David Christopher McCoy v. Lorna Scott McCoy

• Court: Court of Appeals of Texas
• Decided: November 15, 2018
• Docket: 02-17-00275-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-17-00275-CV ___________________________

DAVID CHRISTOPHER MCCOY, Appellant

V.

LORNA SCOTT MCCOY, Appellee

On Appeal from the 324th District Court Tarrant County, Texas Trial Court No. 324-607511-16

Before Meier, Gabriel, and Kerr, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

In this restricted appeal, appellant David Christopher McCoy challenges the

trial court’s no-answer default divorce decree. David raises three issues: (1) the default

judgment is void and must be set aside because appellee Lorna Scott McCoy failed to

serve him in strict compliance with the rules governing service of process; (2) the

evidence is legally insufficient to support the trial court’s child-support award; and

(3) the trial court erred by ordering Scott to pay Lorna’s attorney’s fees. Because

Lorna failed to serve David in strict compliance with civil-procedure rule 107, we will

reverse and remand.

I. Background

David and Lorna married in April 2007 and had a son that fall. Lorna filed for

divorce in November 2016. The trial-court clerk issued citation on January 12, 2017.

The citation’s return of service states that a process server served David on January

14, 2017, but the return is neither verified nor signed under penalty of perjury. The

citation was filed with the trial-court clerk on January 18, 2017, and after David failed

to answer or otherwise appear, the trial court signed a default divorce decree on

February 13, 2017.

On May 9, 2017, David filed a verified petition for bill of review. In that

petition, David admitted that he had been served with the divorce petition but “was

unaware that he had to file an answer to avoid a default order and was under the

2 assumption that he would be notified of a court date.” He also complained that he did

not receive notice of the divorce decree until more than 30 days after the trial court

signed the decree because both the certificate of last known address that Lorna had

filed and the decree listed his address incorrectly. The trial court denied David’s bill of

review on July 27, 2017. David did not appeal from that denial.

On August 10, 2017, David timely filed a notice of restricted appeal from the

February 13, 2017 decree. See Tex. R. App. P. 26.1(c). About a month later, Lorna

moved the trial court for leave to file an amended citation. The trial court granted the

motion, and on September 22, 2017, Lorna filed an amended citation with a verified

return of service.

II. Discussion

To prevail in his restricted appeal, David must show that (1) he filed his notice

of appeal within six months after the complained-of judgment or order was signed;

(2) he was a party to the underlying suit but did not participate in the hearing that

resulted in the complained-of judgment; (3) he did not timely file a postjudgment

motion, request findings of fact and conclusions of law, or file a notice of appeal

within the time permitted by appellate-procedure rule 26.1(a); and (4) the complained-

of error is apparent from the face of the record. See Tex. R. App. P. 26.1(c), 30; Ins.

Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); Mandel v. Lewisville ISD,

445 S.W.3d 469, 474 (Tex. App.—Fort Worth 2014, pet. denied).

3 Here, David undisputedly satisfied the first two elements. We address the third

and fourth elements in turn.

A. David did not timely file a postjudgment motion.1

Lorna argues that David’s bill of review was the equivalent of a timely filed

new-trial motion because (1) he admitted that he was served and failed to answer or

appear but complained that he did not timely receive notice of the decree, and (2) the

petition was transferred to and heard by the trial judge that signed the decree. Thus,

Lorna asserts, because David timely filed a postjudgment motion in the trial court, he

cannot bring this restricted appeal. We disagree.

First, a bill of review is not a postjudgment motion. It seeks to set aside a

judgment that is no longer appealable or subject to a motion for new trial. Tex. R. Civ.

P. 329b(f); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010), cert. denied,

562 U.S. 1180 (2011); Alaimo v. U.S. Bank Tr. Nat’l Ass’n, 551 S.W.3d 212, 214 (Tex.

App.—Fort Worth 2017, no pet.). Even though a bill of review directly attacks a

judgment rendered in a particular case, it is an independent, separate cause of action

filed under a different cause number. In re J.J., 394 S.W.3d 76, 81 (Tex. App.—El Paso

2012, no pet.). But because it directly attacks a judgment rendered by a specific court,

1 It is undisputed that David did not request findings of fact and conclusions of law or file a notice of appeal within the time permitted by appellate-procedure rule 26.1(a). See Tex. R. App. P. 30.

