Deborah K. Chupp v. Clifton O. Chupp

Opinion

Opinion issued June 30, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00197-CV

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DEBORAH K. CHUPP, Appellant

V.

CLIFTON O. CHUPP, Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Case No. 54839

MEMORANDUM OPINION

          Deborah K. Chupp appeals a final divorce decree rendered by default.  The decree dissolves the marriage between her and Clifton O. Chupp and divides their marital property estate.  In two issues, Deborah asserts (1) the trial court lacked personal jurisdiction over her to render the default divorce decree because service of process was defective, and (2) the trial court abused its discretion in its division of the marital estate.

          We reverse and remand.

Procedural Background

          Clifton O. Chupp filed for divorce from his wife, Deborah K. Chupp, on November 5, 2009.  Clifton filed his first amended petition for divorce on November 9, 2009.  The record reflects that Clifton served Deborah with the first amended petition on November 10, 2009.  The return of service provides as follows:

OFFICER’S RETURN

Came to hand on November 10, 2009, at 4:34 P.M. and executed in Brazoria County, Texas by delivering to each of the within named parties, in person, a true copy of this CITATION together with the accompanying copy of the ORIGINAL PEITION [sic] FOR DIVORCE at the following time and places to-wit: [Deborah Chupp on November 11, 2009 at 5:12 p.m. at 719 N. Market Street, Brazoria, Texas 77422].

The return of service of citation was signed by Darla Brown of Brown Process Service and accompanied by Brown’s license number as issued by the Process Service Review Board. 

Deborah did not answer or otherwise respond to the petition.  On January 28, 2010, the trial court conducted a hearing on the divorce petition.  Clifton and his attorney appeared, but Deborah did not appear.  

          At the beginning of the hearing, the trial court stated on the record as follows:

Before we start the hearing, the Court will take judicial notice of the following: After reviewing the Court’s file, I found the First Amended Petition for Divorce file-marked November 9, 2009, filed by Mr. Chupp.  Prior to that there was an Original Petition for Divorce filed November 5, 2009, also by Clifton Chupp.  There is a return of service of citation on the First Amended Original Petition for Divorce, return of which is file-marked November 12, 2009, evidencing that Deborah Chupp was personally served with citation on November 10th, 2009, at 5:12 p.m. at 719 North Market Street in Brazoria, Texas.

          After reviewing the Court’s file, I do not see where she’s filed a response.  Her name was called three times by the bailiff of the court with no response.  I have an attorney—I have Mr. Chupp in the courtroom along with his attorney of record, Erinn Brown.

Clifton testified at the hearing, stating the grounds on which he sought divorce.  Clifton also provided testimony to support the division of the marital estate that he requested. 

At the conclusion of the hearing, the trial court rendered a final decree of divorce by default.  In the decree, the trial court granted Clifton a divorce from Deborah and divided the marital estate.  With regard to the property division, the trial court’s decree provides, inter alia, that each party is awarded retirement and bank accounts in that party’s name.  Clifton was also awarded funds in five other bank accounts.  Deborah was awarded one motor vehicle; Clifton was awarded three motor vehicles and a motorcycle.  Deborah was awarded a stained glass collection and family photographs.  Clifton was awarded nine pieces of real property. 

          Deborah became aware of the divorce and property division and filed this appeal.  In two issues, Deborah challenges the default divorce decree. 

Defective Service of Process

In her first issue, Deborah contends, “The trial court did not have personal jurisdiction over the appellant due to defective service.”  Among her arguments, Deborah points out that the return of service of the citation is not verified as required by Rule of Civil Procedure 107.[1]

Applicable Legal Principles

          Without proper service of citation, a trial court does not have in personam jurisdiction to render a default judgment against a non-answering defendant.  See Marrot Commc’ns., Inc. v. Town & Country P’ship, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).  Thus, Deborah’s claim that service of process was defective is properly cast as a challenge to the trial court’s personal jurisdiction over her.  See Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  Whether service was in strict compliance with the Rules of Civil Procedure is a question of law we review de novo.  See id. at 868–69; see also Titus v. Southern Cnty. Mut. Ins., No. 03–05–00310-CV, 2009 WL 2196041, at *2 (Tex. App.—Austin July 24, 2009, no pet.).  

When a defendant has not answered, a trial court acquires jurisdiction over that defendant solely on proof of proper service.  Furst, 176 S.W.3d at 868.  The party requesting service must ensure that proper service is accomplished and that the record reflects proper service.  Id. at 869 (citing TEX. R. CIV. P. 107 (prohibiting rendition of default judgment unless proof of proper service or process and return, whether in compliance with governing rules or as ordered by court, have been on file for 10 days), and Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)).  

A default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the Rules of Civil Procedure.  See Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007); McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied).  In contrast to the usual rule that all presumptions will be made in support of a judgment, there are no presumptions of valid issuance, service, and return of citation when examining a default judgment.  Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); McGraw-Hill, 823 S.W.2d at 416.  “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).  Failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect.  McGraw-Hill, 823 S.W.2d at 416.  Actual notice to a defendant, without proper service, is not sufficient to convey upon the trial court jurisdiction to render a default judgment.  Wilson, 800 S.W.2d at 836; McGraw-Hill, 823 S.W.2d at 417.

