming that the Davises blocked the natural flow of surface waters that flowed from the Martins’ property and maintained barriers to proper drainage, causing flooding on the Martins’ property. The Martins sought damages, injunctive relief, exemplary damages, civil penalties for violations of the Texas Water Code, and an equitable easement. The original petition was filed on March 26, 2007, and an amended petition was filed on April 12, 2007. On May 3, 2007, the Martins filed a motion for substitute service of process, requesting the trial court to authorize service by attaching the petitions, along with copies of the motion, on the front door and gate of the residence at 5930 Tammy Drive in Manvel, Texas. The motion alleged the following as the basis for the granting of substitute service: The Davises’ usual place of abode was 5930 Tammy Drive, Manvel, Texas 77578; The Martins had attempted to serve the Davises on numerous occasions by personal delivery, via Brazoria County Constable Willie Howell, as attested in an attached affidavit, but had been unsuccessful; Copies of the petitions had been left with the Davises’ real estate agent and it was “highly likely” that the agent would have shared knowledge of the petition with the Davises; The Davises “visit[ed] the residence occasionally” and would “almost certainly receive notice” if the citation were posted on the front door or gates of the residence; and The attorney for the Martins had been in communication with an attorney claiming to represent the Davises, the Martins would inform that attorney of the substituted service, and the Martins believed that the Davises would have, and did already have, notice of the suit. Attached to the motion was an affidavit, signed by Willie Howell, Brazoria County Constable, Precinct 2, which attested to the following regarding service: I received Plaintiffs [sic] Original Petition and Plaintiffs [sic] Amended Petition to serve upon Defendants at 5830 Tammy Drive, Manvel, Brazoria County, Texas. I have made seven (7) attempts to serve Defendants, Domanick Davis a/k/a Domanick Williams and Tamika Davis (hereinafter referred to as “Defendants”) with the Petitions and have been unsuccessful. I have spoken with ReMax, the real estate agent attempting to sell Defendants [sic] home, who informed me that the Defendants still reside at the residence. The real estate agent has contact with the Defendants. I have checked with the post office and no forwarding address has been requested. Notice to Defendants should be able to be obtained by posting the citations to the entry gates and by serving Defendants [sic] real estate agent, ReMax. Also appearing in the clerk’s record, immediately following Howell’s affidavit, is a copy of a constable’s return signed by Howell. The return is not referenced to, nor incorporated, by either the affidavit or the motion for substitute service. The return recites that it was returned, not executed, on April 28, 2007, and lists five attempts at service on the Davises. It does not list the address or addresses at which service was attempted. The following page in the clerk’s record, possibly a copy of the back of the return, lists what appear to be two additional attempts, which likewise do not list an address. A notation following the date and time of the fifth attempted service states, “I talked with neighbors who advised that Mr. & Mrs. Davis did not stay at residence very much [sic] possibly been staying in Louisiana. Check [sic] with Post Office. No Forwarding. Home for Sale by ReMax . . . who advised that Davis [sic] still live at Residence. But they do have 3 Homes.” The trial court granted the motion for substitute service on the same day that it was filed. The record does not reflect that any hearing took place or that any testimony was heard. The court’s order read: After considering Plaintiffs’ Motion for Substitute Service and the supporting affidavit, the Court finds Plaintiffs’ attempts to serve Defendants have been unsuccessful and finds the substitute service requested in Plaintiffs’ motion will be reasonably effective to give Defendants notice of the suit. Therefore, the Court GRANTS the motion and authorizes substitute service on Defendants, Domanick Davis a/k/a Domanick Williams and Tamika Davis by posting the Amended Original Petition on the gates of 5930 Tammy Drive, Manvel, Texas 77578. On May 9, 2007, Howell posted copies of the first amended petition and the application for injunction on the front gate of 5930 Tammy Drive, Manvel, Texas, along with individual citations for each of the Davises. On June 25, 2007, the trial court granted a default judgment against the Davises. At the time of the hearing, the trial court mistakenly believed that an answer had been filed, but the judgment correctly states that no answer was filed. Admitted at the hearing were copies of the citations and returns, and a copy of the order authorizing substitute service. On the issues of jurisdiction and service, the default judgment recited: Defendants have not appeared in this cause though duly cited with Plaintiffs’ First Amended Original Petition. The Court determined that it had jurisdiction over the subject matter and the parties in this proceeding . . . . Defendants were served with citation and a copy of Plaintiffs [sic] First Amended Petition on May 10, 2007. Citation and proof of service have been on file with the clerk of the court at least