4 the bill of review must be brought in that court, and only that court has jurisdiction

over the bill. 2 Frost Nat’l Bank, 315 S.W.3d at 504.

And second, even if we were to construe David’s bill of review as a new-trial

motion, it was untimely. David claimed in his bill of review that he did not receive

actual notice of the decree until more than 30 days after it was signed, but he never

moved the trial court to extend his postjudgment deadlines. See Tex. R. Civ. P.

306a(4), (5); see also Tex. R. App. P. 4.2. Thus, David’s deadline to move for a new trial

was March 15, 2017 (30 days after the trial judge signed the decree on February 13,

2017). See Tex. R. Civ. P. 329b(a). Accordingly, even if David’s May 9, 2017 bill of

review was the substantive equivalent of a new-trial motion, it was untimely and

therefore does not bar David from bringing a restricted appeal. See Tex. R. App. P.

30 (providing that a party may bring a restricted appeal if he did not timely file a

postjudgment motion); cf. Mech v. GXA Network Sols., No. 05-16-00270-CV,

2017 WL 3634275, at *6 (Tex. App.—Dallas Aug. 24, 2017, no pet.) (mem. op.)

(concluding that electronically filed new-trial motion that trial-court clerk rejected

because filing fee was not paid was not a timely filed postjudgment motion and

therefore did not bar restricted appeal).

2 That court may, however, transfer the bill of review to another court, and the transferee court has authority to determine the bill’s merits. See J.J., 394 S.W.3d at 82.

5 B. Error is apparent from the face of the record.

In a restricted appeal, the face of the record consists of all papers on file in the

appeal, including any reporter’s record, along with all papers on file with the trial court

at the time the judgment was entered. See Norman Commc’ns v. Tex. Eastman Co.,

955 S.W.2d 269, 270 (Tex. 1997). Thus, we may not consider evidence in a restricted

appeal that was not before the trial court when it rendered judgment. Clamon v.

DeLong, 477 S.W.3d 823, 825 (Tex. App.—Fort Worth 2015, no pet.). In his first

issue, David contends that the record shows error on its face and the default

judgment must be set aside because the return of service was not verified as civil-

procedure rule 107 requires. See Tex. R. Civ. P. 107(e).

The return of service is not a trivial document. Primate Constr., Inc. v. Silver,

884 S.W.2d 151, 152 (Tex. 1994). Absent proper service of process, a trial court does

not have personal jurisdiction to render a default judgment against a non-answering

defendant. See Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.]

2005, no pet.); see also In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (“Personal

jurisdiction, a vital component of a valid judgment, is dependent ‘upon citation issued

and served in a manner provided for by law.’” (quoting Wilson v. Dunn, 800 S.W.2d

833, 836 (Tex. 1990))). In reviewing a default judgment on restricted appeal, we do

not presume that citation was validly issued, served, or returned. Primate Constr.,

884 S.W.2d at 152. If the record does not show strict compliance with the civil-

procedure rules relating to issuance, service, and return of citation, then attempted

6 service is invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co.,

690 S.W.2d 884, 885 (Tex. 1985); Mandel, 445 S.W.3d at 474. “Strict compliance with

the rules governing service of citation is mandatory if a default judgment is to

withstand an attack on appeal.” Lejeune, 297 S.W.3d at 256. “Failure to comply with

these rules constitutes error on the face of the record.” Id.; see Furst, 176 S.W.3d at

868 (stating that “[l]ack of proof of proper service constitutes error on the face of the

record that defeats the trial court’s jurisdiction”).

Rule 107 requires that “[t]he officer or authorized person who serves or

attempts to serve a citation must sign the return.” Tex. R. Civ. P. 107(e). But “[i]f the

return is signed by a person other than a sheriff, constable, or the clerk of the court,

the return must either be verified or be signed under penalty of perjury.” Id.

