Opinion
No. 04-15-00036-CV
02-24-2016
David Wayne THOMPSON, Appellant v. Travis BAILEY and Lisa Bailey, Appellees
MEMORANDUM OPINION
From the 38th Judicial District Court, Uvalde County, Texas
Trial Court No. 2013-07-29422-CV
The Honorable Camile G. Dubose, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice REVERSED AND REMANDED
David Wayne Thompson appeals the trial court's order vacating an order granting a new trial and reinstating a prior no-answer default judgment. We reverse the judgment of the trial court, and remand the case to the trial court for further proceedings.
BACKGROUND
On July 7, 2013, Travis and Lisa Bailey filed suit against Thompson, alleging breach of contract and seeking damages totaling $17,158.87, plus interest, costs, and attorney's fees. Thereafter, the Baileys filed a motion for substituted service. The trial court granted the motion, and the citation and petition were served on Thompson's wife by the Baileys' chosen process server, Hector Olivarez. Thompson did not file a written answer, and on April 28, 2014, the Baileys obtained a default judgment.
On May 15, 2014, Thompson timely filed a motion for new trial. Thompson argued that service was defective because Olivarez was not authorized to serve process under Rule 103 of the Texas Rules of Civil Procedure, and because service was not effected in strict compliance with Rule 103, the trial court lacked personal jurisdiction over him. Thompson alternatively argued that he mistakenly believed that he was not required to respond to the lawsuit given that he was not personally served, and that his mistake should be excused for cause.
Rule 103 identifies the persons who may serve legal process as follows: "Process—including citation and other notices, writs, orders, and other papers issued by the court—may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court." TEX. R. CIV. P. 103. --------
On June 24, 2014, a hearing was held on the motion for new trial. At the hearing, it was determined that Olivarez was not authorized to serve process under order of the Supreme Court. The trial court asked the Baileys' counsel to research the issue of whether Olivarez was authorized to serve under written order. Counsel submitted a letter to the court, but the letter did not contain any authority demonstrating that Olivarez was authorized to serve process under Rule 103.
On July 2, 2014, the trial court granted Thompson's motion for new trial, finding that Thompson's failure to appear was excused for cause; the trial court struck through the language in the prepared order regarding defective service. The trial court ordered Thompson to pay the Baileys $4,806.90 in costs associated with the motion for new trial within 30 days from the date of the order.
On August 28, 2014, the Baileys filed a "Motion to Vacate Order Granting New Trial and Motion to Reinstate Prior Judgment." The Baileys argued that the order granting the new trial was conditioned upon the payment of costs within 30 days of July 2, 2014, and that since Thompson had not yet paid the costs as ordered, the default judgment should be reinstated.
A hearing was held on the motion on September 10, 2014. The trial court found that it did not make the order granting Thompson's motion for new trial conditioned upon the payment of costs. Further, in response to Thompson's argument that the amount of fees was not supported by evidence, the trial court ordered the Baileys' counsel to provide Thompson with billing statements.
On December 8, 2014, a hearing was held to determine the appropriate amount of attorney's fees. The trial court awarded attorney's fees in the amount of $2,677.50. The trial court then signed an order conditionally granting the motion for new trial upon Thompson's payment of attorney's fees in the amount of $2,677.50 on or before January 7, 2015.
Thompson failed to pay the attorney's fees and, on February 4, 2015, the trial court signed an order reinstating the April 28, 2014 default judgment and vacating the order granting new trial.
DISCUSSION
On appeal, Thompson argues that because he was not served in strict compliance with Rule 103, service was defective, and the trial court never acquired personal jurisdiction over him. See TEX. R. CIV. P. 103. Thus, the trial court erred in granting the default judgment in the first instance, and further erred in conditionally granting the motion for new trial and later reinstating the default judgment, as a trial court cannot reinstate a void judgment.
