Opinion
No. 14-03-00296-CV.
Memorandum Opinion filed March 25, 2004.
On Appeal from the County Court at Law Waller County, Texas, Trial Court Cause No. 02-11-16,600.
Reversed and Remanded.
Panel consists of Justices YATES, HUDSON, and FOWLER.
MEMORANDUM OPINION
Gayla Granderson ("Granderson") appeals the trial court's denial of her bill of review. Through a bill of review, Grandson requested a new trial in an attempt to set aside a default judgment rendered against her in a child custody suit. In her bill of review, Granderson challenges service. Namely, she argues that the service was defective because she did not receive a complete copy of Ross's petition. A bill of review hearing was held solely on the issue of service. Finding that service had been properly completed on Granderson, the trial court denied the bill of review. We reverse and remand.
The underlying lawsuit, cause number 95-01-13,327, concerned custody of three minor children. Appellee, Cornelius A. Ross, III, ("Ross") filed a motion to modify the parent child relationship asking to be named as the managing conservator. The trial court granted Ross's request at a hearing held on July 2, 2002. Granderson received actual notice of the default judgment on July 2, 2002, when Ross arrived to pick the children up.
We review the grant or denial of a bill of review under an abuse of discretion standard. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The trial court may only be reversed "if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles." Id. (citing Beamont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991)). The appellate court is not permitted to substitute its judgment merely because it disagrees with the trial court's decision. Id. There is no abuse of discretion where there is some evidence that reasonably supports the trial court's decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
To prevail upon a bill of review, a plaintiff must establish: "(1) a meritorious defense to the cause of action alleged to support the judgment; (2) an excuse justifying the failure to make that defense which is based on the fraud, accident or wrongful act of the opposing party; and (3) an excuse unmixed with the fault or negligence of the petitioner." Beck v. Beck, 771 S.W.2d 141, 141 (Tex. 1989). However, the plaintiff is not required to prove a meritorious defense if her claim is that the judgment is void for lack of service. Peralta v. Heights Med. Ctr., 485 U.S. 80, 86 (1988). Additionally, by alleging lack of service, the plaintiff need not prove that her failure to respond was based upon the fraud, accident, or wrongful act of the opposing party. Winrock Houston Assocs., Ltd. v. Bergstrom, 879 S.W.2d 144, 149 (Tex. App.-Houston [14th Dist.] 1994, no writ).
The no-negligence requirement necessarily requires the petitioner to have exhausted all of her legal remedies before pursuing a bill of review. Winrock Houston Assocs., Ltd. v. Bergstrom, 879 S.W.2d 144, 149 (Tex. App.-Houston [14th Dist.] 1994, no writ). Because Granderson received actual notice of the default judgment on the day it was rendered against her it is possible that she could have pursued other legal remedies, e.g., a motion for new trial or restricted appeal, to set aside the default judgment. See Dispensa v. Univ. State Bank, 987 S.W.2d 923, 928 (Tex. App.-Houston [14th Dist.] 1999, no pet.). However we do not discuss this issue as it was not raised in the trial court or on appeal. Moreover, the state of the record does not allow us to analyze this issue.
A bill of review is a direct attack on a default judgment. Dispensa v. Univ. State Bank, 987 S.W.2d 923, 925 n. 1 (Tex. App.-Houston [14th Dist.] 1999, no pet.). A default judgment cannot withstand a direct attack where the defendant alleges that she was not served in strict compliance with the Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). "There are no presumptions in favor of valid issuance, service, and return of citation" in a direct attack. Uvalde Country Club v. Martin Linen Supply, Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam). The service of process is invalid and without effect if there is not strict compliance. Id. The Rules of Civil Procedure require that the defendant be served with "a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto." TEX. R. CIV. P. 106. The return "shall state when the citation was served and the manner of service." TEX. R. CIV. P. 107. Moreover, the responsibility for ensuring proper service lies with party requesting service and not the process server. TEX. R. CIV. P. 99(a); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (per curiam).
There is some evidence Ross knew the service was defective. Granderson contacted Sonya Wallace after receiving the documents from Deputy Renken. Wallace, an attorney, had previously represented Granderson in other matters. Granderson did not have the means to retain Wallace as her attorney; however, Wallace agreed, as a matter of courtesy, to contact Ross's attorney, Liza Greene, and let her know that Granderson may not have been properly served. Greene confirmed speaking with Wallace at the bill of review hearing. Greene stated that she went ahead with the default judgment under the presumption that if there had been a problem with service that Wallace would have filed a motion to quash or special appearance to protect her client's rights. Greene also explained that she never received anything in writing from Wallace referencing a complaint about service or even that Wallace was representing Granderson. Ultimately, Greene stated that they "relied on the documentation that was in the Court's file indicating that [Granderson] had been properly served on May 20th and — at the Sheriff's Department."
A review of the record establishes a failure to strictly comply with the Rules of Civil Procedure. Deputy Renken ("Renken") was the deputy who attempted to serve Granderson. He explained at the bill of review hearing that Granderson's citation came to the sheriff's department without a physical address, which meant that service would have to be completed when she arrived at the county courthouse. On May 20, 2002, Granderson arrived at the Waller County Courthouse to pick up her child-support check. For whatever reason, the deputies assigned to the courthouse were not available. Speaking with Granderson on the telephone, Renken asked her to come to the sheriff's office to pick up some papers. Granderson agreed, and Renken began looking for the documents. After he found them, but before Granderson arrived, he quickly looked through the papers and concluded that they were not complete.
Concerned that the documents were not complete, Renken contacted the district clerk's office to compare what he had with what was in the clerk's file. After telling the deputy clerk that he had a citation and one piece of paper, the clerk told Renken that his copy "seemed" to be complete. Granderson arrived and Renken delivered the documents in his possession and executed the sheriff's return. However, still concerned about potentially missing pages, he called the district clerk's office again and asked them to prepare a new copy of the documents on file in the clerk's office. He asked Granderson to go over to the district clerk's office to pick up the new packet. He followed up with a deputy clerk who stated that Granderson had picked up the newly copied documents. When questioned by the court whether Granderson had received the entire petition from him, he stated that he was certain that she had not.
Finding that service was complete, the trial court denied the bill of review. In explaining its denial, the trial court considered the "undisputed testimony" that the officer did not believe that the documents were complete, the conversation between Renken and the deputy district clerk that the documents "`sounded'" complete, and the fact that Renken confirmed that Granderson picked up the new copy at the district clerk's office.
We dismiss any attempted reliance on the fact that Granderson may have picked up a new copy of the petition after she had been "served" by Renken. Actual notice to a defendant, without proper service, does not confer jurisdiction to a trial court to render a default judgment. Wilson, 800 S.W.2d at 836. Accordingly, it is immaterial whether she picked up the new copy because she should have been properly served by Renken at the sheriff's office as indicated on the sheriff's return. See Primate, 884 S.W.2d at 152-53.
We find an abuse of discretion as the evidence does not reasonably support the trial court's finding of adequate service, which requires strict compliance with the Rules of Civil Procedure. After reviewing the record, it is apparent that Granderson did not receive a complete petition from Renken at the sheriff's office. In addition to Renken's repeated statements at the bill of review hearing that he did not believe the one-page petition was complete, we look to the document itself. The petition in Ross's child-custody suit is a three-paged document, organized by numbered paragraphs, and concludes "respectfully submitted" with Ross's attorney's signature. Considering the size and simplicity of the document, it is difficult, if not impossible, to see how Renken could have been mistaken in his belief that the petition was incomplete.
Finding an abuse of discretion, we reverse and remand this case to the trial court.