Opinion
No. 05-05-01082-CV
Opinion issued June 14, 2006.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-298-05.
Affirmed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
MEMORANDUM OPINION
In this restricted appeal, David Blackburn challenges the default judgment entered in favor of Citibank (South Dakota) N.A. In his sole issue, Blackburn contends the trial judge erred in entering the default judgment because the return of citation is defective and not in compliance with the court's order. According to Blackburn, the return is defective because it recites the name "David B. Blackburn" as the person served while the original petition and citation name "David Brian Blackburn." For the reasons that follow, we disagree and affirm the trial court's judgment.
Appellate rule 30 provides
A party who did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals.
Tex.R.App.P. 30. Review under this type of appeal is limited to errors apparent on the face of the record. Fid. Guar. Ins. Co. v. Drewery Const. Co., Inc., 186 S.W.3d 571, 573 (Tex. 2006) (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004)).
When a default judgment is attacked by restricted appeal, we do not indulge any presumptions in favor of valid issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Failure to show strict compliance with the rules relating to proper service renders any attempted service invalid and requires us to set aside the default judgment. Uvalde Country Club, 690 S.W.2d at 885. In addition, strict compliance must be affirmatively shown in the transcript unless the defendant voluntarily appears before judgment. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). Strict compliance with the rules does not require "obeisance to the minutest detail." Williams v. Williams, 150 S.W.3d 436, 443-44 (Tex.App.-Austin 2004, pet. denied). 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. Williams, 150 S.W.3d at 443-44.
Texas Rule of Civil Procedure 106(b) authorizes substituted service on a defendant when service has been attempted under rule 106(a), but has been unsuccessful. See Tex. R. Civ. P. 106(b). Under rule 106(b)(1), after a plaintiff files a motion and supporting affidavit, the judge may authorize service 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." See Tex. R. Civ. P. 106(b)(1). When service is executed by an alternate method under rule 106(b), proof of service "shall be made in the manner ordered by the court." Tex. R. Civ. P. 107.
Here, the process server's return states that service was executed by delivering to
DAVID B. BLACKBURN AT 4808 NOCONA DR., PLANO, TX 75024, BY HANDING TO A MAN OVER THE AGE OF SIXTEEN YEARS PER TRCP RULE 106.
The trial judge's order granting substituted service authorized service by
leaving a true copy of the Citation, with a copy of the Petition in this cause affixed to the door at 4808 NOCONA DR., PLANO TX 75024-2470, or with anyone over sixteen (16) years of age at said address.
The method of service set out in the process server's return is the one of the methods authorized by the trial judge's order. Because the return shows service "in the manner ordered by the court," we conclude the service strictly complied with rules 106(b) and 107. Accordingly, the process server's return was not fatally defective.
In reaching our decision, we reject Blackburn's argument that service was defective because the return recited that service was executed on "David B. Blackburn at 4808 Nocona Dr., Plano, TX 75024" rather than "David Brian Blackburn at 4808 Nocona Dr., Plano, TX 75024." In support of his argument, Blackburn cites-but does not provide any meaningful discussion of-the holdings of three cases. Our review of those cases shows they are distinguishable from the facts and circumstances in Blackburn's case.
In each of the cases cited, the name on the return differed in such a manner as to alter the identity of the party or individual sued. In Hendon v. Pugh, 46 Tex. 211, 212 (1876), the citation listed J.N. Hendon when the individual sued was J.W. Hendon. In Hercules Concrete Pumping Service, Inc. v. Bencon Management General Contracting Corporation, 62 S.W.3d 308, 310-11 (Tex.App.-Houston [1st] 2001, pet. denied), citation was served by delivery to George W. Brock of Hercules Concrete Pumping; however, that language did not establish that Brock was "in fact the defendant's registered agent for service of process . . . [n]or does it establish that the `Hercules Concrete Pumping' served was the defendant below, Hercules Concrete Pumping Service, Inc." Hercules Concrete Pumping Service, Inc., 62 S.W.3d at 310. Finally, in Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985), the supreme court concluded the record did not reflect strict compliance because it did not show "that the person served with citation, `Henry Bunting,' was authorized to receive service or that he was connected with the appellant." Rather, the petition in that case had alleged the registered agent was "Henry Bunting, Jr." Uvalde Country Club, 690 S.W.2d at 885. Each of these cases shows a citation in which the defendant's name did not match the name stated in the petition in a material way. In contrast, in this case, the variance between Blackburn's name in the process server's return and the name set out in the petition and citation did not alter the identity of the person sued. The return simply listed Blackburn's middle initial "B." instead of his full middle name "Brian." Because the variance in this case did not alter the identity of the person sued, we conclude the process server's return was not fatally defective. See Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 290 (Tex.App.-Dallas 2003, no pet.) (omission of initial "D." from return did not invalidate service); see also Stephenson v. Corp. Servs., Inc., 650 S.W.2d 181, 184 (Tex.App.-Tyler 1983, writ ref'd n.r.e.) (service not defective even though citation was directed to Jim Stephenson, president, and return reflected service on James Stephenson, president). Accordingly, we overrule Blackburn's sole issue.
We affirm the trial court's judgment.