Flanigan v. Schneider, No. 09-04-491 CV (TX 7/14/2005)
| Decision Date | 14 July 2005 |
| Docket Number | No. 09-04-491 CV.,09-04-491 CV. |
| Parties | JAMES FLANIGAN, d/b/a TRADE HOMES, Appellant, v. GILBERT SCHNEIDER, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 03-12-09221 CV.
REVERSED AND REMANDED.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
Appellant, James Flanigan, d/b/a Trade Homes (hereafter "Flanigan") brings this restricted appeal from a default judgment awarded in a deceptive trade practices case arising out of the sale of a mobile home. In three issues, Flanigan contends the award of double economic damages was improper, he was not properly served with petition and citation, and the defective service voids the default judgment as a matter of law. We hold the return of service filed of record is defective and cannot support a default judgment. In light of our disposition of Flanigan's second and third issues, we need not reach Flanigan's first issue. Accordingly, we reverse and remand.
In September 2003, Flanigan sold appellee Gilbert Schneider a mobile home for $14,500. In December 2003, Schneider filed a deceptive trade practices suit against Flanigan asserting misrepresentations and non-disclosures with respect to the sale of the mobile home. After attempts to serve Flanigan at his home and place of business were unsuccessful, Schneider filed a Motion for Alternative Service pursuant to Rule 106 of the Rules of Civil Procedure. Tex. R. Civ. P. 106. Two affidavits were attached to Schneider's motion that stated service was attempted by Joe Winter, a person authorized to serve process under Rule 103. See Tex. R. Civ. P. 103. The trial court granted the motion and authorized service of citation by either serving it to "any person over the age of 16 at James Flanigan's place of business" or by affixing it to Flanigan's door at his place of business. See Tex. R. Civ. P. 106(b). The return of service recites that Joe Winter served Flanigan with citation. The return of service that was filed was not verified. The trial court held a hearing at which Flanigan failed to appear. After hearing evidence on damages, the trial court granted a default judgment in favor of Schneider.
An appellant filing a restricted appeal must appeal within six months after the judgment was signed, must be a party to the suit, must not have participated in the hearing that resulted in the judgment, and must demonstrate that error appears on the face of the record. Laas v. Williamson, 156 S.W.3d 854, 857 () (citing Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (per curiam); Tex. R. App. P. 26.1(c), 30). Flanigan filed his first notice of appeal within six months after the judgment was signed, was a party to the suit, and did not participate in the default judgment hearing. Flanigan has satisfied the first three requirements for filing a restricted appeal.
The fourth requirement we review is whether reversible error is apparent from the record. Flanigan argues, in his second issue, that the return of service is defective because it was delivered to an address that does not exist, it is not stamped with a file date, and is not verified. Schneider concedes the return was not verified and argues the action should be remanded to the trial court for a trial on the merits.
Citation may be served by any sheriff or constable or other person authorized by law, or by any person of at least eighteen years of age authorized by law or by written court order. Tex. R. Civ. P. 103. The return of service must be endorsed by the officer or authorized person executing the citation. Tex. R. Civ. P. 107. If the return is by an authorized person, it must be verified. Tex. R. Civ. P. 107. This Court and others have held that Rule 107 requires an acknowledgment of the instrument before a notary public. Laas, 156 S.W.3d at 858; Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.-Texarkana 2004, no pet.); Armendariz v. Barragan, 143 S.W.3d 853, 855 (Tex. App.-El Paso 2004, no pet.); Carmona v. Bunzl Distribution, 76 S.W.3d 566, 569 (Tex. App.-Corpus Christi 2002, no pet.); Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex. App.-San Antonio 1999, no pet.); Garza v. Zavala, 905 S.W.2d 312, 313 (Tex. App.-El Paso 1995, no writ); McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.-Houston [1st Dist.] 1992, writ denied).
"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's Rule 106 order does not specify a manner of proving service different from that required under Rule 107, proof of service in accordance with Rule 107 is sufficient. Bautista, 9 S.W.3d at 251; Pao v. Brays Village East Homeowners Ass'n, Inc., 905 S.W.2d 35, 38 (Tex. App.-Houston [1st Dist.] 1995, no writ); Tex. R. Civ. P. 107.
"[S]trict compliance with the rules for service of citation [must] affirmatively appear on the record in order for a default judgment to withstand direct attack." Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). "There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment." Id. "Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the 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).
In this case, the trial court's Rule 106 order did not specify a manner of proving service materially different from that required under Rule 107; therefore, the return of service must be verified. See Bautista, 9 S.W.3d at 251; Tex. R. Civ. P. 107. The return of service shows Joe Winter, a citizen, served...
To continue reading
Request your trial