in the Interest of E.D., a Child

553 S.W.3d 101

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00448-CV

IN THE INTEREST OF E.D., A CHILD

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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY TRIAL COURT NO. 32309

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DISSENTING OPINION

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Along with the entire court, I share the majority’s articulated concerns

about the many errors and irregularities apparent on the face of the record in this

appeal and the consequentially suspect result in the trial court’s judgment and

judgment nunc pro tunc, the latter of which effected an essentially 180-degree

change of custody, possession, and access to a child under three years of age,

wholly unsupported by any pleading, based on attempted substituted service that

was so incredibly defective as to amount to no service at all. But I respectfully

dissent to the majority’s holding that we do not have jurisdiction over the appeal. I believe our analysis of the jurisdictional issue should focus on whether Father

and the trial court attempted but failed to effect substituted service under rule

109a, instead of deciding that service pursuant to that rule was not authorized

because the trial court failed to sign an order containing the recitations required

by that rule. By narrowly construing the scope of the remedy available to a party

for whom substituted service under rule 109a has been ordered––whether

properly or not––the majority denies Mother relief based on Father’s failure to

strictly comply with substituted service requirements and does so when the

record as a whole supports Mother’s contention that the trial court attempted to

order substituted service pursuant to rule 109a. In doing so, the majority’s

disposition runs contrary to the directive that we are to liberally construe the rules

of civil procedure to resolve matters “with as great expedition and dispatch and at

the least expense both to the litigants and to the state as may be practicable.”

Tex. R. Civ. P. 1; In re Bridgestone Americas Tire Operations, LLC, 459 S.W.3d

565, 569 (Tex. 2015) (orig. proceeding); cf. In re J.Z.P., 484 S.W.3d 924, 925

(Tex. 2016); Ryland Enter. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011)

(repeating well-settled principle that we construe rules of appellate procedure

liberally to preserve right of appeal on the merits). Therefore, I disagree with the

majority solely on the legal question of whether this court has jurisdiction to

consider this attempted direct appeal.

2 Errors and Irregularities Apparent From Face of Record

The majority has accurately set forth many of my concerns with the state of

the record in this appeal. But I believe other problems bear recounting.

In the original SAPCR order in which the trial court found that Father had a

history or pattern of family violence sufficient to completely deny him access to

E.D., the trial court also found that disclosure of the addresses and other

identifying information of Mother and the child was “likely to cause [Mother] or the

child harassment, abuse, serious harm or injury.” Thus, the trial court ordered

that such information not be disclosed to Father and extended this nondisclosure

to “any custodian of records, including, but not limited to judicial clerks, medical

offices, and school offices.”

Although in his subsequent motion to modify Father alleged that “[t]he

circumstances of the child, a conservator, or other party affected by the order to

be modified have materially and substantially changed since the date of rendition

of the order to be modified,” he did not elaborate what those circumstances were.

See Tex. Fam. Code Ann. § 156.101(a)(1) (West 2014). More importantly, his

petition never alerted the court to the previous family-violence finding or

explained whether he had purged himself of such history or pattern over the

intervening fifteen months. 1 See id. § 153.004(d) (West Supp. 2017) (prohibiting

1 Although I could find no authority requiring a party subject to such a finding to include this information in a subsequent motion to modify, it is the type of information that should be addressed in a subsequent SAPCR petition so the trial court has notice that the finding should be considered in determining whether

3 court from granting custodial access to parent shown by a preponderance of the

evidence to have a history or pattern of committing family violence within two

years preceding filing of or during pendency of SAPCR). Neither did the trial

judge address the finding in the modification order or judgment nunc pro tunc.

There is no docket entry for the day the trial court considered and ruled on

the motion for substituted service. And although Father’s motion states that the

initial service attempts occurred in Olney, Young County––which presumably

includes the attempt by the process server in which he made contact with

Mother’s father––the return of service in the record shows that the process

server served Mother’s father in Seymour, Baylor County. The man who held

himself out as Mother’s father could have delivered the modification petition to

her anywhere in the world, for all we and the trial court could tell from the pretrial

record.

At the time of the entry of the original SAPCR order, E.D. had just turned

one. She was not yet three when the trial court rendered the modification order.

Nevertheless, nothing in the modification order or judgment nunc pro tunc

demonstrated that the trial court considered the statutory factors applicable for

possession of a child less than three years of age. See id. § 153.254(a) (West

there has been a material and substantial change in circumstances. The absence of any reference to the prior family-violence finding in Father’s petition might explain the trial judge’s apparent lack of consideration of the finding’s effect on Father’s inability to effect service, in light of the fact that the trial court had previously ordered that Mother’s address was not to be disclosed to Father to prevent child harassment, abuse, serious harm, or injury.

