Devante McDole v. Bauer Landing Homeowners Association, Inc.

• Court: Court of Appeals of Texas
• Decided: December 12, 2024
• Docket: 01-23-00963-CV
• Status: Published

Opinion

Opinion issued December 12, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00963-CV ——————————— DEVANTE MCDOLE, Appellant V. BAUER LANDING HOMEOWNERS ASSOCIATION, INC., Appellee

On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2023-14511

MEMORANDUM OPINION

This appeal arises from a suit based on foreclosure of a lien for unpaid

assessments imposed on Devante McDole by Bauer Landing Homeowners

Association, Inc. After substituted service, the trial court granted a default judgment

in the Association’s favor, and McDole appeals. We affirm. BACKGROUND

On March 6, 2023, the Association sued McDole to collect unpaid

homeowners’ assessments. McDole owned property located at 20922 Bauer Creek

Drive in Hockley, Harris County, Texas. The property is part of Bauer Landing, a

community subject to homeowners’ assessments as stated in a Declaration recorded

in the real property records. The Declaration provides for recovery of assessments,

interest, attorney fees, and other costs associated with collecting delinquent

assessments.1

McDole was notified that he owed past due payments to the Association based

on his failure to pay assessments. The Association filed a notice of lien, and a letter

was sent to McDole, notifying him that the notice of lien would be filed. McDole

owed $2,909.98 in unpaid assessments and charges through February 1, 2023,

$4,968.00 in attorney’s fees, and $2,509.06 in expenses/costs.

Personal service on McDole at his usual place of abode was attempted and

unsuccessful on at least six occasions.2 The Association’s counsel moved for

substituted service, and the court authorized such service. In an order entered on

1 The applicable provision of the Declaration provides: “The said interest, attorney fees and costs of collection are added to and made a part of the property owners assessment account. All sums assessed by Plaintiff and not paid by a property owner shall bear interest at the rate provided for in the Declaration or such other rate as allowed by law.” 2 Based upon public records information introduced into the record by the Association in the trial court, McDole’s usual place of abode was 10400 Fossil Hill Drive in Fort Worth, Texas from September 2020 to present. 2 September 11, 2023, the trial court authorized substituted service on McDole by (1)

delivering a copy of the citation, petition, and trial court’s order to anyone over

sixteen years of age at McDole’s home located on Fossil Hill Drive or (2) attaching

a copy of the citation, petition and trial court’s order to the home’s front door, along

with other additional requirements.

Pursuant to the trial court’s order, McDole was served on September 22,

2023, at 12:17 pm, with a citation, petition, and the trial court’s order. The service

of process stated that it was delivered by securely attaching the documents to the

front entry of McDole’s home on Fossil Hill Drive. The Affidavit of Service

indicates that these documents were also sent by regular and certified mail on

September 19, 2023, at 5:30 pm. The Affidavit of Service also states that as of

October 20, 2023, no certified mail return receipt or domestic return receipt was

received. Additionally, the envelope sent via regular mail had not been returned. A

copy of the certificate of mailing was attached including a date stamp of September

19, 2023. After substituted service, McDole still did not answer, and the

Association’s counsel moved for default judgment.

In support of this motion, the Association attached a military affidavit which

stated McDole was not actively serving in the military at any time during the

violations, efforts, and proceedings related to this lawsuit.

3 Default judgment was granted in favor of the Association. The judgment

awarded the amount represented to be due and owing to the Association and

attorney’s fees. The judgment provided for foreclosure on the lien.

DISCUSSION

McDole raises two raises two issues on appeal. First, he contends the trial

court erred in granting the default judgment and violated his right to due process

because he failed to receive proper notice. In particular, McDole complains that he

was not served with process in strict compliance with the law, a necessary

prerequisite to the entry of a default judgment. Second, McDole argues that the trial

court failed to consider his active-duty military status and his ability to participate

in the proceedings and thereby violated the statutory rights granted to him by the

Servicemembers Civil Relief Act.

