Clyde T. Nassif v. Bank of America NA

Affirmed and Memorandum Opinion filed March 30, 2004 Affirmed and Memorandum Opinion filed March 30, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00782-CV ____________ CLYDE T. NASSIF, Appellant V. BANK OF AMERICA, N.A., Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 787,870 M E M O R A N D U M   O P I N I O N Clyde T. Nassif, appellant, filed this appeal, pro se, to set aside the default judgment rendered against him. Bank of America, appellee, brought suit against Nassif on an overdue credit card account. On appeal, Nassif argues he did not receive notice of the action brought against him, and alternatively, that the default judgment was in error because his credit account with Bank of America had been closed. Nassif alleges that his last payment was made with a check marked, Apayment in full,@ and any outstanding debt was discharged when the bank cashed the check. We affirm. Nassif was served with substitute service pursuant to Rule 106 of the Texas Rules of Civil Procedure. However, Nassif did not file an answer. A default judgment was rendered against Nassif for $5,993.82 plus attorney fees of $1,997.94 on June 23, 2003. Nassif filed his notice of appeal on July 8, 2003. Citing the Supreme Court of the United States, Nassif asserts that his due process rights were violated when he did not receive notice of the pending suit. Mullane v. Cent. Hanover Bank, 339 U.S. 306 (1950). Specifically, Nassif argues that because Bank of America had his home address and telephone number, substitute service was unncessary. Due process only requires that the method used to serve a defendant be reasonably calculated, under the circumstances, to apprise him of the pending action. Peralta v. Heights Med. Ctr., 485 U.S. 80, 84 (1988). Rule 106 of the Rules of Civil Procedure authorizes substitute service upon a motion supported by an affidavit describing the unsuccessful attempts to reach the defendant at his home, workplace, or other location where he can be found. The court may authorize service in the following manner: (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). After repeated attempts to serve Nassif, Bank of America filed a motion for substituted service pursuant to Rule 106 of the Texas Rules of Civil Procedure. In support of its motion, Bank of America attached the sworn affidavit of its process server, which indicates compliance with Rule 106. Specifically, the process server=s affidavit details four different visits to Nassif=s apartment, verification of Nassif=s address with the apartment manager, and an attempt to contact Nassif via telephone, and the leaving of a telephone message. The trial court=s order permitted Bank of America to complete service by either delivering a true copy of the citation and original petition to a person over sixteen at Nassif=s listed address or by attaching the documents to the front door of Nassif=s apartment. The affidavit of service completed by the process server indicates that the documents were affixed to Nassif=s apartment door on April 19, 2003. Nassif fails to point to any evidence in the record refuting the facts recited in the affidavit. We acknowledge that a default judgment cannot withstand a direct attack where the defendant alleges that he was not served in strict compliance with the Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). AThere are no presumptions in favor of valid issuance, service, and return of citation@ in a direct attack. Uvalde Country Club v. Martin Linen Supply, Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam). The service of process is invalid and without effect if there is not strict compliance. Id. However, Nassif does not assert a failure to strictly comply with the Rules of Civil Procedure; he merely asserts that the use of substitute service was improper. Finding no evidence to support this allegation, we overrule Nassif=s first point of error. In his second point of error, Nassif argues that by writing upon his check Apayment in full@ he discharged any further obligation to Bank of America under the principles of accord and satisfaction. The defense of accord and satisfaction requires Aa new contract, express or implied, in which the parties agree to the discharge of the existing obligation by means of the lesser payment tendered and accepted.@ Jenkins v. Beck, 449 S.W.2d 454, 455 (Tex. 1969). A claim may, under some circumstances, be impliedly discharged under the defense of accord and satisfaction where the person against whom a claim is asserted makes payment with an instrument, i.e., a check, that contains Aa conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim,@ and such instrument is accepted, i.e., cashed or deposited, by the claimant. Tex. Bus. & Com. Code Ann. ' 3.311(b) (Vernon 2002). However, accord and satisfaction is an affirmative defense and must be supported by evidence whether express or implied. Hunt, Hopkins & Mitchell, Inc. v. Facility Ins. Corp., 78 S.W.3d 564, 568 (Tex. App.CAustin 2002, pet. denied). Here, the check that allegedly contains the notation Apayment in full@ was never introduced into evidence. Accordingly, there is no evidence, express or implied, to support Nassif=s affirmative defense which is raised for the first time on appeal. Nassif=s second point of error is overruled. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed March 30, 2004. Panel consists of Justices Yates, Hudson, and Fowler.