4 Supp. 2017). Nor did the trial court render a prospective order to take effect on

the child’s third birthday. Id. § 153.254(d) (“The court shall render a prospective

order to take effect on the child’s third birthday, which presumptively will be the

standard possession order.”).

The trial court erroneously rendered the judgment nunc pro tunc without

any further pleading, motion, or hearing. See Tex. R. Civ. P. 316. Because the

judgment nunc pro tunc effected a substantive change, and therefore does not

qualify as a judgment nunc pro tunc, it is void because it was signed outside the

trial court’s plenary power. See Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply,

LLC, 397 S.W.3d 162, 168 (Tex. 2013).

Both the modification order and judgment nunc pro tunc list Mother’s

address as “Unknown.” Thus, even after the attempted substituted service, the

trial court found that no one knew where to find Mother. Pursuant to the trial

court’s original SAPCR order, Mother’s address was not to be disclosed to any

judicial clerks. Yet within twelve days of the entry of the judgment nunc pro tunc,

the sheriff’s department was able to execute the judgment at Mother’s residence,

taking E.D. from Mother’s possession.

Finally, although Father argued in his response to the motion for new trial

that Mother’s father delivered the petition to her and that Mother had contacted

Father a few days after the original modification order, actual notice will not cure

defective service for purposes of conveying personal jurisdiction on the trial court

5 to grant a default judgment. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.

1990).

Father Sought Substituted Service Based on His Inability to Locate Mother

It is apparent from the face of the record and the context of Father’s motion

for substituted service that Father sought the type of substituted service

authorized by rule 106(b) but for a reason described in rule 109, the publication

rule. If Mother had filed a notice of appeal within thirty days of the original

modification order, or if she had filed a timely restricted appeal from the original

modification order or judgment nunc pro tunc, she would without question be

entitled to relief. See, e.g., id. at 836–37 (citing Medford v. Salter, 747 S.W.2d

519, 520–21 (Tex. App.––Corpus Christi 1988, no writ) (in restricted appeal,

construing substance of motion for substituted service that listed and relied solely

on rule 109a and reversing default judgment because service was improperly

effectuated under either rule 106(b) or rule 109a)); cf. Ingram Indus., Inc. v. U.S.

Bolt Mfg., Inc., 121 S.W.3d 31, 35–36 (Tex. App.––Houston [1st Dist.] 2003, no

pet.) (holding that service was not defective when heading on citation

erroneously referenced rule 106 because rule 99 does not require listing the

operable rule or statute on citation itself and service was proper under article

2.11(B) of the Business Corporation Act).

In J.Z.P., an appeal involving strikingly similar circumstances as this

appeal, the Texas Supreme Court considered whether a document entitled

“Motion to Reopen and to Vacate Order,” filed by the mother after the trial court’s

6 plenary jurisdiction had expired, should be construed as a rule 306a motion. 484

S.W.3d at 925; see Tex. R. Civ. P. 306a(4), (5) (outlining procedure for obtaining

additional time to file postjudgment motion or appeal when adversely affected

party or attorney does not receive notice of judgment within twenty days after it is

signed). The court of appeals had held that the motion did not extend the trial

court’s plenary jurisdiction and postjudgment deadlines because it was not

captioned as a rule 306a motion. Id. The supreme court held that the court of

appeals erred in its holding because “courts should acknowledge the substance

of the relief sought despite the formal styling of the pleading,” and the mother’s

pleading “plainly requested relief from the trial court’s order on the grounds that

she had not been served with citation and had not learned of the trial court’s

order until a few days before her motion was filed.” Id. Accordingly, the supreme

court determined whether rule 306a applied to extend postjudgment and

appellate deadlines by construing the substance of the mother’s request for

relief. Id. It further held that “[j]ustice plainly required the trial court and court of

appeals to treat [the mother’s] motion as extending post-judgment deadlines.” Id.

Here, the body of Father’s “Motion For Substituted Service” 2 reads as

follows:

2 I have omitted the listing of the parties’ names.

7 lI. GROUNDS

Service of citation on Respondent has been attempted by personally delivering it to the Respondent at her last known address in Olney, Young County, Texas, but these attempts at service have not been successful as shown by the attached affidavit.

