David Green v. Tameika Evans and David Evans, Individually and as next friend of D. E., a minor child, T. E., a minor child, U. E., a minor child, and D. E., a minor child, and Tatiana Evans

14-20-00054-CV

2021 | Cited 0 times | Court of Appeals of Texas | May 18, 2021

Reversed and Remanded and Memorandum Opinion filed May 18, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00054-CV

DAVID GREEN, Appellant

V.

TAMEIKA EVANS AND DAVID EVANS, INDIVIDUALLY AND AS NEXT FRIEND OF D.E., A MINOR CHILD, T.E., A MINOR CHILD, U.E., A MINOR CHILD, AND D.E., A MINOR CHILD, AND TATIANA EVANS, Appellees

On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2018-26231

M E M O R A N D U M O P I N I O N

In this restricted appeal, appellant David Green challenges a no-answer default judgment in favor of appellees Tameika Evans and David Evans, individually and as next friend of D.E., T.E., U.E., and D.E., minor children, and Tatiana Evans . Green contends in three issues that error is apparent on the face of the record because: (1) the return of service does not show strict compliance with Texas Rule of Civil Procedure 107; (2) the record does not establish that the citation was served on Green by a person authorized under Texas Rule of Civil Procedure 103; and (3) the service of citation by certified mail was not effected by the court clerk in violation of Texas Rule of Civil Procedure 103.

We agree that the record does not show strict compliance with Texas Rule of Civil Procedure 107; accordingly, error is apparent on the face of the present record. We reverse the default judgment and remand for further proceedings.

Background

According to the original petition, the Evans Family leased a home from Green in April 2016. The Evans Family claims that Green was aware of but did not disclose multiple hazardous conditions, including mold growth, roof leaks, consistent plumbing issues, and serious water intrusion.

During the lease term, the Evans Family repeatedly attempted to contact Green about ongoing maintenance. The family claims that there was little effort to resolve the issues.

In November 2016, Green notified the Evans Family that they must vacate the property within three days. The Evans Family sued Green and several other defendants on April 18, 2018, for fraud, negligence, breach of contract, Texas Deceptive Trade and Consumer Protection Act violations, and various other tort and statutory causes of action.

The record contains a citation and return of service purporting to indicate service on Green and other named defendants via certified mail. Green did not answer or otherwise respond to the suit. The Evans Family filed a motion for partial default judgment against Green, attaching, inter alia, an affidavit supporting an award of attorney s fees. After a hearing, the trial court signed a default judgment in favor, awarding the family nearly $50,000,000 in damages against Green late . Shortly after the judgment against Green was signed, the Evans Family non-suited all other defendants, and the trial court dismissed the claims against them without prejudice, making the default judgment against Green final.

Green filed a timely notice of restricted appeal. See Tex. R. App. P. 26.1(c), 30.

Analysis

To prevail in a restricted appeal, a party 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 suit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Alexander v. Lyn Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Martell v. Tex. Concrete Enter. Readymix, Inc., 595 S.W.3d 279, 281 (Tex. App. Houston [14th Dist.] 2020, no pet.); Harvestons Sec., Inc. v. Narnia Invs., Ltd., 218 S.W.3d 126, 129 (Tex. App. Houston [14th Dist.] 2007, pet. denied); Mansell v. Ins. Co. of the W., 203 S.W.3d 499, 500 (Tex. App. Houston [14th Dist.] 2006, no pet.). The construction of procedural rules is a legal question subject to de novo review. See Martell, 595 S.W.3d at 282; Garcia v. Tester, No.13-15-00498- CV, 2016 WL 4578405, at *2 (Tex. App. Corpus Christi-Edinburg Sept. 1, 2016, no pet.) (mem. op.). he only disputed issue is the final element: whether error appears on the face of the record.

reflect strict compliance with applicable service of citation requirements. See Ins.

Co. of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007); Martell, 595 S.W.3d at 282; Harvestons Sec., 218 S.W.3d at 132-33. In reviewing a default judgment in a restricted appeal, an appellate court does not presume valid issuance, service, and return of citation. Hubicki, 226 S.W.3d at 407; Martell, 595 S.W.3d at 282; Harvestons Sec., 218 S.W.3d at 129. If the record does not show strict compliance with the rules governing citation, the service is invalid and in personam jurisdiction cannot be established. See Martell, 595 S.W.3d at 282; Mansell, 203 S.W.3d at 501. Moreover, virtually any deviation from these rules is sufficient to set aside the default judgment. Martell, 595 S.W.3d at 282; Mansell, 203 S.W.3d at 501. If proper service is not affirmatively shown in the record, then error exists on the face of the record and a default judgment cannot stand. Harvestons Sec., 218 S.W.3d at 134.