Rule of Civil Procedure 107 provides,

The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person.  The return of citation by an authorized person shall be verified. . . .

. . . .

No default judgment shall be granted in any cause until the citation, or process . . . with proof of service as provided by this rule . . . shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.

TEX. R. CIV. P. 107.

Rule 107 requires that “authorized persons” verify the return of citation in addition to signing it.[2]  Id.; see McGraw-Hill, 823 S.W.2d at 416.  A private process server is an “authorized person” and therefore must verify the return.  See Ameriquest Mortg. Co. v. Ashworth, No. 01-08-00544-CV, 2010 WL 1491954, at *2 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied); Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.—Texarkana 2004, no pet.).  The Rules of Civil Procedure do not specify the manner of verification required.  But this Court has previously stated, “Presumably, it is the same as verification by affidavit, as provided in other rules,” and concluded, “[A]n acknowledgment of an instrument before a notary public proves or verifies it for record.”  McGraw-Hill, 823 S.W.2d at 416; see Ameriquest Mortg. Co., 2010 WL 1491954, at *2 (applying McGraw-Hill definition); Seib v. Bekker, 964 S.W.2d 25, 28 (Tex. App.—Tyler 1997, no writ) (“[R]eturn of service of citation by a private process server . . . shall be sworn to by the private process server before a notary public and filed with the papers in the cause.”); see also Frazier, 144 S.W.3d at 149 (stating that “verified” under Rule 107 requires “some sort of an acknowledgment before a notary public”).

Analysis

Here, the return of service was signed by Darla Brown, a licensed private process server; thus, the return of service of citation was required to be acknowledged before a notary public.  See McGraw-Hill, 823 S.W.2d at 416; Ameriquest Mortg. Co., 2010 WL 1491954, at *3.  It was not so acknowledged.  Although Brown signed the return and indicated her license number, this was not sufficient to satisfy the requirements of Rule 107.  See Ameriquest Mortg. Co., 2010 WL 1491954, at *3.  Because the return of service does not comply with Rule 107, service of process in this case was invalid and of no effect.  See McGraw-Hill, 823 S.W.2d at 416; Ameriquest Mortg. Co, 2010 WL 1491954, at *4.  We conclude that the trial court did not have personal jurisdiction over Deborah at the time it signed the final divorce decree.  See Ameriquest Mortg. Co., 2010 WL 1491954, at *2–4; see also Furst, 176 S.W.3d at 868 (explaining that if defendant has not answered, trial court acquires jurisdiction over that defendant solely on proof of proper service).  Because no citation with “proof of service as provided by” Rule 107 to obtain personal jurisdiction was on file when the default judgment was granted, we hold that the trial court erred in rendering the default divorce decree.  See Tex. R. Civ. P. 107; Ameriquest Mortg. Co., 2010 WL 1491954, at *4; see also Hubicki, 226 S.W.3d at 408 (holding that default judgment rendered on defective service cannot stand); Seib, 964 S.W.2d at 28 (concluding affidavit that failed to verify facts relating to act of service did not strictly comply with Rules of Civil Procedure and judgment of trial court must be reversed).

We sustain Deborah’s first issue.[3]

Conclusion

          We reverse the judgment of the trial court and remand the case for further proceedings.[4] 

Laura Carter Higley

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

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[1]        Clifton filed a letter notifying this Court that he would not be filing a brief.  When an appellee does not file a brief, the appellate court may accept any factual statement made in appellant’s brief as true, if supported by record references.  See Tex. R. App. P. 38.1(g).  In the letter, Clifton also concedes that the return of service was not verified as required by Rule 107.  Clifton agrees with appellant that the default divorce decree should be reversed, and the case should be remanded to the trial court for a new trial. 

[2]           Rule 107 does not require an “officer” to verify the return of citation.  TEX. R. CIV. P. 107; Myan Mgmt. Group, L.L.C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 752 (Tex. App.—Dallas 2009, no pet.).  An “officer” for Rule 107 purposes is a sheriff or constable.  See Houston Pipe Coating Co. v. Houston Freightways, Inc., 679 S.W.2d 42, 45 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“When Rule 107 is read in conjunction with Rule 103, it is apparent that the ‘officer’ spoken of in Rule 107 is ‘the sheriff or any constable’ referred to in Rule 103.”); see also Cont’l Cas. Co. v. Guzman, No. 04-07-00589-CV, 2009 WL 136926, at *5 (Tex. App.—San Antonio Jan. 21, 2009, pet. denied) (recognizing that district clerks, like sheriffs and constables, are considered “officers,” who, by virtue of their offices, are not required to verify returns).

[3]           Because we conclude that service of process was defective and did not support the trial court’s personal jurisdiction over Deborah to render the default divorce decree, we need not address Deborah’s remaining issues.  See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

[4]        Rule of Civil Procedure 123 provides, “Where the judgment is reversed on appeal or writ of error for the want of service, or because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed.”  Thus, no new service on Deborah is required.  See Ameriquest Mortg. Co. v. Ashworth, No. 01-08-00544-CV, 2010 WL 1491954, at *4 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied); see also Cates v. Pon, 663 S.W.2d 99, 102 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (reversing default judgment because of invalid service but noting that no new service was necessary under Rule of Civil Procedure 123 because appellant had submitted himself to jurisdiction of trial court by appealing default judgment).