III. FACTS

Personal Service has been attempted on multiple occasions by Matt Pruitt with no success. Mr Pruitt has been provided phone numbers of the Respondent by the Respondent’s father . . . , but no one responds to the calls. Despite his diligent efforts, Mr. Pruitt has been unable to locate the Respondent so that personal service can be perfected on the Respondent.

lV. REQUESTED METHOD OF SERVICE

As authorized by Rule 106(b) of the Texas Rules of Civil Procedure, service on the Respondent . . . should be made by delivering a copy of the Citation, along with a copy of the Motion to Modify filed herein by [Father], with the Respondent’s father . . . .

V. PRAYER

Movant . . . hereby prays that the Court direct that Citation be served on the Respondent . . . in the manner described above.

The body of the process server’s attached affidavit reads as follows:

Citation for the Respondent . . . in this cause was delivered to me by the Petitioner’s attorney, Stephen O. Crawford, on January 27, 2016. I have attempted personal service on the Respondent at 4:30 p.m. on January 28, 2016 and such service was not successful. I attempted personal service once again on February 1, 2016 and again was unsuccessful. Service was attempted once again on February 3, 2016. At that time, I was able to make contact with a [name deleted] who represented that he was the father of [Mother]. He gave me an address and phone number

8 for [Mother] but both were found not to still be accurate. [Mother’s father] indicated that if I were to leave the papers with him, that he could make sure that [Mother] received them. He indicated that he had regular contact with [Mother]. I feel that by serving the Citation with a copy of the Motion to Modify attached on [Mother’s father], that the Respondent . . . would receive actual and timely notice of this cause.[3]

We must consider the substance of the relief requested in Father’s motion

in light of the affidavit setting forth why substituted service was necessary. See

Tex. R. Civ. P. 106(b), 109; cf. J.Z.P., 484 S.W.3d at 925. Although Father

indicated in his motion that he sought service via the method authorized by rule

106(b), he also plainly asserted as a fact supporting service by that method that

“[d]espite his diligent efforts, Mr. Pruitt [the process server] ha[d] been unable to

locate” Mother. In his affidavit, Pruitt does not indicate that when he encountered

Mother’s father at the place he had been attempting service, Mother’s father

affirmed the location was Mother’s residence. Instead, Pruitt states that Mother’s

father gave him another address and a phone number but that those proved to

be inaccurate. Thus, nothing in Father’s motion or the attached affidavit shows

that Mother’s address or location was known to the process server, Father, or

Father’s attorney. And the trial court’s original SAPCR order prohibited the

3 The process server failed to explain why he was confident that serving the citation and motion to modify on Mother’s father would ensure that Mother would receive actual and timely notice even after Mother’s father had provided him with an incorrect address and phone number for Mother.

9 disclosure of Mother’s address to Father. 4 The trial court’s order authorizing

service of Mother via her father does not identify the rule authorizing the

substituted service ordered, but merely finds that Father attempted personal

service unsuccessfully and that “[t]he manner of service ordered”––delivery to

Mother’s father––“will be reasonably effective in giving [Mother] notice of this

suit.”

Whether the motion and affidavit sought substituted service at a known or

unknown location is important to determining under which rule Father was

attempting to proceed. Rule 106(b)(2) allows for substituted service “[u]pon

motion supported by affidavit stating the location of the defendant’s usual place

of business or usual place of abode or other place where the defendant can

4 In his Response to Mother’s Motion to Set Aside Default Judgment and Motion for New Trial, Father blames Mother for his inability to obtain personal service, conceding that her residence was unknown to him when he requested substituted service. In making this argument, Father further expressly argued that Mother “failed to include her required information – including her address and phone number – as required by Section 105 of the Texas Family Code in the Order in Suit Affecting the Parent-Child Relationship, nor did she continue to update [him] and/or the Court of her new address and con[t]act information, as required pursuant to Texas Family Code Section 105.006 (specifically 105.006(a)(2)[)].” Incredibly, Father then categorically misrepresented that “[t]here was no finding by the Court (after notice and hearing) that the information would cause [Mother] harassment, abuse, serious harm, or injury, to allow that the information not be disclosed or included in the Final Order.”

The only duty Mother owed was to make sure the State Case Registry had current information on her and the child, including their residence. Under the circumstances, the residence and identifying information of Mother was to be “unknown” to Father as a matter of law under the original SAPCR order. Even if the trial court or district clerk knew the current address of Mother, neither could disclose that information to Father for purposes of obtaining service of citation of a suit to modify.

