Opinion issued May 16, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00697-CV ——————————— MATTHEW JOHN DATE AND STRUCTURED CAPITAL INVESTMENTS, LLC, APPELLANTS V. RSL FUNDING, LLC, APPELLEE
On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 1156406A
MEMORANDUM OPINION
In this restricted appeal from a default judgment, RSL sued two former
employees, Matthew Date and Shane McCallay, and their business, Structured
Capital Investments (“SCI”), for misappropriating RSL’s confidential and
proprietary information. RSL’s claims against Date and SCI were severed from those against McCallay when Date and SCI failed to answer the suit. McCallay
continues to contest the merits of the suit in the trial court. Date and SCI
(collectively, “Date”) filed this restricted appeal from a default judgment,
contending that Date was not properly served with process. We hold that Date has
failed to show error on the face of the record negating the trial court’s recital that
he was properly served. We therefore affirm.
Background
The suit began with a temporary restraining order issued against SCI and
Date. RSL attempted personal service several times without success on Date at
4713 Linden Street in Bellaire, Date’s residence and SCI’s business address. The
process server left copies of a temporary restraining order, and a citation and
petition, at the residence, and averred that he verified with a woman doing yard
work that she was Date’s landlord and he lived at the Linden address, but he did
not serve Date personally. RSL subsequently moved for substituted service under
Texas Rule of Civil Procedure 106(b). The motion included correspondence from
legal counsel that he no longer represented Date, but that Date was aware of RSL’s
intent to file suit and seek a temporary restraining order. The trial court granted the
motion. The order authorized service by leaving a copy of the citation and petition
with “anyone over sixteen (16) years of age at [Date’s Residence] and mailing a
copy of same.” RSL mailed a copy of the citation and petition to Date the next day.
2 After attempting to serve someone over the age of sixteen at the address several
times without success, RSL again moved for substituted service, requesting that the
trial court allow service by posting the citation and petition on the door of Date’s
residence.
A process server served a person over the age of sixteen at the residence at
8:49 a.m. one morning, while, on the same day, the trial court granted RSL’s
second motion for substituted service. The amended order authorized service by
posting the citation and accompanying materials “on the front door” of Date’s
residence and by sending the same by first class mail. In addition to posting the
papers at Date’s address, RSL mailed copies to the address by first class mail.
After receiving no answer to the underlying suit, RSL moved for entry of a
default judgment against Date. The trial court entered judgment, ordered Date to
pay damages of $385,670, and enjoined Date from disclosing RSL’s potential
confidential and proprietary information. The process server’s affidavit of service
and the trial court’s judgment reflect that Date was served with citation and a copy
of the plaintiff’s petition by substituted service “on December 1, 2011,” the date
the process server delivered the citation to someone over sixteen at the residence—
and the same day that the trial court amended its order.
3 Discussion
Standard of Review
A no-answer default judgment cannot withstand a direct attack by a
defendant who shows that he was not served in strict compliance with the Texas
Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990);
Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per curiam). In contrast to
the usual rule that presumptions will be made in support of a judgment, when
examining a default judgment, we accord no presumption of valid issuance,
service, or return of citation. Uvalde Country Club v. Martin Linen Supply Co., 690
S.W.2d 884, 885 (Tex. 1985) (per curiam). Failure to strictly comply with the rules
of civil procedure renders any attempted service of process invalid. Hubicki, 226
S.W.3d at 407; Wilson, 800 S.W.2d at 836.
A party may file a restricted appeal from a proceeding in which he did not
participate or timely file any postjudgment motions by giving notice of appeal
within six months of the judgment. TEX. R. APP. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848–49 (Tex. 2004). To prevail in a restricted
appeal, like this one, the complaining party must show error on the face of the
record. Hubicki, 226 S.W.3d at 407. Error generally may not be inferred from
silence in the record; thus, absent affirmative proof of error, a restricted appeal
fails. See Alexander, 134 S.W.3d at 849–50 (holding silence in the record on
4 restricted appeal about whether notice was provided in hearing to dismiss for want
of prosecution amounts to absence of proof of error).
