Opinion
No. 05-15-01393-CV
05-23-2017
DOUGLAS B. CLARK III, KEVIN PARTICK, NOISE4GOOD, L.L.C., MGOOD, L.L.C., AND 4GOOD DIGITAL, L.L.C., Appellants v. DEBORAH NEWMAN, PLATINUM XYZ, LLC, AND JDC ENTERPRISES, Appellees
On Appeal from the 162nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-00924
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Schenck
Appellants perfected this restricted appeal from a no-answer default judgment entered against them after substituted service of process. On appeal, appellants assert the default judgment should be set aside because of defective service. We reverse the trial court's judgment as to Douglas B. Clark III ("Clark"), Noise4Good, LLC ("N4G"), mGood, L.L.C. ("mGood"), and 4Good Digital, L.L.C. ("Digital") and remand claims against them for further proceedings. We affirm the trial court's judgment as to Kevin Patrick ("Patrick"). We issue this memorandum opinion because all issues are settled in law. TEX. R. APP. P. 47.4.
BACKGROUND
Appellees, Deborah Newman, Platinum XYZ, LLC, and JDC Enterprises, Inc., sued appellants over various business dealings among the parties. After private process servers attempted to serve appellants without success, appellees filed motions for substituted service. In their motions, appellees requested that the trial court authorize service on Clark, individually and as the registered agent of N4G, mGood, and Digital, by leaving a copy of the citations with the petition attached with anyone over sixteen years of age at the security office of the gated community in which Clark lived, and service on Patrick by leaving a copy of the citation with the petition attached with anyone over sixteen years of age or affixed to the front door of his usual place of business in New York. The trial court authorized substituted service requested.
Thereafter, appellees filed a motion for default judgment against appellants. The trial court granted the motion and entered a default judgment against appellants awarding appellees $230,000. Appellants did not file a motion for new trial, and they timely filed this restricted appeal.
DISCUSSION
I. Restricted Appeal
To obtain a reversal of an underlying judgment in a restricted appeal, a party must show: (1) a notice of restricted appeal was filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment of which the party complains and did not file a timely post-judgment motion; and (4) error is apparent on the face of the record. TEX. R. APP. P. 26.1(c) and 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Dolly v. Aethos Commc'ns Sys., Inc., 10 S.W.3d 384, 387-88 (Tex. App.—Dallas 2000, no pet.). Elements one through three are not contested here; thus, the only issue is whether error is apparent on the face of the record. Whether error is apparent on the face of the record before this Court, depends on resolution of the issue of proper service. See Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007).
II. Error on the Face of the Record
In contrast to the usual rule that all presumptions—including valid issuance, service, and return of citation—will be made in support of a judgment, no such presumptions apply to a direct attack on a default judgment. See Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Rather, the record must affirmatively show strict compliance with the applicable rules relating to service of process. See McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Dolly, 10 S.W.3d at 388. Even actual notice to a defendant is not sufficient to convey jurisdiction on the trial court and will not serve to cure defective service. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Whether service was in strict compliance with the rules is a question of law we review de novo. Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.] 2005, no pet.). It is the responsibility of the party requesting service to ensure both that proper service is accomplished and that the record reflects proper service. Id. at 869.
Appellants assert there are three instances of improper service apparent on the face of the record. Namely: (1) the affidavits submitted to support substituted service were insufficient to support the location for service and to identify the person to receive service; (2) the citations were defective; and (3) the orders authorizing substituted service on Digital and Patrick were flawed because they recited the manner of service ordered will be reasonably effective to give mGood notice of the suit, not Digital and Patrick.
III. Substituted Service
Because appellees obtained a default judgment after substituted service, they had the burden to prove that appellants were served in the manner required by the applicable statute. See Dolly, 10 S.W.3d at 388. Virtually any deviation from the applicable statute will be sufficient to set aside a default judgment in a restricted appeal. Id. Strict compliance is especially important when substituted service under Texas Rule of Civil Procedure 106 is involved. Id.