Service of Process

Standard of Review

In a direct attack on a judgment, there are no presumptions of valid issuance,

service, or return of citation when examining a default judgment. P & H Transp.,

Inc. v. Robison, 930 S.W.2d 857, 858 (Tex. App.—Houston [1st Dist.] 1996, writ

denied). A no-answer default judgment cannot stand unless the record shows strict

compliance with the rules of procedure governing issuance, service, and return of

citation. See id.; Dugas v. Vardell, No. 01-21-00142-CV, 2022 WL 3093036, at *3

4 (Tex. App.—Houston [1st Dist.] Aug. 4, 2022, no pet.) (mem. op.). Whether service

strictly complies with the rules is a question of law which we review de novo. Dugas,

2022 WL 3093036, at *3.

Applicable Law

McDole contends that the default judgment must be set aside because he was

not properly served. Personal jurisdiction, a vital component of a valid judgment, is

dependent “upon citation issued and served in a manner provided for by law.” Wilson

v. Dunn, 800 S.W.2d 833, 836 (Tex.1990) (“Jurisdiction over a defendant must be

established in the record by an affirmative showing of service of citation....”);

Nichols v. Nichols, 857 S.W.2d 657, 659 (Tex. App.—Houston [1st Dist.] 1993, no

writ). When a defendant has not answered in a lawsuit, a trial court acquires personal

jurisdiction over that defendant solely on proof of proper service. See Livanos v.

Livanos, 333 S.W.3d 868, 874 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing

TEX. R. CIV. P. 107). If service is invalid, it cannot establish the trial court’s

jurisdiction over a party. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). Defective

service may be raised for the first time on appeal. See Wilson, 800 S.W.2d at 837.

Jurisdiction over the defendant must affirmatively appear by a showing of due

service of process, independent of recitals in the default judgment. Barker CATV

Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.]

1999, no writ).

5 Rule 106(a) provides that unless the citation or an order of the court otherwise

directs, the citation shall be served by any person authorized in Rule 103 by (1)

delivering to the defendant, in person, a true copy of the citation with the date of

delivery endorsed thereon with a copy of the petition attached thereto, or (2) mailing

to the defendant by registered or certified mail, return receipt requested, a true copy

of the citation with a copy of the petition attached thereto. TEX. R. CIV. P. 106(a).

Rule 109 imposes a duty on the court trying the case to inquire into the sufficiency

of the diligence exercised in attempting to ascertain the residence or whereabouts of

the defendant or to obtain service of nonresident notice before granting any judgment

on such service. TEX. R. CIV. P. 109.

“Texas Rule of Civil Procedure 106 authorizes a court to order a substitute

method of service.” Barahona v. Shafer, No. 01-22-00416-CV, 2023 WL 8418185,

at *4 (Tex. App.—Houston [1st Dist.] Dec. 5, 2023, no pet.) (mem. op.) (citing TEX.

R. CIV. P. 106(b)); see TEX. R. CIV. P. 107(f) (“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.”). When a trial court orders substituted service under

Rule 106, the order itself is the sole authority for the substituted service. See

Barahona, 2023 WL 8418185, at *4. Consequently, “any deviation from the trial

court’s order warrants a reversal of the default judgment based on service.” Id.

(citing Becker v. Russell, 765 S.W.2d 899, 900 (Tex. App.—Austin 1989, no writ).

6 When the plaintiff uses substituted service, Texas law places the burden on the

plaintiff to prove that he or she served the defendant in the method required by the

applicable statute. See Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex.

App.—Fort Worth 2003, no pet.).

“[S]ubstitute[d] service is not authorized under [Texas] Rule [of Civil

Procedure] 106(b) without an affidavit which meets the requirements of the rule

demonstrating the necessity for other than personal service.” Olympia Marble &

Granite v. Mayes, 17 S.W.3d 437, 444 (Tex. App.—Houston [1st Dist.] 2000, no

pet.). The affidavit must “stat[e] the location of the defendant’s usual place of

business or usual place of abode or other place where the defendant c[ould] probably

be found” and state specific facts showing that traditional service had been

attempted, by either personal delivery or by certified mail, “at the location named in

[the] affidavit but ha[d] not been successful.” TEX. R. CIV. P. 106(b); see Wilson,

800 S.W.2d at 836.

Under Rule 106(b), the court may authorize service by leaving a copy of the

citation and petition with anyone older than 16 at a location where the defendant can

probably be found, as stated in the affidavit, or in any other manner that the affidavit

or other evidence shows will be “reasonably effective” to give notice of the suit.

