Roberta J. Crawford v. State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00318-CV Roberta J. Crawford, Appellant v. State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT NO. 99-06455, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING Appellant Roberta J. Crawford brings a restricted appeal from a default judgment rendered against her in an estate tax case. We will affirm in part the district-court judgment, and reverse and remand in part. Factual and Procedural Background In June 1999, plaintiff State of Texas sued Crawford individually and as executrix of the estate of Ruppert Craze, (1) for inheritance taxes, penalties, interest and attorney's fees. Crawford was served by substituted service and failed to answer. On August 26, 1999, the court signed a default judgment against Crawford. Crawford brings two issues on appeal, asserting that the district court never acquired personal jurisdiction over her and that the judgment incorrectly assessed damages and attorney's fees against her. Personal Jurisdiction In her first issue, Crawford asserts that the district court never acquired personal jurisdiction to render a judgment against her because the manner of service was defective and because the order authorizing substituted service was improper. Defective Service A default judgment cannot withstand direct attack by a defendant who shows that service did not strictly comply with applicable requirements. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). In contrast to the usual rule that all presumptions--including valid issuance, service and return of citation--will be made in support of a judgment, no such presumptions apply to a direct attack on a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Strict compliance with the rules governing service of process must be affirmatively shown. Id. Crawford claims that service was defective because the constable performing service knew that she was not living at the service address but nevertheless accomplished service by attaching a copy of the citation and petition to her door. Service on Crawford was accomplished in accordance with the rule governing substituted service: 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 (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service 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 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). The constable's affidavit in support of the motion for substituted service details six service attempts at various times of day. He states that after five visits, he received a telephone call from Crawford stating that she was living in a hotel in Houston while her house in Houston was being renovated and that her daughter-in-law was currently living at the address in Denton County. The constable's affidavit states that Crawford refused to give her address in Houston and stated that she would not be back for three months. In her brief, Crawford asserts that she told the constable that she was no longer at the Denton County address, but she does not dispute the statement in the constable's affidavit concerning her refusal to give an address in Houston. Due process requires only that "the method of notice used be reasonably calculated, under the circumstances, to apprise an interested party of the pendency of the action and afford the party the opportunity to present objections." Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84-85 (1988); Walker v. Brodhead, 828 S.W.2d 278, 280 (Tex. App.--Austin 1992, writ denied). Walker was a bill of review proceeding brought to set aside a default judgment. After several unsuccessful attempts at service, substituted service had been accomplished by leaving a copy of the citation with a person over sixteen years of age at defendant Walker's ranch outside Kerrville. Walker, 828 S.W.2d at 280. Defendant Walker claimed that the method of service used was not reasonably calculated to give him notice of the suit and that the receiver fraudulently obtained the order authorizing substituted service because the receiver knew that Walker was out of the county at the time and so probably could not be found at the ranch. Id. at 280-81. However, the court held that such a lack of notice did not necessarily void the judgment; that due process required only that the method of notice used be reasonably calculated, under the circumstances, to apprise an interested party of the pendency of the action and afford the party the opportunity to present objections. Id. at 280. Notice can be reasonably effective even if there is reason to believe that the defendant might not be physically present at a given moment at the service address. See Pao v. Brays Village East Homeowners Ass'n, 905 S.W.2d 35, 37 (Tex. App.--Houston [1st Dist.] 1995, no writ) (service at usual place of abode adequate when affidavit detailed attempts at service and stated that defendant was evading service); Magan v. Hughes Tel. Network, Inc., 727 S.W.2d 104, 105 (Tex. App.--San Antonio 1987, no writ) (upheld substituted service at address where defendant's children lived and where it was shown that other communications had reached defendant, conflicting evidence whether defendant was at that address). Crawford's telephone conversation with the constable showed that she was aware of the attempted service and gave the deputy good reason to believe that her daughter-in-law had communicated to Crawford that he was seeking to serve her. See Magan, 727 S.W.2d at 105. Crawford refused to supply another address where she could be reached and was ambiguous about whether she had left the Denton County address permanently. Under these circumstances, Crawford received notice that was reasonably calculated to apprise her of the pendency of the suit and that satisfied due process. Walker, 828 S.W.2d 280. We overrule this portion of issue one. Defective Order Authorizing Substituted Service Crawford also contends that the court order authorizing substituted service was defective because it failed to specify the exact manner of substituted service; that is, it allowed the constable to choose between service by leaving process with a person over sixteen at the address or by attaching it to the door. Crawford relies on Rivers v. Viskozki, 967 S.W.2d 868, 869 (Tex. App.