Monte Montgomery v. Monty Hitchcock
03-14-00643-CV
| Tex. App. | Feb 13, 2015Background
- Montgomery executed a $50,000 promissory note to Hitchcock in 2010, made some payments through December 2010, and defaulted; Hitchcock gave notice of default in January 2014 and sued Feb. 17, 2014.
- Process server attempted personal service multiple times; Judge Lora Livingston authorized substituted service at 4415 Cisco Valley Drive, Round Rock, TX (leave with someone over 16 or post to door).
- Server posted the citation and petition to the door on May 5, 2014; return recited posting to the door at the Round Rock address.
- Montgomery did not answer; final default judgment entered July 9, 2014 for $59,357.63; Montgomery filed a motion for new trial but did not obtain a hearing and it was overruled by operation of law.
- On appeal Montgomery challenged service as defective based on (1) the citation listing Williamson County while the petition listed Travis County and (2) a one‑day discrepancy in the filing date on the citation versus the petition; he also contested damages.
Issues
| Issue | Plaintiff's Argument (Montgomery) | Defendant's Argument (Hitchcock) | Held |
|---|---|---|---|
| Validity of substituted service | County mismatch (Williamson v. Travis) and one‑day filing date error render service invalid | Address was correct and uniquely identifies defendant; county omission or mismatch is immaterial; one‑day date variance is technical and not prejudicial | Minor discrepancies did not void service; service upheld |
| Sufficiency of Montgomery's affidavit denying service | Affidavit says he was never served | Officer's return is prima facie evidence of service; uncorroborated denial insufficient to rebut return | Court relied on officer's return; affidavit inadequate to overcome it |
| Waiver by failure to secure hearing on motion for new trial | Motion for new trial preserved appellate complaints | Defendant never sought a hearing; when evidence is needed trial court must have chance to exercise discretion | Failure to obtain hearing waived claims; motion overruled by operation of law |
| Evidence supporting damages award | Amount not supported by evidence | Hitchcock filed an affidavit detailing the note, payments, interest, and calculation equaling judgment amount | Hitchcock's affidavit provided sufficient evidence; damages upheld |
Key Cases Cited
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (service of citation must comply with rules but technical defects are evaluated for prejudice)
- Williams v. Williams, 150 S.W.3d 436 (Tex. App.—Austin 2004) (record as a whole controls; strict compliance does not demand minutiae)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (officer's return is prima facie evidence and cannot be rebutted by uncorroborated affidavit)
- Fluty v. Simmons, 835 S.W.2d 664 (Tex. App.—Dallas 1992) (failure to secure a hearing on a motion for new trial waives complaint about default judgment)
- Pratt v. Moore, 746 S.W.2d 486 (Tex. App.—Dallas 1988) (substitute service need not include a perfectly accurate address in the order; omission of city not fatal)