Analysis
Texas Rule of Civil Procedure 106(b) authorizes a court to order substituted
service of process upon a proper showing that a plaintiff has been unable to
personally serve a defendant. TEX. R. CIV. P. 106(b). When a court orders
substituted service under Rule 106(b), the order provides the only authority for the
substituted service. Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex.
App.—Fort Worth 2003, no pet.); Becker v. Russell, 765 S.W.2d 899, 900–01
(Tex. App.—Austin 1989, no writ). As a result, “any deviation from the trial
court’s order necessitates a reversal of the default judgment based on service.”
Vespa, 98 S.W.3d at 752; see Becker, 765 S.W.2d at 901.
The return of service in this case complies with the trial court’s initial order
granting substituted service. See Vespa, 98 S.W.3d at 752. The return of service
reflects that the process server left the suit papers with “a suitable age person
(African American male, late 40’s to early 50’s, glasses)” at the address specified
in the order, and that he mailed a copy to the address, as required by the order.
Date does not contest that substituted service was completed in strict compliance
with the trial court’s first order. Instead, he contends that the initial order had been
vacated by the amended order before service was accomplished. See FKM P’ship
5 v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008)
(holding amended pleading did not supplement, but superseded prior pleadings).
Nothing in the record indicates that the trial court entered the amended order
before service was completed pursuant to the first order, nor that the amended
order voided service completed pursuant to the first order. The record does not
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Opinion issued May 16, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00697-CV ——————————— MATTHEW JOHN DATE AND STRUCTURED CAPITAL INVESTMENTS, LLC, APPELLANTS V. RSL FUNDING, LLC, APPELLEE
On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 1156406A
MEMORANDUM OPINION
In this restricted appeal from a default judgment, RSL sued two former
employees, Matthew Date and Shane McCallay, and their business, Structured
Capital Investments (“SCI”), for misappropriating RSL’s confidential and
proprietary information. RSL’s claims against Date and SCI were severed from those against McCallay when Date and SCI failed to answer the suit. McCallay
continues to contest the merits of the suit in the trial court. Date and SCI
(collectively, “Date”) filed this restricted appeal from a default judgment,
contending that Date was not properly served with process. We hold that Date has
failed to show error on the face of the record negating the trial court’s recital that
he was properly served. We therefore affirm.
Background
The suit began with a temporary restraining order issued against SCI and
Date. RSL attempted personal service several times without success on Date at
4713 Linden Street in Bellaire, Date’s residence and SCI’s business address. The
process server left copies of a temporary restraining order, and a citation and
petition, at the residence, and averred that he verified with a woman doing yard
work that she was Date’s landlord and he lived at the Linden address, but he did
not serve Date personally. RSL subsequently moved for substituted service under
Texas Rule of Civil Procedure 106(b). The motion included correspondence from
legal counsel that he no longer represented Date, but that Date was aware of RSL’s
intent to file suit and seek a temporary restraining order. The trial court granted the
motion. The order authorized service by leaving a copy of the citation and petition
with “anyone over sixteen (16) years of age at [Date’s Residence] and mailing a
copy of same.” RSL mailed a copy of the citation and petition to Date the next day.
2 After attempting to serve someone over the age of sixteen at the address several
times without success, RSL again moved for substituted service, requesting that the
trial court allow service by posting the citation and petition on the door of Date’s
residence.
A process server served a person over the age of sixteen at the residence at
8:49 a.m. one morning, while, on the same day, the trial court granted RSL’s
second motion for substituted service. The amended order authorized service by
posting the citation and accompanying materials “on the front door” of Date’s
residence and by sending the same by first class mail. In addition to posting the
papers at Date’s address, RSL mailed copies to the address by first class mail.