“‘Verified,’ in the context of rule . . . 107, ‘requires some sort of acknowledgment

before a notary public.’” Gillmore v. Gbenjen, No. 02-17-00015-CV, 2017 WL 4683832,

at *2 (Tex. App.—Fort Worth Oct. 19, 2017, no pet.) (mem. op.) (quoting Frazier v.

Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.—Texarkana 2004, no pet.)). Alternatively,

a return signed under penalty of perjury must contain the statement set out in rule

107 in substantially the same form. Tex. R. Civ. P. 107(e). Failure to affirmatively

show strict compliance with rule 107 renders attempted service invalid. Uvalde Country

Club, 690 S.W.2d at 885.

The original return of service here is signed by Roger Allen, a process server,

and shows that Allen served David with citation and the original petition at 3300 East

7 Broad Street, Mansfield, Tarrant County, Texas, at 1:40 p.m. on January 14, 2017.

Nothing in the record indicates that Allen is a sheriff, constable, or court clerk.3 See

Ameriquest Mortg. Co. v. Ashworth, No. 01-08-00544-CV, 2010 WL 1491954, at *3 (Tex.

App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem. op.) (reasoning that a

private process server is an “authorized person” under rule 107). So, to comply with

rule 107, the return must have been either verified or signed under penalty of perjury,

but neither was done. The return has spaces for a notary’s signature and other

relevant information, but they were left blank. The return also lacks the perjury

statement as contemplated by rule 107(e).

Lorna counters that she cured any deficiencies in the original return of service

by amending it. Unlike the original return, the amended return is notarized. Lorna

argues that because the amended return relates back and is regarded as filed when she

filed the original return, service was valid and there is no error on the face of the

record. See LEJ Dev. Corp. v. Sw. Bank, 407 S.W.3d 863, 868 (Tex. App.—Fort Worth

2013, no pet.) (recognizing that when a return is amended under rule 118, the

amended return relates back and is regarded as filed when the original return was

filed).

Below the paragraph containing the information related to Allen’s receipt of 3

the citation and his service of the citation on David, there is a line beginning with the phrase “Authorized Person / Constable / Sheriff” before a blank in which Allen wrote his name. The words “Constable” and “Sheriff” are struck through.

8 The civil-procedure rules allow for liberal amendment of the return of service

to show the true facts of service:

At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Tex. R. Civ. P. 118. A trial court may enter a postjudgment order granting amendment

of a citation return under rule 118 while the court retains plenary power. See

Higginbotham v. Gen. Life & Acc. Ins. Co., 796 S.W.2d 695, 696 (Tex. 1990) (holding

recitation in order denying defendants’ new-trial motions after default judgment and

while trial court retained plenary power indicating service was proper was tantamount

to order amending citation return under rule 118 reflecting proper service); LEJ Dev.

Corp., 407 S.W.3d at 868 (recognizing Higginbotham’s holding); Dawson v. Briggs,

107 S.W.3d 739, 744–48 (Tex. App.—Fort Worth 2003, no pet.) (relying on

Higginbotham to hold that return was properly amended while trial court retained

plenary power although defendant had already perfected appeal from default

judgment).

Here, however, because David did not timely file any postjudgment motions,

the trial court’s plenary power over the divorce decree expired on March 15,

2017 (30 days after the trial judge signed the decree on February 13, 2017). See Tex. R.

