in the Interest of M.C.B.
2013 Tex. App. LEXIS 4702
| Tex. App. | 2013Background
- Huffman filed a petition to modify the parent-child relationship in 2009 and sought substitute service on Burtelow via citation attached to his front door.
- Process server attempted service five times; finally served Burtelow at his address with citation and petition on the door, but returned the service as being delivered by 106 to door.
- Burtelow did not answer; July 21, 2009, hearing held with Burtelow absent; Clabough testified he taped the citation to the door and later found it removed, then re-attached another copy.
- Trial court entered a default judgment and subsequent order modifying conservatorship; Burtelow filed a bill of review arguing lack of notice and improper service.
- Huffman moved for traditional summary judgment arguing Burtelow had not demonstrated improper service because substitute service complied with the order authorizing service under Rule 106.
- The trial court granted Huffman’s summary judgment; Burtelow appealed claiming lack of strict compliance and improper service, necessitating reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did service by substitute method comply with Rule 106? | Burtelow: return failed strict compliance since order required door attachment and return said 106 to door. | Huffman: the record supports substitute service; clerk and witness testimony show door-tape complied with order; return could be amended by evidence. | Yes; service complied and summary judgment affirmed. |
Key Cases Cited
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (strict compliance required for service to be valid)
- Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 1985) (proof of service must appear on the record)
- Higginbotham v. General Life and Accident Insurance Company, 796 S.W.2d 695 (Tex. 1990) (record may reflect amended return when substitute service authorized)
- Dolly v. Aethos Communications Sys., Inc., 10 S.W.3d 384 (Tex. App.—Dallas 2000) (restricted appeals require face-of-record defect analysis)
- Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) (bill of review elements; lack of service special rules)
- Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) (due process when no notice; meritorious defense not required)
- Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979) (general bill of review requirements)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (bill of review standards and evidentiary considerations)
- Gold v. Gold, 145 S.W.3d 212 (Tex. 2004) (additional bill of review guidance)