Green asserts, among other things, that error is apparent on the face of the record because the return of service does not show strict compliance with Texas Rule of Civil Procedure 107. See Tex. R. Civ. P. 107. This rule provides among other things that (1) the officer or authorized person executing the citation must complete a return of service, (2) the return of service must include the name of the person who served the process and, if the person is a process server certified under order of the Supreme Court, the identification number and the expiration date of the certification, (3) the officer or authorized person who serves the citation must sign the return, and (4) if the return is signed by a person other than a sheriff, constable, or court clerk, the return must be either verified or signed under penalty of perjury. See Tex. R. Civ. P. 107. If any of these requirements are not met, the return of citation is fatally defective and will not support a default judgment under direct attack. Harvestons Sec., 218 S.W.3d at 134. Our record fails to show strict compliance with rule 107 in several respects. The filed return of service does not include the name; it does not show that it was signed by a sheriff, constable, or court clerk; 1 and it is neither verified nor signed under penalty of perjury. See Tex. R. Civ. P. 107(b)(9), (e). These deficiencies are fatal to effective service. See, e.g., Lejeune, 297 S.W.3d at 256 (explaining t Martell, 595 S.W.3d at 282 (date error in return of

service constitutes error on the face of the record); Harvestons Sec., 218 S.W.3d at f [r .

In arguing the judgment is not reversible, the Evans Family relies on P&H Transportation, Inc. v. Robinson, 930 S.W.2d 857, 859 (Tex. App. Houston [1st Dist.] 1996, writ denied). In Robinson, our sister court in Houston determined that Id. Id. Here, in contrast, nothing in our record shows that the process server

was authorized and rather than requesting that the court clerk provide for service. Thus, this case does

Finally, the Evans Family argues that Green does not deny that he received the original petition or that the signature on the return of service belongs to him. However, it actual notice to a defendant, without proper

1 The Civil Process Request Forms contained in our record indicate that service was to be -Up showing that the attorney picked up these process papers on April 30, 2018. service, is not sufficient to convey upon the court jurisdiction to render default Wyatt v. Deal, 800 S.W.2d 833, 836-37 (Tex. 1990); see also Worldwide Autotainment, Inc. v. Galloway, No. 14-17-00761-CV, 2019 WL 386056, at *3-4 (Tex. App. Houston [14th Dist.] Jan. 13, 2019, no pet.) (mem. op.).

In sum, error appears on the face of the record because r were not met. Thus, the trial court did not acquire personal jurisdiction over Green

issue. 2

Conclusion

Having concluded that the face of the record does not demonstrate strict compliance with Texas Rule of Civil Procedure 107, we reverse the default judgment and remand for proceedings consistent with this opinion.

/s/ Kevin Jewell Justice

Panel consists of Justices Jewell, Bourliot, and Hassan.

2 See Tex. R. App. P. 47.1.

Reversed and Remanded and Memorandum Opinion filed May 18, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00054-CV

DAVID GREEN, Appellant

V.

TAMEIKA EVANS AND DAVID EVANS, INDIVIDUALLY AND AS NEXT FRIEND OF D.E., A MINOR CHILD, T.E., A MINOR CHILD, U.E., A MINOR CHILD, AND D.E., A MINOR CHILD, AND TATIANA EVANS, Appellees

On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2018-26231

M E M O R A N D U M O P I N I O N

In this restricted appeal, appellant David Green challenges a no-answer default judgment in favor of appellees Tameika Evans and David Evans, individually and as next friend of D.E., T.E., U.E., and D.E., minor children, and Tatiana Evans . Green contends in three issues that error is apparent on the face of the record because: (1) the return of service does not show strict compliance with Texas Rule of Civil Procedure 107; (2) the record does not establish that the citation was served on Green by a person authorized under Texas Rule of Civil Procedure 103; and (3) the service of citation by certified mail was not effected by the court clerk in violation of Texas Rule of Civil Procedure 103.

We agree that the record does not show strict compliance with Texas Rule of Civil Procedure 107; accordingly, error is apparent on the face of the present record. We reverse the default judgment and remand for further proceedings.

Background

According to the original petition, the Evans Family leased a home from Green in April 2016. The Evans Family claims that Green was aware of but did not disclose multiple hazardous conditions, including mold growth, roof leaks, consistent plumbing issues, and serious water intrusion.

During the lease term, the Evans Family repeatedly attempted to contact Green about ongoing maintenance. The family claims that there was little effort to resolve the issues.

In November 2016, Green notified the Evans Family that they must vacate the property within three days. The Evans Family sued Green and several other defendants on April 18, 2018, for fraud, negligence, breach of contract, Texas Deceptive Trade and Consumer Protection Act violations, and various other tort and statutory causes of action.

The record contains a citation and return of service purporting to indicate service on Green and other named defendants via certified mail. Green did not answer or otherwise respond to the suit. The Evans Family filed a motion for partial default judgment against Green, attaching, inter alia, an affidavit supporting an award of attorney s fees. After a hearing, the trial court signed a default judgment in favor, awarding the family nearly $50,000,000 in damages against Green late . Shortly after the judgment against Green was signed, the Evans Family non-suited all other defendants, and the trial court dismissed the claims against them without prejudice, making the default judgment against Green final.