Hutagaol v. Janaka, No. 01-20-00684-CV, 2022 WL 1144635, at *2 (Tex. App.—

Houston [1st Dist.] Apr. 19, 2022, no pet.) (mem. op.); TEX. R. CIV. P. 106(b). “Rule

7 106 does not require that personal service be attempted at multiple locations before

the trial court may authorize substituted service….” James v. Comm’n for Lawyer

Discipline, 310 S.W.3d 586, 591 (Tex. App.—Dallas 2010, no pet.).

A court may not issue a default judgment unless proof of service in

compliance with the rules has been filed. Id.; TEX. R. CIV. P. 107(h).

Analysis

In this case, McDole was served in strict compliance with Rule 106(b). The

service affidavit shows that 10400 Fossil Hill Drive is McDole’s usual place of

abode. The Association’s motion for substituted service on McDole asserted that it

attempted to serve McDole “on at least six separate occasions by a private process

server” but McDole “[w]as evading service of process.” The affidavit in support of

the Association’s motion for substitute service identified McDole as the defendant

upon whom service was attempted and stated the location of McDole’s “usual place

of business or usual place of abode or other place where [McDole] c[ould] probably

be found.” TEX. R. CIV. P. 106(b).

Furthermore, the affidavit included a detailed description and time stamp for

every attempted service on McDole. One of these descriptions stated that McDole’s

wife was present and confirmed that 10400 Fossil Hill Drive was his residence. See

Magan v. Hughes Television Network, Inc., 727 S.W.2d 104, 105 (Tex. App.—San

Antonio 1987, no writ) (upholding substituted service at an address where

8 defendant’s children lived and it was shown that other communications reached him

by delivery at the same place); Alvarez v. Alvarez, 476 S.W.2d 353, 359 (Tex.

App.—Corpus Christi 1972, no writ) (record showed it was impractical to secure

personal service on husband after he moved to Mexico City; trial court upheld

substituted service by leaving petition at his place of business because this was

reasonably effective to give him notice of divorce action). The Association further

supplemented their affidavit to include a public records search that returned

information confirming that McDole resides at 10400 Fossil Hill Drive with his wife,

which indicates that he would return to the residence.

The Association served McDole using substitute service under Rule 106. The

Association was required to strictly comply with the trial court’s instructions when

serving McDole. See Barahona, 2023 WL 8418185, at *4. The trial court signed a

Rule 106 order on September 13, 2023, which authorized the Association to serve

McDole by (1) delivering a copy of the citation, petition, and trial court’s order to

anyone over sixteen years of age at McDole’s home located on Fossil Hill Drive or

(2) attaching a copy of the citation, petition, and trial court’s order to the home’s

front door.

The trial court’s order also mandated that service would “not be deemed

perfected” unless a copy of the citation, petition, and trial court’s order was “mailed

by both certified mail, return receipt requested, and regular first-class mail” to

9 McDole at his residence. The order then went on to list additional requirements

attendant to service by certified and regular mail, including (1) waiting “until 30

days after mailing or until the process server receives back the green card from the

post office, whichever is earlier”; (2) setting out, in the return of service, when the

mailings by certified mail and regular mail occurred and the results of those

mailings; and (3) attaching to the return of citation “a copy of any envelope or green

card returned by the post office.”

The return of service shows that the process server delivered the citation,

petition, and trial court’s order to McDole by securely attaching them to the front

entry of McDole’s home. The Affidavit of Service indicates that the citation,

petition, and trial court’s order were mailed by certified and regular mail to McDole

on September 19, 2023, at 5:30 pm as required by the trial court’s order. A certificate

of mailing was attached to this Affidavit of Service, which included a date stamp

showing the same September 19, 2023, mailing date. Furthermore, the Affidavit of

Service also serves as proof of strict compliance with the requirements by waiting

30 days after service by certified and regular mail and detailing that as of October

20, 2023, no receipts were received, and no envelopes were returned. See Barahona,

2023 WL 8418185, at *4. The record affirmatively reflects that the Association

served McDole in the method authorized by the trial court’s order. Id.

10 In sum, the record shows that McDole received notice of suit via substituted

service in strict compliance with the law. See P & H Transp., Inc., 930 S.W.2d at

858. Therefore, we hold that he was not denied due process due to lack of notice,

and we overrule his service-of-process issue.

