in the Interest of E.A. and D.A., Children

of E.A. and In Interest

D.A., Children.

No. 08-0157.

Supreme Court Texas.

June

1978), citation is nec we held “a new essary appeared for a who has not petition, plaintiff, by when the amended judgment a more than seeks onerous In original pleading.” 1990, however, Rule of Civil Proce provide dure 21a amended to service, variety including methods registered plead for all certified or papers except court ings and whether, light must petition. We decide service of new citation is based on a judgment for default or wheth er under Rule 21a will suffice. We Rule 21a conclude that service under is we reverse the Accordingly, sufficient. appeals’ and remand to judgment court proceedings the trial court for further con opinion. this sistent with I

Background and Avitia were Emilio married children, D.A. and had two E.A. and divorced, the final Avitias later decree joint them appointed managing conserva- given tors of the children. Norma was right designate exclusive the children’s residence, granted primary and Emilio later, Five Emilio visitation. months filed parent-child re- modify Bethany Lucking, Legal Aid of Sehendel seeking right lationship, the exclusive Texas, Falls, TX, for North West Wichita designate primary children’s residence. Petitioner. seeking If a a modification suit such Bjordammen, Stephen Milissa Christina order, year within prior filed one of the Barrick, TX, Falls, Respon- Wichita must attach an affidavit that petitioner dent. facts, contains, along with one supporting allegations. of several Fam.Code Chief Justice JEFFERSON delivered 156.102(a),(b). had Emilio’s Court, opinion joined by of the Justice such affidavit attached. Norma was HECHT, O’NEILL, Justice Justice not file served with citation but did MEDINA, GREEN, Justice and Justice appear. answer or otherwise JOHNSON. later, Hartford, months Emi- Approximately three In Weaver v. Accident and (Tex. alleging Indemnity an amended lio filed pattern history Norma had a of drug properly served with the requesting appointed use and that he be it, did not have constructive notice of managing sole conservator given a we reverse the of appeals’ court credit on his support arrearage child and remand to the trial court for further period during which he had intermittent proceedings.

