Guadalupe P. Perez v. Old West Capital Co., Assignee of Hudson & Keyse, L.L.C.
411 S.W.3d 66
| Tex. App. | 2013Background
- Plaintiff Guadalupe P. Perez filed a bill of review challenging a default judgment, alleging she was not properly served under Tex. R. Civ. P. 106 because service was affixed to a side door, not the literal front door.
- The trial court had authorized substituted service by attaching citation and petition to the “front door or entry way” at 1501 N. Sylvania Ave.
- Process server Rudolf Jackson observed the front door was barricaded/locked and the side door had a clear sidewalk and was evidently the primary entry; he attached the documents to the side screen/door and returned that service was made to the “front entrance.”
- Perez testified she resided in Weatherford in 2008 but used the Sylvania address for mail, had the address on her driver’s license, claimed homestead/tax exemptions there, paid utilities, had a key, and visited regularly; family lived at the Sylvania house.
- The trial court denied the bill of review, finding substituted service complied with the Rule 106 order and was reasonably calculated to provide notice; Perez appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substituted service complied with the Rule 106 order | Perez: server did not strictly comply because documents were taped to the side door rather than the front door called for by the order | Old West/Server: the Rule 106 order permitted attachment to the “front door or entry way,” and the side door was objectively the primary entry, so service complied | Court held service complied — side door was the functional "front entrance," so substituted service satisfied the order and gave presumptively adequate notice |
| Whether the return of service’s description (saying "front entrance") invalidates service given it was actually the side door | Perez: return was facially incorrect and therefore deficient | Old West: minor discrepancies on a return do not invalidate substituted service when the server’s testimony and facts show compliance | Court held the discrepancy was not fatal; trial court could credit server’s testimony and find compliance |
| Whether evidence was legally and factually sufficient to support findings and conclusions | Perez: evidence only permits inference of noncompliance and lack of notice | Old West: evidence (mail, license, utilities, use of side entry) supported finding Perez could be found at Sylvania address and received constructive notice | Court held the factual and legal sufficiency standards were met; findings and conclusions upheld |
| Whether lack of actual notice required reversal of bill of review denial | Perez: she never received actual notice and thus was entitled to relief | Old West: Rule 106 does not require proof of actual notice; substituted methods reasonably calculated to give notice suffice | Court held actual notice is not required under Rule 106 and the substituted service was effective |
Key Cases Cited
- Wembley Inv. Co. v. Herrera, 11 S.W.3d 924 (Tex. 1999) (bill of review basics)
- Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d 795 (Tex. 2006) (absence of proper service alters bill-of-review elements)
- State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298 (Tex. 1993) (Rule 106 substituted service need not furnish proof of actual notice)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (knowledge of suit does not impose duty to act absent proper service)
- In re M.C.B., 400 S.W.3d 630 (Tex. App.—Dallas 2013) (trial court may credit server testimony and find Rule 106 compliance despite return wording)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal and factual sufficiency review)