Under Rule 106, when the traditional methods of service of process—in person or via certified mail—are unsuccessful, the trial court may, "upon motion supported by affidavit," authorize service in a 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). The supporting affidavit must state: (1) "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 (2) the specific facts showing that traditional service has been attempted "at the location named in such affidavit but has not been successful." Id. Upon such a showing, the trial 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 (the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found); 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.
IV. Clark, N4G, mGood, and Digital
Appellees submitted the affidavits of private process server Joe Clewis ("Clewis") in support of their motions for substituted service on Clark, N4G, mGood, and Digital. Clewis attested he made four attempts, over an eight day period, to serve Clark, individually and as the registered agent for N4G, mGood, and Digital, at Clark's usual abode located at 1500 Bonham Court, Irving, Texas without success. He indicated that Clark lives in a gated community and that on each service attempt he was unable to access the home but, instead, spoke with a guard who attempted to reach Clark by phone and left voice messages for him. He stated his belief that the most reasonable, effective way to give Clark, N4G, mGood, and Digital actual notice of the suit was to "deliver CITATION together with PLAINTIFFS' ORIGINAL PETITION AND REQUEST FOR DISCLOSURES to anyone over the age of sixteen (16), or by affixing to the front door at the defendant's usual place of Abode, 1500 BONHAM COURT, IRVING, TX 75038 or by leaving with the security guard at the gated entrance to the property." The trial court ordered substituted service on Clark, N4G, mGood, and Digital by the third method specified by Clewis—leaving a copy of the citation with the petition attached with anyone over sixteen years of age located at the security office for the gated community of 1500 Bonham Court, Irving, Texas.
In order for service upon someone at the security office to be effective on Clark, individually and as the registered agent of N4G, mGood, and Digital, appellees had to establish that the security office is Clark's usual place of abode or business, or a place where Clark could probably be found, or would be reasonably effective to give Clark notice of the suit. TEX. R. CIV. P. 106(b). Clearly the security office is not Clark's usual place of abode or business. Appellees have provided no controlling authority to support a conclusion that Clark's abode extends to the security office, and we find none. In addition, there is no evidence Clark could probably be found at the security office.
As to whether leaving the citation and petition at the security office would be reasonably effective to give Clark notice of the suit, to justify substituted service pursuant to the second subsection of rule 106(b), we do not quarrel with the concern stated in cases like Bein v. Brechtel-Johim Group, Inc., 6 Cal.App.4th 1387, 1393 (1992) and Delancy v. Tobias, 26 So.3d 77, 80 (Fla. 3rd DCA 2010) that while litigants have the right to choose their abodes, they do not have the right to control who may sue or serve them by denying them physical access. We recognize that under some circumstances leaving the citation and petition with a security guard may be reasonable and necessary in view of obstacles in effecting service more directly. But where, as here, service is attempted by leaving it with an individual who is not located at the abode, business, or a place where the defendant can probably be found, and service has not been attempted by other direct means of personal service, like U.S. mail (signature required) or commercial delivery services such as United Parcel Service or Federal Express (signature required), resort to the guard to effect service is not reasonable.
Given our obligation to rigidly enforce rules governing service when a default judgment is entered, Hubicki, 226 S.W.3d at 408, we cannot conclude Clewis's affidavits show strict compliance with rule 106(b). Therefore, the trial court erred in granting substituted service on Clark, N4G, mGood, and Digital. We sustain appellant's first issue as to Clark, N4G, mGood, and Digital.
V. Patrick
As to Patrick, appellees submitted the affidavit of private process server Krystyna Rzaca ("Rzaca") in support of their motion for substituted service. Rzaca attested she made three attempts to serve Patrick at his usual place of business at 110 East 25th Street, New York, NY, without success. Thus, appellees showed reasonable diligence in attempting to effectuate personal service on Patrick and satisfied rule 106(b). See, e.g., McCluskey v. Transwestern Publ'g LLC, No. 05-06-01444-CV, 2007 WL 4239239, at *2 (Tex. App.—Dallas Dec. 4, 2007, no pet.).