physical custody of the children. Emilio a supporting

attached affidavit an making II appropriate allegation Family under Code Weaver and Rule 21a 156.102(b). Although section the amended petition did not contain a certificate of If a defendant properly is served with service, Emilio he alleges sent Norma the process, in order to have a default judg amended via certified mail. The aside, ment set prove she must the three letter, petition, amended transmittal re- elements set out in Craddock v. Sunshine receipt, turn and court order modifying Lines, Inc., 388, Bus 134 Tex. 133 S.W.2d parent-child relationship all included 124, (1939). But if the defendant nev the same street in address Wichita Falls er papers, received suit general she is but reflected three zip different codes. ly entitled to a new trial without any fur post The office attempted delivery of the showing. ther Fidelity and Guar. Ins. Co. amended three times before it was Co., v. Drewery 571, Constr. 186 S.W.3d returned to Emilio’s counsel as unclaimed. (Tex.2006) curiam) (per (citing Peralta The trial court rendered a default judg- Ctr., Inc., v. Heights 80, 84, Med. 485 U.S. granting ment Emilio the right exclusive 896, (1988)). 108 S.Ct. 99 L.Ed.2d 75 Here designate to primary children’s resi- there dispute is no that Norma prop dence. The court ordered no visitation for erly served with Emilio’s petition.1 required Norma and her pay sup- child The parties dispute only whether Norma port to Emilio. Norma moved to set aside was properly served with the amended trial, the default judgment and for new petition. arguing that default judgment improp- parties The agree that a nonanswering er because Norma was not served with the party is entitled to some form of notice of amended The trial court denied a more onerous petition, they amended but both motions. The court of appeals af- dispute the manner in which such a firmed, 38, holding S.W.3d that Texas tion must be argues served. Norma Rule of Civil Procedure 21a eliminated the service of new citation required, while requirement anof additional citation for Emilio contends that under service amended seeking a Rule of Civil Procedure Rule 21a is suffi- judgment on a nonanswering cient. In Weaver v. Accident party. The appeals court of further held Hartford 367, Indemnity 570 S.W.2d that Norma had constructive notice of the (Tex.1978), we held that “new citation is and that this satisfied necessary for a process. ap- due Because we who has not conclude that a peared new citation plaintiff, is not when the pe- service of a tition, more onerous amended on a non- judgment seeks more onerous answering party, but that Norma was not than for in original pleading.” appeals, argued 1. In the days court of before final is rendered. under Texas Rule of appeals rejected Civil Procedure die argument, court of receipt days certified must be on file for ten and Norma does not the Rule raise 107 issue hearing, opposed before the final ten this Court. However, service of new amended Rule 21a to dressed whether Weaver’s delivery, requirement applies light that several methods provide are Rule both concluded that it does registered certified or including Receivables, required by notice not. See Sw. Ltd. v. appropriate “[e]very Constr. (Tex. Bank, rules, every pleading, plea, Regions mo- these denied); tion, request required App.-Texarkana pet. In re or other form of R.D.C., (Tex.App.- other than the 855-56 be served under Rule writ); filing of a Eastland see upon citation to be served also William Litigation DoRSaneo, III, except action and as otherwise V. 7 cause of Guide (2008) § (noting rules.” TEX. that cases that expressly provided in these 111.02[11] appeals P. 21a. The court of held still follow Weaver—and Weaver itself— R. CIV. requirement “arguably conflict with that Rule 21a “eliminated Civil Procedure Judge 21a, 1990”); in of an citation” set out Weaver. Rule as amended in 1 additional Family Montgomery Al., 287 S.W.3d at 41. John D. Et Texas Practice & PROCEDURE 4.02[1] Law: never this issue di- We have addressed (2009) (providing plaintiff that “a who recently cited rectly. Although we Weaver may amends his or her serve the petition Guaranty v. Fidelity in and Insurance Co. by complying filing defendant with the and Co., Drewery 186 Construction S.W.3d serving requirements of Texas Rules of (Tex.2006) curiam), 571, (per 574 we did regard 21 21a Civil Procedure without type of not reach the issue of whether to whether the amendment seeks a more required changed light in onerous a or adds new cause of that Rule 21a because we concluded action”) R.D.C., (citing In re 912 at S.W.2d Fidelity in was not more 855-57). original petition. onerous than the Id. majority appeals of courts of that Rule 21a all applies pleadings have cited Weaver since the 1990 amend to be served Rule 21 under other 21a. original petition except ment to Rule 21a do not address Rule than the See, e.g., County, provided Nothing Bennett v. Wood 200 in the rules. 239, 2006, (Tex.App.-Tyler requires S.W.3d 241 no rules a to serve a plaintiff nonan- Tanner, pet.); No. swering Scott 01-02-00668- defendant with new citation for a CV, 22862806, at (Tex.App.- 2003 WL *3 more onerous amended aWhile 4, 2003, Dec. pet.) nonanswering Houston no defendant must be served [1st Dist.] USA, Inc., (mem.op.); Seeley v. 100 a KCI with more onerous amended stand, (Tex.App.-San

S.W.3d Antonio order for a default judgment to R pet.); Supply agree appeals no Atwood v. B & & with the court of that Rule Equip. (Tex.App. requirement. 21a service satisfies that pet.); no v. This -Corpus interpretation Christi Cohen “eliminates the uncer Cohen, 05-93-00192-CV, tainty No. 1994 WL and confusion that is found in the Apr.6, at *2 (Tex.App.-Dallas regarding cases what constitutes a ‘more writ) (not designated publication); judgment’ or a new ac ‘cause of Botello, A14-90-00481-CV, R.D.C., Lim v. No. tion.’” In re at (Tex.App.-Houston (noting 1991 WL at *1 that Rule 21a now governs over denied) 21, 1991, “ambiguous [14th Mar. writ rules that have evolved as to Dist.] (not served”) (cit designated publication). Aside when new citation must be Roy case, from appeals only ing the court of this W. MoDonald, Prac Civil (1992)). §§ two appeals squarely courts of have ad 10:15-16 To the extent tice with prima conflicts the rule not made a facie Weaver case of the fact of prevails. service on this basis. Nonetheless, the court appeals