--Eastland 1998, no pet.). In Rivers, the order for substituted service allowed service by delivery of a copy of the citation and petition to anyone over sixteen at the usual place of abode or "in any other manner which will be reasonably effective to give Defendant notice" but did not specify what "other manner" should be used. Id. The constable stated in the affidavit to secure substituted service that attaching a copy of the petition to the door would be reasonably effective to give notice, which the return of service showed was the method used. Id. at 869-70. However, the court held that the order had to specifically direct the constable as to how to serve the defendant, that is, specify the "other manner." Id. at 871. The court held that service was not in strict compliance with the rules. Id. A major concern of the court in Rivers was that it would not be possible to evaluate compliance with Rule 107 (2) concerning the return of service if the order authorizing service was not specific as to the exact method authorized. Id. at 870-71. Our case is distinguishable from Rivers. In our case, the order specified one of two alternative methods of service. The return indicated which alternative method was used; that method complied with a method prescribed in the order. Cf. Dolly v. Aethos Communications Sys., Inc., 10 S.W.3d 384, 388-89 (Tex. App.--Dallas 2000, no pet.) (service inadequate when face of return showed conflict as to method used, one of which was not authorized by order); Broussard v. Davila, 352 S.W.2d 753, 754 (Tex. App.--San Antonio 1961, no writ) (service inadequate because return showed method used did not comply with method detailed by court in order). At the least, we think the court has the power to enumerate two specific alternative methods of service as was done in this case. The return of service in this case shows compliance with one alternative authorized in the order; that is, service was accomplished by posting the citation and petition on Crawford's door. Accordingly, we overrule the second part of Crawford's first issue. Amount of Judgment In her second issue presented, appellant claims the judgment is incorrect because the amount of tax, penalty and interest is incorrect and because attorney's fees were improperly awarded based on affidavit evidence. We conclude that the damages were correctly calculated, but that the affidavit in support of attorney's fees was inadequate. Damages Appellant complains that the amount of tax due should have been calculated from a letter generated by the Internal Revenue Service concerning the estate, which she attached to her brief as an exhibit. However, in a restricted appeal, error must appear from the face of the record. This letter is not part of the record and cannot form the basis for error. (3) A no-answer default judgment operates as an admission of the material facts alleged in the plaintiff's petition, except for unliquidated damages. Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 515, 516 (Tex. 1999); Arenivar v. Providian Nat'l Bank, 23 S.W.3d 496, 497 (Tex. App.--Amarillo 2000, no pet.). If the claim is liquidated and proved by an instrument in writing, the court assesses damages. Tex. R. Civ. P. 241; Arenivar, 23 S.W.3d at 497-98; Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 79 (Tex. App.--Corpus Christi 1992, writ denied). A claim is liquidated if the amount of damages can be accurately calculated from (1) the factual, as opposed to conclusory, allegations in the petition, and (2) an instrument in writing. Arenivar, 23 S.W.3d at 498; Pentes, 840 S.W.2d at 79. The record contains the Comptroller's certificate of delinquency. The certificate calculates the amount of tax, penalty and interest due on a specific date, as well as the amount of interest accruing daily after the fixed date. The delinquency certificate is an adequate basis to permit the damages to be calculated accurately. Judgment was properly rendered on the liquidated amount. (4) First Nat'l Bank v. Shockley, 663 S.W.2d 685, 688-89 (Tex. App.--Corpus Christi 1983, no writ). Attorney's Fees Crawford also complains that the affidavit in the record is insufficient to support the award of attorney's fees. Although it is possible that an affidavit can support the trial court's award of attorney's fees in a default judgment, the affidavit in this case does not meet the necessary standard. New, 3 S.W.3d at 517-18. In the affidavit in New, the attorney specified that he was a duly licensed attorney, that he was familiar with the usual and customary attorney's fees in the relevant county, and based on his knowledge of the services rendered, "which he detailed, " concluded that a $30,000 attorney fee was reasonable. Id. In contrast, in this case, the attorney did not state that he was familiar with the ususal and customary attorney's fees in the relevant county and did not specify the services performed. The affidavit states generally that the attorney has represented the State in similar collection cases and that taking into consideration the amount in controversy, the nature of the case, the pleadings and the hearing and appearances, in his opinion a reasonable attorney's fee would be $14, 600.00. The affidavit supplies no detail about those services, for example, the attorney's usual billing rate and amount of time involved, and is not adequate to allow the computation of a reasonable attorney's fee. See Woollett v. Matyastik, 23 S.W.3d 48, 52-53 (Tex. App.