ten days before the judgment was rendered. The deadline for Defendants to file an answer was June 4, 2007. However, Defendants did not file an answer or any other pleading constituting an answer. Defendants [sic] last known address is 5930 Tammy Drive, Manvel, Texas 77578. Defendants are not members of the United States Military. Appearing in the clerk’s record immediately following the judgment are: (1) an undated, unsworn “Certificate of Last Known Address,” filed by the Martins, which states, “Plaintiffs, George and Mianna Martin, certify that the last known address of Defendants is 5930 Tammy Drive, Manvel, Texas 77578”; and (2) “Plaintiff’s Soldiers’ and Sailors’ Affidavit,” sworn to by Mianna Martin on June 25, 2007, attesting to the fact that the Davises were married to each other, were not in the military, “have resided at 5930 Tammy Drive in Manvel, Texas” and that Domanick Davis was a professional football player who, “until recently played for the Houston Texans.” Notices of default judgment were sent to the Davises at 5930 Tammy Drive, Manvel, Texas on July 2, 2007, and were returned to the district clerk as undeliverable due to the lack of a mail receptacle and the absence of a forwarding address. On July 25, 2007, the Davises filed a motion for new trial, asserting that they were not properly served as required by Texas Rule of Civil Procedure 106 and that the affidavit in support of the motion for substitute service was deficient. The Davises alleged that (1) they did not regularly live at 5930 Tammy Drive, Manvel, Texas; (2) they had a home in Louisiana that was their primary residence and this fact was known to the plaintiffs; (3) no service was attempted at their primary residence in Louisiana; (4) the Manvel address was their second home; (5) no one was staying at the Manvel address at the time that service was attempted; and (6) the constable’s affidavit, filed in support of the motion for substitute service, failed to state the location of the Davises’ usual abode or other place where they could probably be found. The Davises also asserted that the Martins knew that the Davises were represented by counsel, but never notified counsel of the motion for substitute service, the motion for default judgment, or the default judgment itself. No evidence was attached to the motion for new trial. A hearing on the motion for new trial took place on August 27, 2007; no testimonial or documentary evidence was received at the hearing. The trial court denied the motion for new trial on September 7, 2007. Jurisdictional Challenge The Davises’ first contention is that the trial court never acquired in personam jurisdiction over them because the attempted substitute service was defective and did not strictly comply with the requirements of Texas Rule of Civil Procedure 106. They specifically aver that the affidavit used to support the motion for substitute service did not state that 5930 Tammy Drive was their usual place of abode or place where they could probably be found as required by Rule 106(b), argue that this omission was fatal, and contend that the default judgment must be set aside and the case remanded. A. Default judgments, jurisdiction, and strict compliance Before a default judgment can be properly rendered against a defendant, the record must affirmatively demonstrate that the trial court has jurisdiction over the subject matter and the parties. Marrot Comm’ns, Inc. v. Town & Country P’ship, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968)). Personal jurisdiction over a defendant to a suit is dependant on citation issued and served in a manner provided for by law. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). If, at the time of the default judgment, the record does not affirmatively show either an appearance by the defendant, proper service of citation, or a written waiver of service, the trial court does not have in personam jurisdiction to enter a judgment against the defendant. Id.; see also Tex. R. Civ. P. 107 (“No default judgment shall be granted in any cause until the citation . . . shall have been on file with the clerk of the court ten days.”). Even actual notice to a defendant is not sufficient to convey jurisdiction on the trial court and will not serve to cure defective service. Marrot Comm’ns, Inc., 227 S.W.3d at 376 (citing Wilson, 800 S.W.2d at 836). “[A] default judgment rendered on defective service will not stand” and rules governing service will be “rigidly enforce[d]” on appellate review of the judgment. Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007). In the face of a direct attack on a default judgment, no presumptions are made in favor of valid issuance, service, or return of citation, and “failure to affirmatively show strict compliance with the Rules of Civil Procedure renders [any] attempted service of process invalid and of no effect.” Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). A default judgment rendered against a defendant who has not been served in strict compliance with the law is improper and must be reversed. Hubicki, 226 S.W.3d at 408; Wilson, 800 S.W.2d at 838. B. Substitute service under Rule 106(b) Texas Rule of Civil Procedure 106(b) provides: 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 [Rule 106](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(b). Substitute service is not authorized under Rule 106(b) without an affidavit that meets the requirements of the rule. See Wilson, 800 S.W.2d at 836; Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 444 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (op. on reh’g); accord Light v. Verrips, 580 S.W.2d 157, 159 (Tex. App.