Ill concluded that Norma received construc tive notice the amended Service process. satisfied due determine, however, must then We S.W.3d at 42. The court appeals relied whether Emilio peti served post on the repeated attempts office’s compliance with Rule 21a. Under deliver the one of the children’s rule, court papers served certified testimony that Norma knew about the laws “by mail must be sent or regis certified uit,2 attorney’s and Emilio’s statement mail, to party’s tered known last ad that she sent Norma a copy of the amend dress.” Tex.R. Civ. P. 21a. Service ed via regular mail and it was not “complete upon deposit mail is pa of the Id. returned. The court of appeals also per, enclosed in postpaid, properly ad despite noted that the fact that the later wrapper, post dressed a or office official order, modification like the peti amended depository....” Id. tion, unclaimed, was returned Norma time ly moved to set the order aside. Id. The Even assuming that the amended court of held appeals that even when a addressed, was properly point a that notice, party not does receive actual if the disputes, any presumption of ser- serving party complied with Rule arising vice from mailing Emilio’s of the “ may constructive notice be established ‘if petition negated by amended the presents the serving party evidence that petition’s amended return as unclaimed. the intended recipient engaged in instanc at 41. presumption 287 S.W.3d The of of acceptance es selective or refusal of service under Rule 21a “is not ‘evidence’ certified mail relating to the or case that and it vanishes when opposing evidence is the recipient intended refused all deliver introduced that [a was not re- document] ” of ies certified mail.’ (quoting Id. Ether ceived.” Huggins, v. Cliff Ass’n, v. edge Valley Inc., Airpark Hidden (Tex.1987). (Tex.App.-Fort 381-82 denied)). 2005, pet. Worth provides Rule 21a further that or party attorney the of record certi shall have never We decided whether con- fy compliance with the rule “in writing a structive notice of more onerous amend- signature over and on the filed instru process. ed satisfies due Assum- ment.” P. 21a. A does, certificate of ing, deciding, without that it the Civ. prima service is facie evidence of the fact in this record case insufficient to estab- service, of but nothing in the rule “pre presented lish constructive notice. Emilio any party offering clude[s] from proof that no evidence that Norma avoided or refused received, the notice instrument was delivery not of the nor amended that or, if service it was not she received the certified mail notices. ” days.... received within three Id. Be mere the mail The fact that certified cause the amended does not in returned unclaimed is not sufficient service, a where, here, clude certificate of Emilio has show avoidance or refusal mean, letters, like, hearing At got go on Emilio’s motion to modi- letters —she to her fy, E.A. was asked whether Norma knew be house. She should informed.” responded: about the He ”[s]he lawsuit. —I BRISTER, joined Justice three dif- Justice documents reflect the relevant WILLETT, and Justice address, WAINWRIGHT zip for Norma’s ferent codes concurring. pleading lacks certificate pertinent testimony regarding child’s service. judgment setting I in the concur Court’s of the lawsuit was knowledge Norma’s against Norma judgment aside the default knowl- not address Norma’s vague and did I to the abro- Avitia. But dissent Court’s Moreover, petition. amended rules edge gation procedural of the one of the oldest learned of the modification Texas. that Norma mean she received notice of order not does that a years, the rule has been For 150 petition. attorney Emilio’s the amended be on default cannot based copy she sent Norma asserted that seeking amended via mail regular served relief unless amendment was However, was not returned. stand- copy with citation. As we said Weaver alone, to establish this is insufficient ing Co., “new Indemnity Accident & Hartford notice that Norma had constructive who has necessary citation is by amend- plaintiff, not when the appeared judg-