--Austin 2000, pet. denied) (evidence of fees insufficient: failed to detail work completed, state attorney's hourly fees or hours expended); cf. Central Tex. Micrographics v. Leal, 908 S.W.2d 292, 299 (Tex. App.--San Antonio 1995, no writ) (attorney's fees evidence should include hourly rate and hours expended); see generally Scott A. Brister, Proof of Attorney's Fees in Texas, 24 St. Mary's L.J. 313 (1993). Accordingly, we sustain that part of Crawford's second issue dealing with attorney's fees. Conclusion We hold that service was accomplished in strict compliance with the rules governing service and that the judgment awarded the correct amount of damages. We affirm the district-court judgment in those respects. We hold that the award of attorney's fees was erroneous and reverse the district-court judgment in that respect and remand the cause for further proceedings to calculate proper attorney's fees. Lee Yeakel, Justice Before Chief Justice Aboussie, Justices Kidd and Yeakel Affirmed in Part; Reversed and Remanded in Part Filed: May 31, 2001 Do Not Publish 1. The State also sued the Estate of Ruppert Craze; the default judgment taken against Crawford and the Estate, jointly and severally. The notice of appeal, however, names only Crawford as an appellant. Although Crawford attempts to raise an issue concerning personal jurisdiction over the Estate, because the Estate as an entity is not an appellant we do not consider issues concerning it. See Tex. R. App. P. 25.1(c) (party who seeks relief from trial court judgment must file notice of appeal), 25.1(f) (notice may be amended at any time before appellant's brief filed). 2. A default judgment may not be granted until the citation with proof of service as ordered by the court has been on file for ten days. Tex. R. Civ. P. 107. 3. Appellee filed a motion to strike this letter, which is granted. 4. Even if Crawford had filed an answer, the Comptroller's Certificate of Delinquency is afforded a presumption of correctness that the taxpayer must disprove. Bullock v. Foley Bros. Dry Goods Corp., 802 S.W.2d 835, 839 (Tex. App.--Austin 1990, writ denied); Baker v. Bullock, 529 S.W.2d 279, 281 (Tex. Civ. App.--Austin 1975, writ ref'd n.r.e.). Attorney's Fees Crawford also complains that the affidavit in the record is insufficient to support the award of attorney's fees. Although it is possible that an affidavit can support the trial court's award of attorney's fees in a default judgment, the affidavit in this case does not meet the necessary standard. New, 3 S.W.3d at 517-18. In the affidavit in New, the attorney specified that he was a duly licensed attorney, that he was familiar with the usual and customary attorney's fees in the relevant county, and based on his knowledge of the services rendered, "which he detailed, " concluded that a $30,000 attorney fee was reasonable. Id. In contrast, in this case, the attorney did not state that he was familiar with the ususal and customary attorney's fees in the relevant county and did not specify the services performed. The affidavit states generally that the attorney has represented the State in similar collection cases and that taking into consideration the amount in controversy, the nature of the case, the pleadings and the hearing and appearances, in his opinion a reasonable attorney's fee would be $14, 600.00. The affidavit supplies no detail about those services, for example, the attorney's usual billing rate and amount of time involved, and is not adequate to allow the computation of a reasonable attorney's fee. See Woollett v. Matyastik, 23 S.W.3d 48, 52-53 (Tex. App.--Austin 2000, pet. denied) (evidence of fees insufficient: failed to detail work completed, state attorney's hourly fees or hours expended); cf. Central Tex. Micrographics v. Leal, 908 S.W.2d 292, 299 (Tex. App.--San Antonio 1995, no writ) (attorney's fees evidence should include hourly rate and hours expended); see generally Scott A. Brister, Proof of Attorney's Fees in Texas, 24 St. Mary's L.J. 313 (1993). Accordingly, we sustain that part of Crawford's second issue dealing with attorney's fees. Conclusion We hold that service was accomplished in strict compliance with the rules governing service and that the judgment awarded the correct amount of damages. We affirm the district-court judgment in those respects. We hold that the award of attorney's fees was erroneous and reverse the district-court judgment in that respect and remand the cause for further proceedings to calculate proper attorney's fees. Lee Yeakel, Justice Before Chief Justice Aboussie, Justices Kidd and Yeakel Affirmed in Part; Reversed and Remanded in Part Filed: May 31, 2001 Do Not Publish 1. The State also sued the Estate of Ruppert Craze; the default judgment taken against Crawford and the Estate, jointly and severally. The notice of appeal, however, names only Crawford as an appellant. Although Crawford attempts to raise an issue concerning personal jurisdiction over the Estate, because the Estate as an entity is not an appellant we do not consider issues concerning it. See Tex. R. App. P. 25.1(c) (party who seeks relief from trial court judgment must file notice of appeal), 25.1(f) (notice may be amended at any time before appellant's brief filed). 2. A default judgment may not be granted until the citation with proof of service as ordered by the court has been on file for ten days. Tex. R. Civ. P. 107. 3. Appellee filed a motion to strike this letter, which is granted. 4. Even if Crawford had filed an answer, the Comptroller's Certificate of Delinquency is afforded a presumpt