Opinion
No. 10-03-00276-CV.
Opinion delivered and filed May 5, 2004.
Appeal from the 74th District Court McLennan County, Texas, Trial Court # 2003-996-3.
Reversed and remanded.
J. Robert Miller, Jr. and M. Jason Ankele, Miller Brown, L.L.P., Dallas, TX, for appellant/relator.
Robin E. Baird, Montez, Williams Baird, P.C., Waco, TX, and Greg White, McGregor White, Waco, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Discount Rental, Inc. brings this restricted appeal from a default judgment rendered in favor of William and Barbara Carter. Discount Rental presents two issues in which it contends: (1) it was not properly served with citation; and (2) the damages awarded to the Carters are not supported by the pleadings or the evidence.
Discount Rental contends in its first issue that it was not properly served with citation because: (1) the person served was not authorized to receive process on its behalf; (2) the record does not reflect that the process server exercised reasonable diligence in attempting to serve its registered agent before resorting to substituted service; and (3) the return of service does not state that the person served was over sixteen years of age or the address or location where citation was served.
A restricted appeal is a direct attack on a judgment by a party who did not participate at trial. See TEX. R. APP. P. 30; Fazio v. Newman, 113 S.W.3d 747, 748 (Tex. App.-Eastland 2003, pet. denied); Campbell v. Fincher, 72 S.W.3d 723, 724 (Tex. App.-Waco 2002, no pet.). To prevail, the appellant must show error apparent from the face of the record. See Fazio, 113 S.W.3d at 748; Campbell, 72 S.W.3d at 724.
A default judgment will be set aside if the record does not demonstrate strict compliance with the Rules of Civil Procedure governing service of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); N. Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 717-18 (Tex. App.-Austin 2003, pet. denied). No presumptions are entertained in favor of valid issuance, service, and return of citation in a restricted appeal. N. Carolina Mut. Life Ins. Co., 124 S.W.3d at 717; accord Primate Constr., 884 S.W.2d at 152.
The petition recites (and the parties do not dispute) that Bill Perry is Discount Rental's registered agent for service of process. After three unsuccessful attempts to serve Perry, the Carters filed a motion for substituted service. They attached the affidavit of the private process server previously authorized by the court. The affidavit recites in pertinent part:
I. March 26, 2003 at approximately 4:30 p.m., Glen Leake, the General Manager informed me that Mr. Perry is rarely around. I left my card and phone number with the General Manager with a request that he have Mr. Perry call me;
I. March 28, 2003 at approximately 4:30 p.m. I returned to Discount Rental, Inc. and asked the General Manager, Glen Leake for Bill Perry. The General Manager said that he forgot to give Mr. Perry my number and that Mr. Perry is rarely there; and
I. April 1, 2003 at approximately 4:30 p.m. I returned to Discount Rental, Inc. and asked for Bill Perry. I was told again that Mr. Perry is rarely there and that they have not seen him in a month.
The court granted the Carters' motion for substituted service, authorizing service on "any person 16 years of age or older at . . . Defendant's usual place of business."
The return of service indicates that the process server executed the citation by "delivering to the defendant, to-wit: Discount Rental per rule 106 on Glen Leake at 3:35 o'clock p.m. April 11, 2003; each, in person, a true copy of this citation with a true and correct copy of the Plaintiff's Original Petition attached thereto. . . ."
Rule 106(b)(1) authorizes substituted service on "anyone over sixteen years of age at the location specified." TEX. R. CIV. P. 106(b)(1). The record contains nothing to reflect that Glen Leake was over sixteen years of age at the time of service. Cf. Mylonas v. Tex. Com. Bank, 678 S.W.2d 519, 523 (Tex. App.-Houston [14th Dist.] 1984, no writ) (return of service amended to reflect delivery to person over sixteen years of age). We cannot presume that he was. See Primate Constr., 884 S.W.2d at 152; N. Carolina Mut. Life Ins. Co., 124 S.W.3d at 717.
Because the record does not demonstrate strict compliance with Rule 106(b)(1), we sustain Discount Rental's first issue. We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.