ed a more onerous petition, seeks plead- oi'iginal ment than IV Court, ing.” example, applied This shortly that rule three times before Conclusion the rule By we called Civil War.2 stand, to In order for a default “well established”: nonanswering party must be served with a state rule is well established in our The petition under a more onerous amended cited, but a defendant who has been that of no Rule 21a. Service new citation is answer[ed], must notified of has not be evidence, longer There is required. up which a new every amendment sets however, served with the that action, requires a more oner- cause or 21a that under Rule or him; but, if he has judgment against ous had of the amended she constructive notice action, the the notice to pleaded only to Accordingly, hearing petition. without the court which he is entitled is order of the argument, oral reverse court leave file the amendment.3 granting to to appeals’ judgment remand the trial rule. A good There are reasons this proceedings court for further consistent a court citation is an official notice from Tex.R.App. this P. 59.1. opinion. with officer,4 by accompanied petition,5 is the an recipients they that must warns concurring Justice BRISTER filed a “judgment swer a stated deadline de opinion, may Justice be the which WAINRIGHT default rendered relief person the A petition.”6 manded in joined. and Justice WILLETT 1978). (Tex. 99(a). 4. Civ. P. 1. 570 S.W.2d 370 Tex.R. See, Snow, e.g.,

2. Walt v. 25 Tex. De 99(d). P. 5. Civ. Tex.R. Walker, (1860); v. 22 Tex. Morrison Owen, (1858); Hutchinson added). 99(b) (emphasis Civ. P. (1857). Rogers, 3. Rabb v. 67 Tex. 3 S.W. (1887). citation answer,

served with can be under no mis whether a will to defendant fail conceptions they always about the effect of but will ignoring know once default that occurs. It be easy would in such cases to advantage take aof defaulting defendant contrast, a By petition received in by simply an mailing mail is not an official notice from a court that raises the stakes. adversary’s an It complaints. but list of is The amendments Rule 21a 1990 did recipient, not even directed to the but like abrogate not this traditional rule. Since pleadings all other is directed to the court. adoption in its has always 21a deadlines, necessary It states no no actions that it not apply stated does to “citation to default, to avoid not even a hint that de- upon be seiwed filing cause of might laymen fault occur. Reasonable re- action.”8 The excep- Court misstates ceiving might such a document in the mail by limiting petition;9 tion it to the original it, simply ignore and under Texas law have is nowhere in the rule. None of the long precisely been entitled to do that.7 regarding rules citation are limited to the But about who one what those receive nor do they define which with citation second one petitions need citation. So it while is true the mail? The come an first has with “nothing requires in the rules” cita- notice; court the second not. official amendments,10 tion for more onerous noth- says required; first answer ing dispenses it rules with either. says second does not. The first court regarding petitions The law which require may grant the relief demanded in cases, has always been in our if ignored; it is the second not. does today changed. which until had never Perhaps litigants are sophis- modern The Court seems think the 1990 past ticated than those of years, amendment to Rule 21a a new cre- many surprised but will still be learn “to provide ation variety methods they the second is the one should service, including registered certified or worry about. mail, for pleadings all papers court In to unsophisticated litigants, petition.”11 addition the except But liti- be gants we must also concerned about their able have been to serve amended opposite very sophisticated litigants pleadings by who mail since our first rules of — advantage. procedure adopted would bend the rules to their were in 1940.12 The plaintiff usually A know in cannot advance merely 1990 amendment consolidated mail, Employment Ctr. pleadings papers 7. Ross Nat’l the the for all and court ex- for Disabled, added). (Tex.2006) cept original petition.”) (emphasis the 798 (stating parties properly "not served have 10. 287 S.W.3d 4. act”); duty to Harrell v. Mex. Cattle 73 (1889) ("A 11 S.W. 865 defen- 11. 287 S.W.3d at 2. dant ... is not bound to take action he until (1940, repealed 12. P. See Tex.R. Civ. duly process.”). been served with 1990)(“WheneVer files, any party or asks any plea, to pleading, leave file or motion of (1947, 1990). 21a 8. Civ P. any by by character which is not law or these upon served the rules to be adverse however, ("In 1990, 9. See 287 S.W.3d at 2 party, he shall at the same time either deliver Texas Rule of Civil Procedure 21a was attorney(s) or mail to the adverse or provide variety amended to of methods copy pleading, plea, record of such or mo- service, tion.”). including registered certified or (rule mailing 21a for to mean that 21a tions to service rules separate three ap- interventions, parties rule notices, sufficient as rule 60 for was nec- three but service with citation Consolidating peared, all pleadings).13 72 for those not.18 If Rule essary rule in that did change 21a could the into rule not origi- all after the rule 21a 21a means amendments by terms because its own Weaver by can be it required. nal served when citation is apply not does why we interve- to see did not extend hard Indeed, changed if the 1990 amendment right same the rule. nors the under same rule, it is and well-established an old such civil interpret pro- must the rules of the time. Noth We that no one noticed at odd liberally,19 hesitate to Advisory records cedure but we should Committee’s ing intended, and in a unfore- interpret way completely them suggest change such change by to the those who them. Nor only appended comment seen drafted the allow by litiga- it fax make interpret “[t]o was that added service we them to should unfair,20 by delivery current means unjust for service or as will no doubt tion ad technologies.”14 Law review articles petitions if more occur onerous amended no did not dressing the amendments be in the mail on simply dropped can time,15 change at and most tice the defaulting Accordingly, defendants. I it noticed practitioners have not guides would not discard a rule that has worked since.16 well so long casually. so so has this Court. We stated

