Garrett G.B. Robb v. Horizon Communities Improvement Association, Inc.
417 S.W.3d 585
Tex. App.2013Background
- HCIA sued Garrett and Kathleen Robb (and others) for unpaid subdivision assessments and sought foreclosure, statutory damages, and fees; HCIA alleged $3,135.91 due and recorded a lien.
- HCIA moved for service by publication after asserting it lost contact with many defendants; affidavit listed only a P.O. Box (P.O. Box 93, Pocono Pines, PA) as the Robbs’ last known address.
- Process server attempted personal service and returned citation unserved because the address was a P.O. Box; HCIA did not mail citation by certified/registered mail to the P.O. Box nor otherwise demonstrate additional efforts to locate a physical address.
- The trial court granted service by publication; default judgment entered awarding foreclosure and money judgment and conditional appellate fees.
- Mr. Robb (pro se) filed post-judgment responses and timely notice of appeal; he attached documents to his brief that were not part of the appellate record.
- The Court of Appeals examined service adequacy and compliance with appellate briefing rules, vacated the default judgment, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (HCIA) | Defendant's Argument (Robb) | Held |
|---|---|---|---|
| Validity of service by publication | Publication was authorized because plaintiff could not locate defendants and supported motion with affidavit | Service by publication was improper because HCIA had P.O. Box and had used certified mail for demand letters; HCIA failed to exercise reasonable diligence and intentionally avoided certified service | Vacated default judgment: service by publication invalid because HCIA did not show reasonable diligence (no adequate efforts to locate or attempt certified/registered mail) |
| Sufficiency of Robb’s appellate brief | — (HCIA contended Robb’s briefing was inadequate and issues waived) | Pro se brief substantial compliance with rules; issues stated and record citations were locatable | Court held brief substantially complied and reviewed the service issue on merits |
| Use of documents attached to Robb’s brief but not in record | HCIA objected that exhibits outside the record cannot be considered | Robb included extra exhibits to support service/notice arguments | Court refused to consider documents not in the appellate record and limited review to clerk’s/record materials |
Key Cases Cited
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (default judgment improper without strict compliance with service rules)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (personal jurisdiction depends on proper issuance and service of citation)
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (service by publication is a last resort; diligence quality not quantity)
- Warriner v. Warriner, 394 S.W.3d 240 (Tex.App.—El Paso 2012) (appellate court may not consider documents outside the appellate record)
- Sgitcovich v. Sgitcovich, 241 S.W.2d 142 (Tex. 1951) (substituted service not allowed if personal service can be effected by reasonable diligence)