Hd Mechanical, Inc. v. Enriquez Enterprises, Inc.

NUMBER 13-05-353-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG HD MECHANICAL, INC., Appellant, v. ENRIQUEZ ENTERPRISES, INC., Appellee. On appeal from the 107th District Court of Cameron County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Castillo Memorandum Opinion by Chief Justice Valdez This is a restricted appeal in which appellant, HD Mechanical, Inc., seeks to set aside a default judgment based on defective service of process. In four points of error, appellant contends the trial court erred in rendering default judgment against it because the record does not affirmatively demonstrate strict compliance with the Texas Rules of Civil Procedure regarding issuance, service, and return of citation. See Tex. R. Civ. P. 103, 106. The underlying action involves an action for damages for breach of contract brought by appellee, Enriquez Enterprises, Inc., against appellant. For the reasons that follow, we reverse and remand. See Tex. R. App. P. 43.2. I. Background Enriquez sued HD Mechanical for breach of a subcontract agreement. A private process server, Dave Eckstein, was enlisted by Enriquez. Eckstein made four unsuccessful attempts to serve HD Mechanical on the following dates: November 18, 2004, November 22, 2004, and twice on November 23, 2004. Eckstein filed an affidavit of due diligence with the court on November 30, 2004, to show he made attempts sufficient to qualify Enriquez for substitute service. Enriquez filed a motion for substitute service with the court on December 3, 2004, and an order for substitute service was issued on December 9, 2004. The order authorized service by delivery of citation and the petition to anyone over 16 years of age or attaching a copy to the front entry way. The officer's return, filed January 14, 2005, recites that service was made on December 20, 2004 "as per T.R.C.P. posting." Enriquez filed a motion for default judgment on February 14, 2005, and the court signed its order of default judgment on the same date. II. Standard of Review To prevail on a restricted appeal, HD Mechanical must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of, did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and did not file a notice of appeal within the time permitted by rule 26.1(a); and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(a), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The face of the record, for purposes of a restricted appeal, consists of all the papers on file in the appeal, including the statement of facts. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991). A default judgment cannot withstand a direct attack by a defendant who shows that it was not served in strict compliance with the Texas Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Medeles v. Nunez, 923 S.W.2d 659, 662 (Tex. App.-Houston [1st Dist.] 1996, writ denied). The record must reflect strict compliance with the rules of civil procedure respecting the issuance of citation, the manner and mode of service, and the return of process. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 263 (Tex. App.-Texarkana 1992, writ dism'd). If strict compliance is not affirmatively shown, the service of process is invalid and has no effect. Uvalde Country Club v. Martin Linen Supply, 690 S.W.2d 884 (Tex. 1985); Harmon Truck Lines, 836 S.W.2d at 263. The Medeles court interpreted strict compliance to mean "literal compliance" with the rules governing issuance, service, and return of citation. Medeles, 923 S.W.2d at 662. When a default judgment is attacked by way of restricted appeal, we make no presumptions in favor of valid issuance, service, and return of citation. See Uvalde Country Club, 690 S.W.2d at 885; G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 816 (Tex. App.-Houston [1st Dist.] 1996, no writ); McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.-Houston [1st Dist.] 1992, writ denied). 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). III. Analysis By its first issue, appellant asserts that substituted service was not appropriate because the initial attempts at service were not conducted by a person authorized to perform service; thus, appellee did not comply with the requirements of rule 106(b) for obtaining substitute service. Appellant contends that the failed attempts at service in this case (on November 18, 22, and 23, 2004) should not be considered because the attempts were made prior to the process server being authorized to serve citation in this cause. We agree. Rule 103 provides in relevant part: Process-including citation and other notices, writs, orders, and other papers issued by the court-may be served anywhere 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, or (3) any person certified under order of the Supreme Court. Tex. R. Civ. P. 103. Rule 106(b) of the Texas Rules of Civil Procedure states: 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 (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). Appellant alleges the private process server was not authorized to serve citation until November 30, 2004, when the court authorized the process server to do so. See Tex. R. Civ. P. 103(2). Therefore, appellant contends, the attempts prior to November 30 cannot be considered for purposes of rule 106(b). Appellant further notes that although Eckstein was finally authorized to serve on November 30, his subsequent motion for substituted service did not comply with rule 106(b). Appellee counters that Eckstein was authorized to serve process at the time that service was made on December 20, 2004. The record reflects that the trial court authorized Eckstein to serve process by either (1) hand delivery or (2) certified mail on November 30, 2004. See Tex. R. Civ. P. 103, 106(a). The record also reflects that, in support of his motion to be authorized to serve process, Eckstein attached an affidavit of due diligence delineating four failed attempts at service prior to November 30. However, because Eckstein was not authorized to serve process prior to November 30, we do not take these attempts into consideration for 106(b) purposes. See Tex. R. Civ. P. 103, 106(b). Therefore, because there were no failed attempts at service after Eckstein was authorized, appellee did not meet the requirements of rule 106(b). In addition, appellee's motion for substitute service failed to include the affidavit required by rule 106(b). The face of the record reflects that appellant did not comply with the rules for service of citation. Accordingly, appellant's first issue is sustained. Given our disposition, we need not address appellant's remaining issues. See Tex. R. App. P. 47.1. We reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion. _______________________ ROGELIO VALDEZ, Chief Justice Dissenting memorandum opinion by Justice Castillo. Memorandum Opinion delivered and filed this the 10th day of August, 2006.