We must now determine whether the record establishes leaving a copy of the citation with the petition attached with anyone over sixteen years of age at Patrick's usual place of business at Noise4Good 110 East 25th Street, New York, NY, or affixed to the front door of said business, constitutes leaving the citation and petition with someone at Patrick's usual place of business or is otherwise reasonably effective to give Clark notice of the suit. TEX. R. CIV. P. 106(b)(1)-(2).
In support of this substituted service, appellees presented Rzaca's affidavit in which she states she believes that the most reasonable, effective way to give Patrick actual notice of the suit is to "deliver a copy of the CITATION, PLAINTIFFS' ORIGINAL PETITION AND REQUEST FOR DISCLOSURES to anyone over the age of sixteen (16), or by affixing to the front door at the defendant's usual place of Business, 110 EAST 25TH STREET, NEW YORK, NY 10010." In addition, Rzaca stated this business location is an open office where people can come to have business meetings. She indicated she spoke with the receptionist there who confirmed that Patrick is using an office at this location but he only comes there when he has a meeting scheduled and that she did not know when Patrick would be coming in.
To affirmatively show compliance with rule 106, the affiant must unequivocally state the usual place of business of the defendant. See James v. Comm'n for Lawyer Discipline, 310 S.W.3d 586, 590-91 (Tex. App.—Dallas 2010, no pet.); Miller v. Short, How, Frels & Tredoux, No. 05-93-000326-CV, 1994 WL 67720, at *2 (Tex. App.—Dallas Mar. 4, 1994, no writ). Because Rzaca's affidavit establishes Patrick was using an office at the location specified for substituted service at the time of service, and because she unequivocally stated the specified location is Patrick's usual place of business, there is evidence of probative value to support the trial court's order of substituted service on Patrick. See Garrels v. Wales Transp., 706 S.W.2d 757, 759 (Tex. App.—Dallas 1986, no writ); see also Williams v. Nexplore Corp., No. 05-09-00621-CV, 2010 WL 4945364, at *2-3 (Tex. App.—Dallas Dec. 7, 2010, pet. denied).
Next, appellants contend the affidavit of Rzaca does not support substituted service because there is one numerical typographical error in the zip code stated as part of Patrick's business address. More particularly, appellants claim because the process server states she attempted service at 110 East 25th Street, New York, NY, 10015 but then identifies 110 East 25th Street, New York, NY, 10010 as Patrick's usual place of business, there is error apparent on the face of the record. We cannot agree. The record shows that based upon Rzaca's affidavit the court ordered substituted service on Patrick at 110 East 25th Street, New York, NY, 10010, the address with the correct zip code. In addition, the citation and return of service contain the correct zip code. Consequently, service was not defective so as to deprive the trial court of jurisdiction. See, e.g., Cotton Patch Café v. McCarty, No. 02-05-082-CV, 2006 WL 563307, at *7 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.)(one numeral error in zip code on return of service did not render service defective).
Because the affidavits supporting the substituted service on Patrick are not defective, we resolve appellants' first issue against Patrick.
VI. Citations
Because we have sustained appellants' first issue as to Clark, N4G, mGood, and Digital, we consider their second issue as it related to Patrick only. See TEX. R. APP. P. 47.1. In their second issue, appellants argue the default judgment must be set aside because the citations do not strictly comply with rule 99 of the Texas Rules of Civil Procedure. More particularly, appellants claim the citations are defective in three ways. First, they do not list all parties, second, the citations do not completely show the name and address of the attorneys for appellees, and third, they do not properly warn that judgment may be granted for the relief requested in the petition.
A. Rule 99
Service of citation must be in strict compliance with the rules of civil procedure to establish jurisdiction over a defendant and support a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). If strict compliance is not shown, the service of process is invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Strict compliance with the rules however does not require obeisance to the minutest detail. Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 290 (Tex. App.—Dallas 2003, no pet.). As long as the record as a whole, including the petition, citation, and return, shows that the citation was served on the defendant in the suit, service of process will not be invalidated. Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.—Corpus Christi 1996, no writ).
To be valid, a citation must comply with twelve requirements. The citation must
(1) be styled "The State of Texas."TEX. R. CIV. P. 99b. We will discuss only the challenged requirements asserted by Patrick.
(2) be signed by the clerk under seal of court.