Civ. P. 329b(d), (e). But Lorna did not move to amend the citation until September

11, 2017, nearly six months later and well after the trial court’s plenary power had

9 expired. See Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 753 (Tex. App.—Fort Worth

2003, no pet.) (Livingston, J., concurring) (concluding that appellee’s rule 118 motion

was untimely because it was filed after the trial court’s plenary power had expired).4

Because the trial court no longer had plenary power over the decree, it could not grant

Lorna leave to amend the service return. See Higginbotham, 796 S.W.2d at 696; Dawson,

107 S.W.3d at 744–48; Vespa, 98 S.W.3d at 753 (Livingston, J., concurring). And

Lorna could not amend the citation without court approval. See Barker CATV Constr.,

Inc. v. Ampro, Inc., 989 S.W.2d 789, 793–94 (Tex. App.—Houston [1st Dist.] 1999, no

pet.). Accordingly, the amendment is of no effect.5

4 In Vespa, this court cited the supreme court’s decision in Primate for the proposition that rule 118 allows for amending the service return at any time up until the trial court enters judgment and that once the trial court enters judgment, it cannot authorize an amendment to the return. See Vespa, 98 S.W.3d at 752–53 (citing Primate, 884 S.W.2d at 153). Relying on this proposition, the majority in Vespa held that the amended return in that case was untimely because the appellee moved to amend the return after the trial court had entered the default judgment. Id. at 753. The concurrence criticized the majority for relying on that portion of Primate, concluding that it was “mere dicta” because the “issue of whether someone had effectively and timely filed for an amendment to the return was simply not before the court.” Id. at 753 (Livingston, J., concurring). Another panel of this court has echoed the Vespa concurrence’s critique of Primate and has rejected Primate’s statements regarding return amendments as dicta and as conflicting with the supreme court’s holding in Higginbotham. See Dawson, 107 S.W.3d at 746–47. 5 Lorna points to two cases in support of her assertion that a trial court can permit a party to amend a return at any time. See Gonzalez v. Tapia, 287 S.W.3d 805, 806–07, 808–09 (Tex. App.—Corpus Christi 2009, pet. denied) (holding trial court properly allowed citation return to be amended to add verification a year after default judgment); Walker v. Brodhead, 828 S.W.2d 278, 281–82 (Tex. App.—Austin 1992, writ denied) (holding that rule 118 permitted trial court to allow citation return to be amended to add verification 22 months after default judgment). But both of these

10 Lorna also argues that because David judicially admitted in his bill of review

that he was served with the divorce petition at his place of employment and that

“[t]he invalidity of the judgment does not appear on the face of the record,” he has

waived any complaint that service was defective. But David’s bill of review and

restricted appeal are alternative pleadings, and factual assertions in alternative

pleadings are not judicial admissions. See In re Burlington Coat Factory Warehouse of

McAllen, Inc., 167 S.W.3d 827, 829 n.2 (Tex. 2005) (orig. proceeding); Havens v. Ayers,

886 S.W.2d 506, 511 (Tex. App.—Houston [1st Dist.] 1994, no writ). David therefore

has not waived any complaint regarding defective service.

Because the service return in this case did not strictly comply with rule 107,

error is apparent on the face of the record, and service on David was invalid. See

Gillmore, 2017 WL 4683832, at *2 (holding return that was not verified or signed under

penalty of perjury was error on the face of the record (citing Uvalde Country Club,

690 S.W.2d at 885)); see also Higginbotham, 796 S.W.2d at 697 (“In [restricted appeals]

there is no record of service other than the citation return, and its recitations, taken as

true, must show strict compliance with service requirements.”). The trial court

therefore never acquired personal jurisdiction over David, and the default judgment is

cases involved appeals from bills of review where the trial court permitted the amendment while the bill of review was pending in the trial court. See Gonzalez, 287 S.W.3d at 806–07; Walker, 828 S.W.2d at 279, 281. Here, Lorna did not move to amend the citation return until September 11, 2017, well after the trial court denied David’s bill of review on July 27, 2017. And David is not appealing the denial of his bill of review. Thus, Gonzalez and Walker are inapposite.

11 void. See Wilson, 800 S.W.2d at 836; Mandel, 445 S.W.3d at 474. Accordingly, we

sustain David’s first issue, and because it is dispositive, we do not reach his remaining

issues. See Tex. R. App. P. 47.1.

Conclusion

Having sustained David’s first issue, we reverse the trial court’s default divorce

decree and remand this case to the trial court for further proceedings. See Tex. R.

App. P. 43.2(d).

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Delivered: November 15, 2018