Steve Nelson v. Commission for Lawyer Discipline

• Court: Court of Appeals of Texas
• Decided: April 1, 2004
• Docket: 14-03-00531-CV
• Status: Published

Opinion

Reversed and Remanded and Memorandum Opinion filed April 1, 2004

Reversed and Remanded and Memorandum Opinion filed April 1, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00531-CV

STEVEN NELSON, Appellant

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 02-CV-125218

M E M O R A N D U M   O P I N I O N

This case involves defective substituted service and the rendering of a default judgment.  In two issues, appellant Steven Nelson claims the trial court erred in (1) granting a motion for substituted service sought by appellee Commission for Lawyer Discipline (the ACommission@) and (2) failing to grant Nelson a hearing on his unopposed motion for a new trial.  We reverse the trial court=s judgment and remand the case for a new trial.

On July 22, 2002, the Commission initiated a disciplinary action against Nelson.  The Commission later filed a motion for substituted service, which was granted by the trial court.  In her affidavit supporting the motion, counsel for the Commission stated that service in person and by certified mail had been attempted at Nelson=s residence.  When Nelson did not file an answer, the Commission moved for a default judgment.  The trial court granted an interlocutory order of default on December 31, 2002, and set a separate hearing on sanctions in February of 2003.  On January 31, 2003, Nelson filed a general denial.  He attended the hearing on sanctions and sought a motion for continuance.  The trial court denied the motion for continuance, and after taking evidence, entered a judgment of disbarment.  Nelson filed an unopposed motion for new trial and requested an evidentiary hearing on the motion.

In his first issue, Nelson argues service was invalid because (1) the Commission had not made attempts to serve him before it sought substituted service and (2) the Commission did not comply with instructions in the trial court=s order for substituted service.  The Commission acknowledges that the unsuccessful attempts at service listed in the affidavit attached to its motion for substituted service were attempts made in a different disciplinary action against Nelson and were not attempts at service made in this case.  The Commission agrees with appellant that the trial court=s judgment should be reversed.

AFor well over a century, [the Texas Supreme Court] has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack.@  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).  There are no presumptions in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment.  Id.  AMoreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect.@  Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985).  The Texas Rules of Civil Procedure provide alternatives to service of process by mail or in‑person delivery when the serving party meets the requirements set forth in the rule.

Upon 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 probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) [in‑person service] or (a)(2) [service by registered or certified mail] at the location named in such affidavit but has not been successful, the court may authorize 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.

Tex. R. Civ. P. 106(b) (emphasis added).  Because the Commission did not attempt to serve Nelson either in person or by certified mail before seeking substituted service, proper service is not affirmatively shown by the record.  Accordingly, we sustain Nelson=s first issue.  Having concluded that the default judgment against Nelson was improper, we need not address his second issue.  We reverse the judgment of the trial court, and remand this case to the trial court for a new trial.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed April 1, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.