Texas Department of Public Safety v. Thomas Williams

• Court: Court of Appeals of Texas
• Decided: February 19, 2010
• Docket: 03-08-00466-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00158-CV

Fredia M. Alexander, Appellant

v.

Allan A. Alexander, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 228,038-D, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

MEMORANDUM OPINION

Fredia Alexander appeals from the trial court’s denial of her petition for bill of review

in connection with the final decree in her divorce from Allan Alexander. Both Fredia and Allan

represent themselves pro se on appeal.1 We affirm the trial court’s judgment.

BACKGROUND

On October 2, 2006, the Bell County district court signed a final decree in the parties’

divorce, rendered by default with respect to Fredia. According to Fredia, she first learned of the

default divorce decree after receiving a text message from Allan sometime around January 2007,

causing her to contact the Bell County clerk’s office and learn that she was, in fact, divorced. On

February 13, 2008, Fredia filed her petition for bill of review, asserting that she was not served with

process and had no notice of the divorce action.

1 We will refer to the parties by their first names to avoid confusion. At the bill-of-review hearing, Allan offered into evidence a return of service from a

New York-based process server, stating that Fredia was served on August 26, 2006 at 7:48 a.m., at

an address in Bronx, New York. The document is signed and sworn to by Robert Crandall, the

individual purporting to have served Fredia.

Fredia testified, however, that she was never served. She conceded that the address

listed on the return of service was her mother’s address and that she had been living with her mother

at that address in early 2006, but explained that she had moved out of her mother’s home in

July 2006.2 She further testified that Allan was aware that she no longer lived at her mother’s

address at the time she was allegedly served, but that he could not have known her new address

because she had refrained from giving it to him out of concern for her physical safety.

At the conclusion of the hearing, the trial court denied Fredia’s petition for bill of

review. This appeal followed.

STANDARD OF REVIEW

A bill of review is an equitable proceeding to set aside a judgment that is not void on

the face of the record but is no longer appealable or subject to a motion for new trial. King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In order to prevail, a bill-of-review plaintiff

claiming that she was not served must prove “that the judgment was rendered unmixed with any fault

or negligence of [her] own.” Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).3 Because an

2 This statement is consistent with a lease agreement entered into evidence at the bill-of- review hearing. 3 In bill-of-review cases in which the plaintiff does not allege a lack of service, the plaintiff must also plead and prove “a meritorious defense to the underlying cause of action” that he was

2 individual who is not served with process cannot be at fault or negligent in allowing a default

judgment to be rendered, proof of non-service conclusively establishes that the plaintiff is entitled

to relief. Id.

In reviewing the denial of a bill of review, we indulge every presumption in favor of

the trial court’s ruling, which will not be disturbed unless it is affirmatively shown that there was an

abuse of judicial discretion. Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.—Austin 2000,

pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably or without

reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985).

DISCUSSION

Fredia’s five issues on appeal can be summarized as a single argument that the trial

court erred in determining that she was properly served. She maintains that she was never served

with process and that she did not reside at the address listed on the return at the time of the alleged

service. As an initial matter, we note that it was not necessary for Fredia to be served with process

at her place of residence. See Tex. R. Civ. P. 106(b) (stating that alternative methods of service may

be allowed if attempts at service by personal delivery or mail have been unsuccessful at “defendant’s

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

found”) (emphasis added).

“prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake.” Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Because Fredia’s petition for bill of review is based solely on her allegation of non-service, these elements are not at issue.

3 In support of her argument, Fredia argues that the return of service is defective

because it does not include a “legible signature” or a certified mail receipt. Return of service is

governed by Rule 107 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 107. The return

must state “when the citation was served and the manner of service and be signed by the officer

officially or by the authorized person.” Id. The return in the present case fulfills these requirements,

stating that the citation was served at 7:48 a.m. on August 26, 2006, by personal delivery to

Fredia Alexander. The return also provides a description of Fredia, which she testified was accurate.

While Rule 107 does require a return receipt with the addressee’s signature if the citation is served

by registered or certified mail, the return in this case unequivocally states that the method of service

was personal delivery, as opposed to registered or certified mail, and therefore no return receipt or

signature by the addressee was required. See id. Finally, the return in this case is signed by the

process server and sworn to as required by Rule 107. While it is true that the process server’s

signature is difficult to decipher, there is no requirement in the rules of civil procedure that the

signature must be legible in order to be valid.

Fredia also raises a complaint that the “affidavit is completely blank,” presumably

in reference to an argument made by her counsel at the bill-of-review hearing, in which he argued

that the return was improper because “there’s not an affidavit of service on the back.” Her counsel

further stated, “If there was an affidavit of service and it’s blank, I’m curious, but we don’t have any

kind of business records from the process server.” In response, Allan’s counsel argued, “[W]e have

a sworn affidavit that’s filed with the Court that says that he . . . served Ms. Alexander on that day

at that address, has been sworn to, there’s nothing on the back that [sic] any affidavit of service. This

is sworn. This is a sworn to document, Your Honor.” The record reflects that the return of service

4 is in fact a sworn document complying with Rule 107. It is therefore immaterial that there is no

additional “affidavit of service.”

A claim of lack of service is a question of fact that must be resolved by the trier of

fact. Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972). In this case, the trial court, acting as trier of

fact, found in favor of Allan on the issue of whether Fredia was properly served. In addition, a return

of service “has long been considered prima facie evidence of the facts recited therein.” Primate

Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); see also Ward, 488 S.W.2d

at 738 (“[T]he testimony of the moving party alone, without corroborating facts or circumstances,

is not sufficient to overcome the presumption that the officer’s return on the citation was correct.”).

The return of service in this case states that Fredia was served at her mother’s address on

August 26, 2006 at 7:48 a.m. In the face of this evidence, and the lack of any evidence to the

contrary other than Fredia’s testimony, we cannot conclude that the trial court abused its discretion

in denying her petition for bill of review.

CONCLUSION

We affirm the trial court’s judgment denying the bill of review.

__________________________________________

Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: February 19, 2010