Opinion
05-21-01081-CV
07-03-2023
ABUBAKER KHAN MOHAMMAD, Appellant v. ARMANDO SANCHEZ-RANGEL AND VALENTINA RIVERA, Appellee
On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-16254
Before Justices Reichek, and Goldstein, and Kennedy
The Honorable Justice David J. Schenck was originally a member of this panel. The Honorable Justice Kennedy succeeded Justice Schenck when his term expired on December 31, 2022. Justice Kennedy has reviewed the briefs and the record.
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE.
In this restricted appeal, appellant Abubaker Khan Mohammad appeals the entry of default judgment against him and in favor of appellants Armando Sanchez-Rangel and Valentina Rivera. In his sole issue, Mohammad argues that the default judgment is void because he was not served with the citation. We affirm in this memorandum opinion. Tex.R.App.P. 47.2(a).
BACKGROUND
Appellees filed their original petition on October 29, 2020. They alleged that on August 30, 2020, they were driving home on East Meadow Lane and Highway 75 in Dallas, Texas. When their light turned green, Sanchez-Rangel drove into the intersection, at which time their car was struck by a car being driven by Mohammad. Appellees asserted claims for negligence and gross negligence and sought recovery of damages for property loss, costs of medical care, pain and suffering, loss of consortium, and fear of future disease or condition. They also sought exemplary damages.
Appellees asserted in their petition that Mohammad could be served with process at his home at 538 East Spring Valley Road, Richardson, Texas, 75081. The District Clerk issued a citation bearing that address. The citation and return of service were filed on November 16, 2020. On the filed version of the citation, the address is crossed out with a notation "B/A" next to it. Underneath the crossed-out address appears a new, handwritten address: "2029 Old Mill Run, Garland, Texas 75044." The new address has the notation "N/A" next to it. The return of service was signed by a private process server, Michael D. Dupree. In the return, Dupree certified that he served Mohammed with process on November 14, 2020, at 10:30 a.m. at the Garland address above. The return also bears a notary stamp and a jurat stating it was "[s]igned and sworn to by the said Michael D. Dupree before me this 16 day of October, 2020."
Neither party explains what the notations "B/A" and "N/A" mean in this context.
The italicized language indicates where the notary filled in blanks on the return-of-service form.
On February 1, 2021, appellees moved for default judgment on the grounds that Mohammad had not answered the lawsuit. The amended certificate of last known address contained both addresses from the citation, one as last known address and one as the addressed where served. On July 29, 2021, the trial court entered default judgment in appellees' favor, awarding them 32,377.47 in damages. Appellees then filed a motion for nunc pro tunc default judgment, arguing that the damages award should be increased. On August 30, 2021, the trial court granted the motion and entered a nunc pro tunc default judgment awarding appellees $43,377.27 in damages. On December 7, 2021, Mohammad filed his notice of restricted appeal.
DISCUSSION
Mohammad asserts that the trial court erred in entering default judgment due to defective service of process. Mohammad argues that the default judgment is void based on two alleged errors on the face of the record: (1) the address listed for him in the original petition and citation do not match the address in the return of service, and (2) the notary's jurat in the return of service states that the process server swore to the facts of the service in October, a month before he allegedly effectuated service.
A party can prevail in a restricted appeal only if: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all the papers on file before the judgment as well as any reporter's record. Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 180 S.W.3d 903, 905 (Tex. App.-Dallas 2005, pet. denied). Here, the record establishes, and neither party disputes, that the first three elements are met. We must therefore decide whether error appears on the face of the record.
Strict compliance with the rules governing service of citation is mandatory if a default judgment is to withstand an attack on appeal. Lejeune, 297 S.W.3d at 256. There is no presumption in favor of proper issuance, service, and return of citation. Greystar, LLC v. Adams, 426 S.W.3d 861, 866 (Tex. App.-Dallas 2014, no pet.). If the record fails to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, there is error apparent on the face of the record and attempted service of process is invalid and of no effect. Id. When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Id.
We begin with Mohammad's contention regarding the error in his address. When a plaintiff files a petition initiating the lawsuit, the clerk of the trial court must, if requested, "issue a citation and deliver the citation and deliver the citation as directed by" the plaintiff. Tex.R.Civ.P. 99(a). The citation must:
(1) be styled "The State of Texas," (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 and answer, judgment by default may be rendered for the relief demanded in the petition, and (13) notify the defendant that the defendant may be required to make initial disclosures.Tex. R. Civ. P. 99(b). Once the citation is served, the process server must execute a return of service, which may be endorsed on or attached to the citation. Tex.R.Civ.P. 107(a). The return, together with any document to which it is attached, must include the following information:
(1) the cause number and case name;
(2) the court in which the case is filed;
(3) a description of what was served;
(4) the date and time the process was received for service;
(5) the person or entity served;
(6) the address served;
(7) the date of service or attempted service;
(8) the manner of delivery of service or attempted service;
(9) the name of the person who served or attempted to serve the process;
(10) if the person named in (9) is a process server certified under order of the Supreme Court, his or her identification number and the expiration date of his or her certification; and
(11) any other information required by rule or law.Tex. R. Civ. P. 107(b).