10 probably be found and stating specifically the facts showing that service has

been attempted” by delivering it to the defendant in person or mailing it by

registered or certified mail, return receipt requested, “at the location named in

such affidavit.” Tex. R. Civ. P. 106(b). Upon a showing that such attempted

service was unsuccessful at that location, the rule outlines one of two methods

for substituted service:

(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or

(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.

Id. Thus, rule 106(b) prescribes a way of effecting substituted service when a

process server is unable to serve a defendant at a known, named location. See

In re C.L.W., 485 S.W.3d 537, 541 (Tex. App.––San Antonio 2015, no pet.);

Garrells v. Wales Transp., Inc., 706 S.W.2d 757, 759 (Tex. App.––Dallas 1986,

no writ) (“We hold that before the trial judge orders substituted service under rule

106, there must be evidence of probative value that the location stated in the

affidavit is the defendant’s usual place of business or usual place of abode or

other place where the defendant can probably be found.”).

Neither the motion nor the affidavit identifies Mother’s usual place of

business or abode or other place where she could probably be found. Thus,

substituted service was not “authorized” under rule 106(b).

11 In contrast, rules 109 and 109a allow substituted service when the

defendant’s location is unknown. Tex. R. Civ. P. 109, 109a; cf. Dean v. Hall,

No. 03-10-00090-CV, 2010 WL 5463933, at *2 (Tex. App.––Austin Dec. 31,

2010, no pet.) (mem. op.); see Tex. Fam. Code Ann. § 102.010 (West 2014)

(providing for service by publication in family law cases). Rule 109 provides as

follows:

When a party to a suit, his agent or attorney, shall make oath that the residence of any party defendant is unknown to affiant, . . . and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, . . . the clerk shall issue citation for such defendant for service by publication. In such cases it shall be the duty of 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, as the case may be, before granting any judgment on such service.

Tex. R. Civ. P 109 (emphasis added).

Here, Father’s motion asserted that even though Pruitt had attempted to

serve Mother at her last known address, he had nevertheless been unable to

locate her “[d]espite his diligent efforts.” This is an almost word-for-word

quotation of rule 109. Additionally, Pruitt never averred that the location at which

he located Mother’s father was in fact Mother’s last known address, and he

represented that the address and phone number Mother’s father gave him were

incorrect. Reading the affidavit in its entirety, it is clear that Pruitt averred that

substituted service was necessary because he did not know where to find Mother

even if he did not expressly state those words. And, again, the trial court’s own

12 file containing the original SAPCR order shows that Mother’s location was

intended to be unknown to Father.

Rule 109a allows the trial court to fashion a method of substituted service

other than publication “[w]henever citation by publication is authorized.” Tex. R.

Civ. P. 109a. The majority concludes that this quoted language means that

Father could not have attempted, and the trial court could not have ordered,

service under rule 109a because (1) the trial court’s order did not include a

recitation that the substituted method of service “would be as likely as publication

to give defendant actual notice” and (2) Pruitt’s affidavit does not aver that

Mother’s address was unknown to Father. Maj. Op. at 11. But the plain

language of rule 109 “authorizes” citation by publication when, among other

things, a party, his agent, or attorney swears that the defendant’s location is

unknown to the affiant and the party and despite diligent efforts, he or she cannot

locate the defendant. Father clearly proffered the affidavit of the process server

as his agent for purposes of establishing the facts necessary to obtain alternate

service under rule 109. See Sgitovich v. Sgitovich, 241 S.W.2d 142, 147–48

(Tex. 1951) (analyzing whether service was proper under rule 109––upon

affidavits of two persons with whom server left citation that they did not know

where to locate appellant and affidavit of former attorney that did not say whether

or not attorney knew appellant’s location––in light of whether facts in affidavit

were true, stating, “It is not the making of the affidavit, but the truth of it, that is,

the existence in fact of the assumed condition, which enables the court to acquire

13 jurisdiction over the person of the defendant by publication.” (emphasis added)),

cert. denied, 342 U.S. 903 (1952). That neither Father nor the trial court ensured

a proper order was signed does not change that rule 109––which by its language

does not require such a recitation––authorized service by publication upon these

facts because of the requisite sworn representation that Mother’s location was

unknown despite diligent efforts to locate her and effectuate service. It is

Father’s seeking of and attempt to effect such service based on his inability to

locate Mother because he did not (and by order could not) know her address––a

permitted reason for seeking service under rules 109 and 109a––that makes rule

329(a) applicable to extend the trial court’s plenary power and the appellate

deadlines so that we may properly address the merits of Mother’s appeal in this

case.