(3) contain name and location of the court.
(4) show date of filing of the petition.
(5) show date of issuance of citation.
(6) show file number.
(7) show names of parties.
(8) be directed to the defendant.
(9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff.
(10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation.
(11) contain address of the clerk.
(12) notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition.
B. Parties
The citation to Patrick identifies the style of the case as "Deborah Newman, et al vs. Douglas B Clark III, et al" and is addressed to Patrick and apprises Patrick that "You have been sued." In addition, the petition is attached to the citation and names all of the plaintiffs and all of the defendants. Space constraints in the citation form dictate the number of parties the clerk's office can include in the style. There can be no doubt that with the addition of the "et al" designations, the fact that the citation is directed to Patrick and notifies him that he has been sued, and has attached a petition that clearly identifies the plaintiffs and defendants, that the citation to Patrick fulfilled the requirement that the citation show the names of parties.
C. Attorney for Plaintiffs
The petition identifies Plaintiffs' attorney as Martha Hardwick Hofmeister. The citation to Patrick identifies the attorney for plaintiff as MARTHA HARDWICK HOFMEISTE, with a portion of the last initial of her name, "R," cut off. It is apparent from the record that the partial deletion of the letter "R" was due to space constraints in the citation form. We conclude the citations strictly complied with rule 99b's requirement that the citation contain the name of the attorney for the plaintiff. See, e.g., Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.—Houston [14th Dist.] 1987, writ ref'd n.r.e) (finding strict compliance with the rules of service where a registered agent's name was incorrectly spelled "Philipee" instead of "Philippe"); Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex. App.—San Antonio 1987, no writ) (holding that the misspelling of the defendant's name as "Cockrall" rather than "Cockrell" in the citation did not invalidate service of process).
D. Warning Concerning the Effect of Failing to Answer
Appellants claim the citation does not properly warn that judgment may be granted for the relief requested in the petition. We disagree. The citation warned Patrick that "[i]f you or your attorney do not file a written answer . . . a default judgment may be taken against you." The citation further states that a copy of the petition accompanies the citation. The petition sets forth the relief demanded. Appellants claim the citation includes a short summary of the requested relief: "REQ FOR DISCLOSURE" but in actuality, the citations state "your answer should be addressed to the clerk . . . For suit . . . the nature of which is as follows: Suit on OTHER (CIVIL) etc. as shown on petition REQ FOR DISCLOSURE, a copy of which accompanies this citation." The petition accompanying the citations is titled "Plaintiffs' Original Petition and Request for Disclosure." The citation was sufficient to put Patrick on notice that he would be subject to a default judgment if he did not answer, for relief set forth in the petition that accompanied the citation, in compliance with the rules of service.
Because the citation to Patrick strictly complied with rule 99b, we overrule appellants' second issue.
VII. Substituted Service Orders
In their third issue, appellants argue the trial court incorrectly analyzed service on Digital and Patrick because the orders authorizing substituted service on them recited the manner of service ordered will be reasonably effective to give mGood notice of the suit, not Digital and Patrick. Because we have concluded service on Digital was defective, we address appellants' third issue as it respects Patrick only. See TEX. R. APP. P. 47.1. While the order references mGood in one place, it also recites that the trial court considered the motion and supporting affidavit for substituted service on Patrick, which establish the manner of service ordered would be reasonably effective to give Patrick notice of the suit. We overrule appellants' third issue.
CONCLUSION
Error is apparent on the face of the record before this Court as to Clark, N4G, mGood, and Digital. Consequently, we reverse the trial court's default judgment against them and remand claims against them for further proceedings. We affirm the trial court's default judgment against Patrick. Because defendants appeared through this restricted appeal, no new service of process is necessary. See TEX. R. CIV. P. 123.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 151393F.P05
JUDGMENT
On Appeal from the 162nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-15-00924.
Opinion delivered by Justice Schenck. Justices Bridges and Evans participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's default judgment against Douglas B. Clark III, Noise4Good, LLC, mGood, L.L.C., and 4Good Digital, L.L.C. In all other respects, the trial court's judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 23th day of May, 2017.