Neither Rule 99 nor Rule 107 requires that the defendant's address be listed in the petition or citation. Also, neither Rule 99 nor Rule 107 requires that the address in the petition or citation, if any, must match the address in the return. Myan Mgmt. Grp., L.L.C. v. Adam Sparks Fam. Revocable Tr., 292 S.W.3d 750, 754 (Tex. App.-Dallas 2009, no pet.) ("[T]he law is settled that listing a different address on the return and citation will not render service invalid."). The only address requirement for the defendant is that the return must state "the address served." Tex.R.Civ.P. 107(b)(6). This makes sense, as the defendant may be personally served wherever he is found, and the process server is not limited to the address mentioned. Silver B & Laviolette, LLC v. GH Contracting, Inc., No. 03-10-00091-CV, 2010 WL 4053791, at *3 (Tex. App.-Austin Oct. 12, 2010, no pet.) (mem. op.) (citing Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 291 (Tex. App.-Dallas 2003, no pet.)).
Rule 79 provides that "[t]he petition shall state the names of the parties and their residences, if known . . . ." Tex.R.Civ.P. 79.
Mohammad relies on Spanton v. Bellah to argue that the mismatch in addresses on the citation and return is fatal to the default judgment. 612 S.W.3d 314, 317 (Tex. 2020). In Spanton, the plaintiff filed a motion for substituted service when the traditional means of service failed. Id. at 315. Although the petition, citation, and return of substituted service stated that the defendant's address was on "Heather Hills Drive," the motion for substituted service and the trial court's order authorizing substituted service identified the defendant's address as being on "Heathers Hill Drive." Id. at 316. The Court held that the service was invalid because the return of service was executed at a different address than the address in the trial court's order. Id. at 317. The Court explained:
Nothing in the record demonstrates that the Spantons actually received substitute service or that Heather Hills Drive and Heathers Hill Drive are the same street. While one might reasonably presume or believe that to be true, we cannot entertain such presumptions or beliefs to uphold a default judgment based on substitute service. The face of the record in this case establishes that the substitute service did not strictly comply with the order permitting such service. As a result, the default judgment cannot stand.Id. at 217.
Spanton is distinguishable from this case. The issue in Spanton was whether the return of service strictly complied with the trial court's order of substitute service. Id. at 216-17. The issue here is whether the return of service strictly complied with the procedural rules of service that support a default judgment. As we explained above, there is no requirement that the petition or citation list the defendant's address or, if it does, that it match the address on the return. See Tex. R. Civ. P. 99, 107; see also Myan Mgmt. Grp., 292 S.W.3d at 754. We conclude that the discrepancy between the addresses listed for Mohammad in the petition, citation, and return do not render service defective.
We now turn to the date error. Under Rule 107, the return of service must be signed by the process server and, if that person is not a sheriff, constable, or clerk of the court, the return must be either verified or signed under penalty of perjury. Tex.R.Civ.P. 107(g). Goodman v. Wachovia Bank, Nat. Ass'n, 260 S.W.3d 699, 702 (Tex. App.-Dallas 2008, no pet.). For the purposes of Rule 107, "verified" means "an acknowledgment of an instrument before a notary public." Goodman v. Wachovia Bank, Nat. Ass'n, 260 S.W.3d 699, 703 (Tex. App.-Dallas 2008, no pet.) (quoting McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.-Houston [1st Dist.] 1992, writ denied)).
Mohammad complains that the incorrect date on the notary's jurat renders the return defective. We disagree. Rule 107 "requires that the return-not the signature-'shall be verified.'" Id. at 702; Tex.R.Civ.P. 107(e). Rule 107 lists four date requirements: (1) the date and time process was received for service, (2) the date of service or attempted service, (3) the expiration date of the process server's certification, and (4) if the process server signs the return under penalty of perjury, his or her identifying information, including date of birth. See Tex. R. Civ. P. 107(b)(4), (b)(7), (b)(10), (d). There are no other date provisions, nor any provision stating that the verification must comply with the formal requirements of an affidavit. See id. And even if it did, a notary's jurat in a formal affidavit is not required to be dated. See Tex. Gov't Code Ann. § 312.011 (listing affidavit requirements); Petroleum Analyzer Co. LP v. Franek Olstowski, No. 01-09-00076-CV, 2010 WL 2789016, at *19 (Tex. App.-Houston [1st Dist.] July 15, 2010, no pet.) (mem. op.) ("Error in the date of the notarization is a defect of form, not substance."). We conclude that the date error in the notary's jurat does not render the return defective.
CONCLUSION
We overrule Mohammad's sole issue and affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees ARMANDO SANCHEZ-RANGEL and VALENTINA RIVERA recover their costs of this appeal from appellant ABUBAKER KHAN MOHAMMAD.
Judgment entered.