And, contrary to the majority’s conclusion that the trial court’s April 29,

2016 docket entry is irrelevant to the jurisdictional analysis, that docket entry is

consistent with a conclusion that the trial court attempted, but failed, to properly

effectuate service under rules 109 and 109a. It is also consistent with the trial

court’s duty to inquire into the sufficiency of the diligence exercised in attempting

to ascertain Mother’s whereabouts, a duty not imposed on the trial court by rule

106(b). Tex. R. Civ. P. 106(b), 109, 109a; see In re A.Y., 16 S.W.3d 387, 389

(Tex. App.––El Paso 2000, no pet.).

Thus, mindful of the Supreme Court’s admonition in J.Z.P. that Texas

courts should look to the substance of the relief sought, not the form of the plea

14 or pleading, the record as a whole shows that Father sought, and the trial court

granted, substituted service on the theory that Mother’s location was unknown to

Father, not that the process server was unable to effectuate service at Mother’s

usual place of abode or other location where she could probably be found. See

Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (adopting

functional approach to determining appealability of venue ruling based on joinder

decision). For that reason, I would hold––based solely on the specific facts of

this case––that the extended timetable in rule 329(a) applies because Father

sought and was authorized to seek service under rule 109 and requested under

rule 109a a method of service listed as permissible in rule 106(b). I do not

believe this court should hold Father’s and the trial court’s errors in effecting that

substituted service against Mother as the defaulting party when the record must

show that Father strictly complied with the rules regarding service to support his

default judgment. See Wilson, 800 S.W.2d at 836. Moreover, although Mother

may have a remedy through an equitable bill of review, advising her to seek such

a remedy at this point––almost two years after entry of the clearly erroneous

judgment nunc pro tunc––would result in a further delay of the resolution of a

matter that the law demands be handled expeditiously. 5 See Tex. R. Civ. P. 1;

5 Mother was represented in post-trial matters by a Legal Aid attorney. I doubt I need to recount here the inherent difficulties that those attorneys and litigants often face due to a lack of adequate funding and resources. Cf. Herrera v. Rivera, 281 S.W.3d 1, 8 (Tex. App.––El Paso 2005, no pet.) (concluding that Herrera showed reasonable excuse for delay preventing dismissal for want of prosecution by presenting evidence that Legal Aid office suffered from a high

15 In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)

(orig. proceeding) (op. on reh’g) (noting that in child custody cases “[j]ustice

demands a speedy resolution” and granting mandamus relief even though notice

of appeal had been filed and issue could have been presented in pending appeal

as a remedy but it would have been inadequate).

Conclusion

Because the record as a whole shows that Father sought and obtained

substituted service on Mother under rule 109a based on a theory that her

location was unknown to him––and because Father’s failure to properly effect,

and the trial court’s failure to properly order, service under that rule or any other

cannot cure the many egregious errors in this record––I dissent to the majority’s

opinion holding that Father’s and the trial court’s errors constitute a jurisdictional

bar to Mother’s appeal. 6 I would consider the appeal on its merits, hold that the

turnover of attorneys, that at least five attorneys had worked on her case, and that even after agency lost contact with Herrera, it still diligently attempted to contact her). 6 I fully appreciate that a fair and even-handed application of the law often yields results that appear to be unfair. Here, however, the construction of the law and rules that I advocate does not reward a litigant for sitting on her rights until it is too late. Rather, as in all alleged-lack-of-service cases––in which due process rights are implicated––it places the onus to document and effect service on the party upon whom the law rightfully places that high burden. See, e.g., Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899 (1988) (holding that the failure to give notice is a violation of “the most rudimentary demands of due process of law” which must be remedied by allowing the party deprived of notice a new trial, regardless of the merits of that party’s defense). Mother alleged and swore in her motion for new trial that she “never received service in this case.”

16 trial court erred by failing to grant Mother’s motion for new trial, reverse the trial

court’s modification order and judgment nunc pro tunc, and remand for a new

trial. See In re E.R., 385 S.W.3d 552, 563, 566 (Tex. 2012) (noting that “if

service was invalid, a party is entitled to a new trial without showing good cause”

and that “[a] complete failure of service deprives a litigant of due process and a

trial court of personal jurisdiction; the resulting judgment is void and may be

challenged at any time”).

/s/ Wade Birdwell

WADE BIRDWELL JUSTICE

MEIER and GABRIEL, JJ., join.

DELIVERED: May 24, 2018