Servicemembers Civil Relief Act

Because McDole’s complaint that the trial court violated his rights under the

Servicemembers Civil Relief Act requires us to construe the statute and none of the

material facts are disputed, his complaint presents a question of law, which we

review de novo. See In re H.S.J., No. 03-10-00007-CV, 2010 WL 4670564, at *2

(Tex. App.—Austin Nov. 16, 2010, no pet.) (mem. op.) (reciting that review was de

novo with respect to claim that trial court erred in applying provision of Act).

Under certain circumstances, a servicemember against whom a default

judgment has been entered during his period of military service, or within 60 days

after termination of or release from military service, may apply to the court that

entered the judgment to reopen the judgment to allow him to defend the action. 50

U.S.C. § 3931(g). To do so, the aggrieved servicemember must sufficiently

demonstrate to the court that (1) he was materially affected by reason of his military

service in making a defense to the action; and (2) he has a meritorious or legal

11 defense to the action or some part of it. Id. § 3931(g)(1). The servicemember must

file any such application no later than 90 days after the date of the termination of or

release from his military service. Id. § 3931(g)(2).

Given the record before us, McDole’s argument premised on the

Servicemembers Civil Relief Act fails for three independent reasons, any one of

which is fatal on its own. First, the record does not indicate that McDole applied to

the trial court for relief under the Act prior to appeal. The record on appeal contains

an unsigned and unnotarized affidavit by McDole stating that he was on “an active

duty military” assignment “since February 2023.” Attached to the affidavit is a

single order directing him to report for such service through mid-February 2024. But

the record does not show that this affidavit was ever presented to the trial court or

that McDole ever applied to the trial court to have the default judgment reopened.

Absent this proof in the record, McDole’s complaint fails, as the Act requires him to

apply to the court entering the default judgment for relief. Id. § 3931(g)(1).

Second, though McDole’s affidavit recites that he was an active-duty military

member during this dispute, he fails to explain how or why his military service

prejudiced his ability to file an answer or otherwise protect his interests during the

weeks after service of the suit until the default judgment was entered in November

2023. The mere fact of service alone is not sufficient to meet the requirements of the

12 Act. Under the plain language of the statute, the servicemember must show more

than active military duty service to be entitled to reopen the judgment. Id.

§ 3931(g)(1)(A). To meet the first prong, the statute requires a showing that the

servicemember was “materially affected by reason of that military service in making

a defense to the action.” Id. It is noteworthy, based on his affidavit, that he was not

deployed outside of the continental United States during this time period, and

instead, began his assignment in Lewisville, Texas, in mid-February 2023. Based on

the record before us, we hold McDole did not meet his burden of showing that he

was materially affected by reason of his military service in answering and defending

this suit. See Winship v. Garguillo, 754 S.W.2d 360, 364 (Tex. App.—Waco)

(holding facts did not establish prejudice when there was no evidence soldier was

unable to file an answer or obtain leave to “take care of this lawsuit” by reason of

his military service), writ denied, 761 S.W.2d 301 (Tex. 1988) (per curiam); Power

v. Power, 720 S.W.2d 683, 685 (Tex. App.—El Paso 1986, writ dism’d) (stating that

soldier presented no evidence he was unable to obtain leave to appear at trial or that

his defense was adversely affected by military service and holding that trial court

therefore did not abuse discretion in refusing soldier’s plea in abatement).

Third, McDole fails to show he has a meritorious defense. See 50 U.S.C.

§ 3931(g) (“[T]he court entering the judgment shall, upon application by or on behalf

of the servicemember, reopen the judgment for the purpose of allowing the

13 servicemember to defend the action if it appears that ... the servicemember has a

meritorious or legal defense to the action or some part of it.”). Here, McDole’s

affidavit wholly fails to declare that he has a good and meritorious defense to the

suit, or any part of it, which is likewise fatal to his appellate complaint. Id.

In sum, McDole has not shown that he asked the trial court for relief under

the Servicemember Civil Relief Act or that the trial court erred in applying its

provisions. Accordingly, we overrule McDole’s appellate issue concerning the Act.

CONCLUSION

We affirm the trial court’s judgment.

Gordon Goodman Justice

Panel consists of Justices Goodman, Landau, and Countiss.