After receiving no answer to the underlying suit, RSL moved for entry of a
default judgment against Date. The trial court entered judgment, ordered Date to
pay damages of $385,670, and enjoined Date from disclosing RSL’s potential
confidential and proprietary information. The process server’s affidavit of service
and the trial court’s judgment reflect that Date was served with citation and a copy
of the plaintiff’s petition by substituted service “on December 1, 2011,” the date
the process server delivered the citation to someone over sixteen at the residence—
and the same day that the trial court amended its order.
3 Discussion
Standard of Review
A no-answer default judgment cannot withstand a direct attack by a
defendant who shows that he was not served in strict compliance with the Texas
Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990);
Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per curiam). In contrast to
the usual rule that presumptions will be made in support of a judgment, when
examining a default judgment, we accord no presumption of valid issuance,
service, or return of citation. Uvalde Country Club v. Martin Linen Supply Co., 690
S.W.2d 884, 885 (Tex. 1985) (per curiam). Failure to strictly comply with the rules
of civil procedure renders any attempted service of process invalid. Hubicki, 226
S.W.3d at 407; Wilson, 800 S.W.2d at 836.
A party may file a restricted appeal from a proceeding in which he did not
participate or timely file any postjudgment motions by giving notice of appeal
within six months of the judgment. TEX. R. APP. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848–49 (Tex. 2004). To prevail in a restricted
appeal, like this one, the complaining party must show error on the face of the
record. Hubicki, 226 S.W.3d at 407. Error generally may not be inferred from
silence in the record; thus, absent affirmative proof of error, a restricted appeal
fails. See Alexander, 134 S.W.3d at 849–50 (holding silence in the record on
4 restricted appeal about whether notice was provided in hearing to dismiss for want
of prosecution amounts to absence of proof of error).
Analysis
Texas Rule of Civil Procedure 106(b) authorizes a court to order substituted
service of process upon a proper showing that a plaintiff has been unable to
personally serve a defendant. TEX. R. CIV. P. 106(b). When a court orders
substituted service under Rule 106(b), the order provides the only authority for the
substituted service. Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex.
App.—Fort Worth 2003, no pet.); Becker v. Russell, 765 S.W.2d 899, 900–01
(Tex. App.—Austin 1989, no writ). As a result, “any deviation from the trial
court’s order necessitates a reversal of the default judgment based on service.”
Vespa, 98 S.W.3d at 752; see Becker, 765 S.W.2d at 901.
The return of service in this case complies with the trial court’s initial order
granting substituted service. See Vespa, 98 S.W.3d at 752. The return of service
reflects that the process server left the suit papers with “a suitable age person
(African American male, late 40’s to early 50’s, glasses)” at the address specified
in the order, and that he mailed a copy to the address, as required by the order.
Date does not contest that substituted service was completed in strict compliance
with the trial court’s first order. Instead, he contends that the initial order had been
vacated by the amended order before service was accomplished. See FKM P’ship
5 v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008)
(holding amended pleading did not supplement, but superseded prior pleadings).
Nothing in the record indicates that the trial court entered the amended order
before service was completed pursuant to the first order, nor that the amended
order voided service completed pursuant to the first order. The record does not
affirmatively show that process was served after the trial court signed the amended
order, rather than before he signed it. See Alexander, 134 S.W.3d at 849–50. The
final default judgment recites that Date was served by substituted service as
authorized by the trial court in its first order, indicating that the first order
remained operative at the time Date was served. Because service was obtained
pursuant to the trial court’s first order, and nothing in the record nor in the trial
court’s amended order indicates that service obtained pursuant to the earlier order
was void, Date has failed to show apparent error. Date has failed to show an
irregularity on the face of the record supporting reversal of the judgment. See
Hubicki, 226 S.W.3d at 407.
6 Conclusion
We affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Justices Jennings, Bland, and Massengale.