—Houston [1st Dist.] 1979, no writ) (“In personam jurisdiction cannot be based upon substituted service unless the record shows a strict compliance with the statute authorizing such service.”). C. Analysis Whether a trial court has personal jurisdiction is a question of law. Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Accordingly, we review de novo the question of whether the substitute service sought and ordered was authorized under Rule 106 and whether a default judgment could be properly rendered against the Davises based on the substitute service utilized in this case. See id. at 870. Under Rule 106(b), a trial court may authorize substitute service “upon motion supported by affidavit.” Tex. R. Civ. P. 106(b). The affidavit must state: (1) “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 (2) the “specifi[c] . . . facts showing that service has been attempted under either [Rule 106](a)(1) or (a)(2) at the location named in such affidavit but has not been successful[.]” Id. Howell’s affidavit meets neither requirement. The affidavit does not state the location of the Davises’ usual place of business, usual place of abode, or other place where the Davises can probably be found. The affidavit does list an address for service—5830 Tammy Drive, Manvel, Brazoria County, Texas—but fails to state that this is the Davises’ usual place of business or usual place of abode or other place where they can probably be found. Moreover, the trial court order authorizes service at 5930 Tammy Drive, not 5830 Tammy Drive, the address attested to by Constable Howell. Howell’s affidavit does not mention 5930 Tammy Drive, nor does it state that such address is the Davises’ usual place of business or usual place of abode or other place where they can probably be found. The affidavit also does not state that service had ever been attempted at 5930 Tammy Drive, Manvel, Texas nor that such attempts had not been successful. The affidavit does state that Howell made seven attempts to serve the Davises, but does not state at what address such attempts at service were made, nor the times or dates of such attempted service. We are obliged to “rigidly enforce” the requirements of Rule 106(b) and may make no presumptions in favor of valid issuance, service, or return of citation. See Hubicki, 226 S.W.3d at 408; Uvalde Country Club, 690 S.W.2d at 885. Howell’s affidavit failed to comply with the strict requirements of Rule 106(b) and could not, therefore, support the trial court’s order for substitute service. See In re J.M.I, 223 S.W.3d 742, 745 (Tex. App.—Amarillo 2007, no pet.) (holding that affidavits that did not state number of attempts at service or calendar dates of attempted service failed to comply with requirements of Rule 106(b) and were “fatally defective”); In re Sloan, 214 S.W.3d 217, 222–23 (Tex. App.—Eastland 2007, orig. proceeding) (holding that affidavit that did not state dates or times of attempted service and did not state that address was defendant’s usual place of abode did not meet requirements of Rule 106(b) and failed to support motion for substituted service); Coronado v. Norman, 111 S.W.3d 838, 842 (Tex. App.—Eastland 2003, pet. denied) (reversing default judgment when affidavit supporting motion for substituted service did not contain specific dates and times of service); Olympia Marble & Granite, 17 S.W.3d at 444 (reversing default judgment when affidavit did not state that address for substitute service was defendant’s usual place of place of business or business owner’s usual place of abode); Garrels v. Wales Transp. Inc., 706 S.W.2d 757, 759 (Tex. App.—Dallas 1986, no writ) (reversing default judgment when affidavit did not state that address for substitute service was defendant’s usual place of abode or other place where defendant could be found). Because substitute service was not authorized under Rule 106(b) due to a lack of strict compliance with the rule, the attempted service on the Davises by the posting of the citations and petitions on the gates at 5930 Tammy Drive, Manvel, Texas was “invalid and of no effect.” See Wilson, 800 S.W.2d at 836; Uvalde Country Club, 690 S.W.2d at 885. We conclude that the trial court had no in personam jurisdiction over the Davises and the default judgment against them was improper. Hubicki, 226 S.W.3d at 408; Wilson, 800 S.W.2d at 838. We sustain the Davises first issue, reverse the default judgment, and remand the cause. Pursuant to Texas Rule of Civil Procedure 123, no new service of process is necessary. See Tex. R. Civ. P. 123 (“Where the judgment is reversed on appeal or writ of error for the want of service, or because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed.”); Cates v. Pon, 663 S.W.2d 99, 102 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (reversing default judgment because of invalid service, but noting, under Texas Rule of Civil Procedure 123, that no new service was necessary because appellant, by appealing default judgment, had submitted himself to jurisdiction of trial court). Conclusion We reverse the judgment and remand the cause to the trial court for further proceedings. Tim Taft Justice Panel consists of Justices Taft, Bland, and Sharp.