Nor recently law as 2006.17 rule as

Weaver in Baker v.

And Monsanto Co. the 1990 of interven-

interpreted addition both, thereby damages, or causes of action 13. Tex.R. Civ. P. 21a. seeking judgment, a more the defen- onerous a, change. P. 21 cml. dant must be served with the amended 14. Tex.R. Civ a de- service of in order for Jr., See, Figari, judgment to e.g., A. Erin fault be based on the amended 15. Ernest E. Procedure, Colleluori, Dwyer, petition.”); Michol & Donald Civil O’Connor, O’Connor's Tex- * (1991) (stating only that the Sw. L.J. Commentaries Civil as Rules Trials (2004) ("When, keep pace § with advanc- at 444 after service of rule "was amended to 3.2 ing technology”). original petition, plaintiff amends adding for a more ask See, increasing damages, plaintiff e.g., claims or Tex. Civ McDonald. & Carlson (2d. 1998) ("When there with a new citation 10:16 ed. must serve defendant Prac defendant, taking ... appearance and the amended before has been (but only necessary judgment.”); V. Dorsa- new citation is when default 7 William fa] cf. III, when) § Litigation plaintiff 111 at ... seeks a more onerous 111-28 neo Guide (2008) (noting continuing original than for in the recent cases "arguably pleading.”); require 3d service of conflict On Insurance Couch a, ("Where (1995) to a 231:4 an amendment with Civil Procedure Rule 1990”). complaint cause of states new and distinct presented action from that however, Drewery requires a Guar. pleading, general 17. See Fid. & Ins. Co. Constr. rule Inc., (Tex.2006). process new service of after the amendment appeared who has not theretofore (Tex.2003). Pendery, proceedings.”); F. 18. 111 S.W.3d Julia Casada, McCaskill, Shawn M. & Hilaree A. Civ. P. 1. Dealing Judgments, with 35 St. 19. Mary's Default ("If (2003) plaintiff decides to L.J. P. 1. petition pleading additional file an amended Tex.R. Civ

Case Details

Case Name: in the Interest of E.A. and D.A., Children

Court Name: Texas Supreme Court

Date Published: Jun 5, 2009

Citation: 287 S.W.3d 1

Docket Number: 08-0157

Court Abbreviation: Tex.