Green filed a timely notice of restricted appeal. See Tex. R. App. P. 26.1(c), 30.

Analysis

To prevail in a restricted appeal, a party 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 suit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Alexander v. Lyn Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Martell v. Tex. Concrete Enter. Readymix, Inc., 595 S.W.3d 279, 281 (Tex. App. Houston [14th Dist.] 2020, no pet.); Harvestons Sec., Inc. v. Narnia Invs., Ltd., 218 S.W.3d 126, 129 (Tex. App. Houston [14th Dist.] 2007, pet. denied); Mansell v. Ins. Co. of the W., 203 S.W.3d 499, 500 (Tex. App. Houston [14th Dist.] 2006, no pet.). The construction of procedural rules is a legal question subject to de novo review. See Martell, 595 S.W.3d at 282; Garcia v. Tester, No.13-15-00498- CV, 2016 WL 4578405, at *2 (Tex. App. Corpus Christi-Edinburg Sept. 1, 2016, no pet.) (mem. op.). he only disputed issue is the final element: whether error appears on the face of the record.

reflect strict compliance with applicable service of citation requirements. See Ins.

Co. of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007); Martell, 595 S.W.3d at 282; Harvestons Sec., 218 S.W.3d at 132-33. In reviewing a default judgment in a restricted appeal, an appellate court does not presume valid issuance, service, and return of citation. Hubicki, 226 S.W.3d at 407; Martell, 595 S.W.3d at 282; Harvestons Sec., 218 S.W.3d at 129. If the record does not show strict compliance with the rules governing citation, the service is invalid and in personam jurisdiction cannot be established. See Martell, 595 S.W.3d at 282; Mansell, 203 S.W.3d at 501. Moreover, virtually any deviation from these rules is sufficient to set aside the default judgment. Martell, 595 S.W.3d at 282; Mansell, 203 S.W.3d at 501. If proper service is not affirmatively shown in the record, then error exists on the face of the record and a default judgment cannot stand. Harvestons Sec., 218 S.W.3d at 134.

Green asserts, among other things, that error is apparent on the face of the record because the return of service does not show strict compliance with Texas Rule of Civil Procedure 107. See Tex. R. Civ. P. 107. This rule provides among other things that (1) the officer or authorized person executing the citation must complete a return of service, (2) the return of service must include the name of the person who served the process and, if the person is a process server certified under order of the Supreme Court, the identification number and the expiration date of the certification, (3) the officer or authorized person who serves the citation must sign the return, and (4) if the return is signed by a person other than a sheriff, constable, or court clerk, the return must be either verified or signed under penalty of perjury. See Tex. R. Civ. P. 107. If any of these requirements are not met, the return of citation is fatally defective and will not support a default judgment under direct attack. Harvestons Sec., 218 S.W.3d at 134. Our record fails to show strict compliance with rule 107 in several respects. The filed return of service does not include the name; it does not show that it was signed by a sheriff, constable, or court clerk; 1 and it is neither verified nor signed under penalty of perjury. See Tex. R. Civ. P. 107(b)(9), (e). These deficiencies are fatal to effective service. See, e.g., Lejeune, 297 S.W.3d at 256 (explaining t Martell, 595 S.W.3d at 282 (date error in return of

service constitutes error on the face of the record); Harvestons Sec., 218 S.W.3d at f [r .

In arguing the judgment is not reversible, the Evans Family relies on P&H Transportation, Inc. v. Robinson, 930 S.W.2d 857, 859 (Tex. App. Houston [1st Dist.] 1996, writ denied). In Robinson, our sister court in Houston determined that Id. Id. Here, in contrast, nothing in our record shows that the process server

was authorized and rather than requesting that the court clerk provide for service. Thus, this case does

Finally, the Evans Family argues that Green does not deny that he received the original petition or that the signature on the return of service belongs to him. However, it actual notice to a defendant, without proper

1 The Civil Process Request Forms contained in our record indicate that service was to be -Up showing that the attorney picked up these process papers on April 30, 2018. service, is not sufficient to convey upon the court jurisdiction to render default Wyatt v. Deal, 800 S.W.2d 833, 836-37 (Tex. 1990); see also Worldwide Autotainment, Inc. v. Galloway, No. 14-17-00761-CV, 2019 WL 386056, at *3-4 (Tex. App. Houston [14th Dist.] Jan. 13, 2019, no pet.) (mem. op.).

In sum, error appears on the face of the record because r were not met. Thus, the trial court did not acquire personal jurisdiction over Green

issue. 2

Conclusion

Having concluded that the face of the record does not demonstrate strict compliance with Texas Rule of Civil Procedure 107, we reverse the default judgment and remand for proceedings consistent with this opinion.

/s/ Kevin Jewell Justice

Panel consists of Justices Jewell, Bourliot, and Hassan.

2 See Tex. R. App. P. 47.1.

Case Summary:
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