Personal jurisdiction is dependent upon citation issued and served in a manner provided for by law. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). If service is invalid, it is of no effect and cannot establish the trial court's jurisdiction over a party. In re E.R., 385 S.W.3d at 563. It is the responsibility of the party requesting service to ensure both that proper service is accomplished and that the record reflects proper service. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994). A default judgment is improper against a defendant who has not been served in strict compliance with the rules governing service of process even if the defendant has actual knowledge of the lawsuit. Id. at 152; Wilson, 800 S.W.2d at 836. Whether service strictly complied with the rules is a question of law that we review de novo. Furst v. Smith, 176 S.W.3d 864, 868-70 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Cancino v. Cancino, No. 03-14-00115-CV, 2016 WL 234514, at *3 (Tex. App.—Austin Jan. 13, 2016, no. pet. h.) (mem. op.).
Rule 103 identifies the persons who may serve legal process as follows:
Process—including citation and other notices, writs, orders, and other papers issued by the court—may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court.TEX. R. CIV. P. 103. Rule 124 further provides that, "[i]n no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules." TEX. R. CIV. P. 124. Again, even if the defendant admits that he received actual service, such actual service does not substitute for the requirements of service of process. Wilson, 800 S.W.2d at 836; Browserweb Media Agency v. Maxus Energy Corp., No. 01-14-01028-CV, 2016 WL 66540, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2016, no. pet. h.).
The Baileys concede that Olivarez was not certified to serve under order of the Supreme Court at the time he served Thompson. See TEX. R. CIV. P. 103. Likewise, the Baileys did not present the trial court with a written order providing that Olivarez was authorized to serve. See id. The Baileys did attach as an exhibit to their appellate brief a "Standing Order Authorizing Hector P. Olivares [sic] to Serve Process" signed by the presiding judge of the 38th Judicial District Court of Uvalde County, Texas, on July 17, 2014. Because this evidence, however, was not included in the appellate record, we may not consider it in this appeal. See Gonzalez v. Villarreal, 251 S.W.3d 763, 777 n.17 (Tex. App.—Corpus Christi 2008, pet. dism'd) (holding that attachment of documents as exhibits or appendices to appellate briefs is not formal inclusion in the appellate record); see also Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ("We cannot consider documents attached to an appellate brief that do not appear in the record.").
Thus, we are left to decide whether Olivarez, who is undisputedly a retired sheriff, qualifies as a "sheriff" under the language of Rule 103. Thompson argues that Rule 103 must be strictly construed, and as such, the rule limits process servers to sheriffs and constables and excludes licensed peace officers in general. We agree. The guidelines involving the construction of statutes are helpful in this instance. When a statute is unambiguous, we apply its plain meaning. Fleming Foods of Tex., Inc., v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). Just as every word of a statute must be presumed to have been used for a purpose, every word excluded must also be presumed to have been excluded for a purpose. Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). In drafting Rule 103, the Supreme Court Rules Committee specified the persons who may serve process. If the Supreme Court had intended to include retired sheriffs and retired constables as persons authorized to serve process, it would have expressly done so. We interpret "sheriff" to mean a person currently employed as a sheriff, and as such, we conclude that Olivarez was not a person authorized to serve under Rule 103.
Given that Olivarez was not a person authorized to serve under Rule 103, we conclude that the attempted service of process employed in this case did not strictly comply with the rules governing service of process. Failure to affirmatively show strict compliance with the rules of civil procedure renders the attempted service of process invalid and of no effect. Wilson, 800 S.W.2d at 836; Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex. App.— Amarillo 1992, no writ). Because the rules relating to service of process are mandatory, a default judgment based upon citation and service not complying therewith is void. HB & WM, Inc. v. Smith, 802 S.W.2d 279, 281 (Tex. App.—San Antonio 1990, no writ); Webb, 831 S.W.2d at 64.
Because the record before us does not demonstrate that Thompson was served in strict compliance with Rule 103, rendition of the April 28, 2014 default judgment against him was improper in the first instance, and the trial court erred in reinstating the default judgment. See Orgoo, Inc. v. Rackspace US, Inc., 341 S.W.3d 34, 41 (Tex. App.—San Antonio 2011, no pet.). Accordingly, the judgment is reversed and the cause is remanded to the trial court for further proceedings. By this appeal, Thompson has appeared in the lawsuit. See TEX. R. CIV. P. 123 ("Where the judgment is reversed on appeal or writ of error for the want of service, or because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed."); HB & WM, Inc., 802 S.W.2d at 282; Webb, 831 S.W.2d at 65.
Rebeca C. Martinez, Justice