Opinion issued December 29, 2015




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-14-00845-CV
                            ———————————
                        DAVID LANCASTER, Appellant
                                         V.
                      BARBARA LANCASTER, Appellee


                    On Appeal from the 247th District Court
                             Harris County, Texas
                       Trial Court Case No. 2013-05066


                          MEMORANDUM OPINION

      Appellant, David Lancaster, challenges the trial court’s order denying his

petition for a bill of review to set aside a default protective order, which prohibits

him from threatening or committing family violence against appellee, Barbara
Lancaster.1 In ten issues, David contends that the trial court erred in denying his

petition.

      We reverse and remand.

                                      Background

      On August 21, 2009, Barbara submitted to the Harris County District

Attorney’s office an application requesting a protective order against David, to

whom she had been married for twenty-four years and with whom she had two

children. On September 9, 2009, after a hearing, the trial court found that David,

although “duly and properly served [on September 4, 2009] with [Barbara’s]

application and notice of the hearing,” had failed to appear. And it rendered a default




1
      We must review issues affecting our appellate jurisdiction, even if sua sponte. M.O.
      Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004); Ross v. Linebarger, Goggan,
      Blair & Sampson, L.L.P., 333 S.W.3d 736, 741 (Tex. App.—Houston [1st Dist.]
      2010, no pet.). Here, the August 9, 2009 default protective order at issue has
      expired. Generally, expired orders are considered moot on appellate review. James
      v. Hubbard, 21 S.W.3d 558, 560 (Tex. App.—San Antonio 2000, no pet.).
      Appellate courts lack jurisdiction to decide moot controversies. See Nat’l
      Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). However, several
      intermediate courts of appeals have reviewed challenges to expired protective orders
      under the collateral consequences exception to the mootness doctrine on the ground
      that the “effects of a protective order carry significant collateral legal repercussions
      and a social stigma even though the protective order has expired.” State for Prot. of
      Cockerham v. Cockerham, 218 S.W.3d 298, 303 (Tex. App.—Texarkana 2007, no
      pet.) (Texas Family Code requires commission of family violence be considered in
      determining child custody); see Amir-Sharif v. Hawkins, 246 S.W.3d 267, 270 (Tex.
      App.—Dallas 2007, pet. dism’d w.o.j.); Ex parte Flores, 130 S.W.3d 100, 105 (Tex.
      App.—El Paso 2003, pet. ref’d); James, 21 S.W.3d at 560–61. Accordingly, we
      address the merits of David’s appeal under the collateral consequences exception to
      the mootness doctrine.
                                             2
protective order against David, prohibiting him, for a period of two years, from

threatening or committing family violence against Barbara. In October 2009, a

Harris County deputy constable served David with notice of the default protective

order.

         On January 13, 2013, David filed his petition for a bill of review, challenging

the September 9, 2009 default protective order.2 In his amended petition, he alleged

that his failure to appear at the hearing was not intentional, nor the result of conscious

indifference or negligence. Rather, he “had no transportation to court” or “money

to obtain transportation.” Further, he was “destitute and without any resources to

obtain counsel.” Thus, he was “unaware of the long-term ramifications of the

implementation of the protective order against him.” And he “spent the next full

year until August 3, 2010 homeless and traveling[,] having very few contacts by

email or phone with [Barbara] or their sons.”

         David further alleged that, during the hearing, the assigned assistant district

attorney had failed to disclose to the trial court that a prior complaint, in which

Barbara accused David of the misdemeanor offense of assault, had been dismissed



2
         On August 12, 2012, the 280th District Court of Harris County granted Barbara a
         protective order based on David’s violations of the September 9, 2009 order. See
         TEX. FAM. CODE ANN. § 85.002 (Vernon 2008). The 2012 order, which expired on
         August 30, 2014, was affirmed on appeal. Lancaster v. Lancaster, No. 01-12-
         00909-CV, 2013 WL 3243387, at *2 (Tex. App.—Houston [1st Dist.] June 25,
         2013) (mem. op.).
                                             3
and expunged. And Barbara had failed to disclose to the trial court that she had

“paid and co-signed” his bond in the assault case and had continued to reside with

him afterwards. He argued that he was prevented from asserting these “defenses” at

the September 9, 2009 hearing because Barbara had “agreed that they would simply

divorce and go their separate ways,” “assured him that it was her intent to not appear

at the hearing,” and “[led] him to believe that she would,” on certain conditions, to

which he agreed, dismiss her application for the protective order. David further

argued that he had “no ability to exercise any post-trial rights including a motion for

reconsideration or motion for new trial” because he “did not discover [Barbara’s]

fraud until more than thirty days after rendition of the judgment.”

      On July 23, 2014, after a hearing on David’s petition, the trial court found that

he did not “prove sufficient cause for granting a bill of review”; “present a prima-

facie meritorious defense to the underlying action”; “show that he would be entitled

to Judgment on retrial if no contrary evidence is offered”; “prove any justification

for his failure to present a defense”; “prove any fraud, accident, or wrongful act by

Barbara . . . or official mistake”; or “show that the default judgment against him was

not rendered as a result of his own fault or negligence.” And, although David had

“sufficient time after receiving notice of the default judgment to file a motion for

new trial,” he “did not exercise due diligence to pursue all legal remedies against the

default judgment” and “did not exercise such care as that which a prudent and careful


                                          4
person would ordinarily use in cases of equal importance.” Moreover, David’s

“claims that he lacked financial resources to challenge the protective order [were]

not sufficient cause for his failure to exercise due diligence.” Thus, the trial court

denied David’s petition for a bill of review and awarded Barbara attorney’s fees and

costs in the amount of $15,000.

                                Standard of Review

      A bill of review is a separate, independent suit brought by a party to a former

action who is seeking to set aside a final judgment that is no longer subject to a

motion for new trial or appealable. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,

504 (Tex. 2010); Wolfe v. Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex. App.—

Houston [1st Dist.] 2001, pet. denied); see TEX. R. CIV. P. 329b(f). Ordinarily, a

bill-of-review plaintiff must plead and prove “(1) a meritorious defense to the

underlying cause of action, (2) which the plaintiff [was] prevented from making by

the fraud, accident or wrongful act of the opposing party or official mistake, (3)

unmixed with any fault or negligence on [its] own part.” Mabon, Ltd. v. Afri–Carib

Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). Under the third element, a party

must “show that it diligently pursued all adequate legal remedies.” Id. at 813; see

also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (equitable

remedy of bill of review available only when proponent exercised due diligence).

However, “when a bill-of-review plaintiff claims a due process violation for no


                                          5
service or notice, it is relieved of proving the first two elements set out above.”

Mabon, 369 S.W.3d at 812 (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,

84, 87, 108 S. Ct. 896, 899 (1988)). And, if a bill-of-review plaintiff establishes that

he was not served, the third element, lack of negligence, is “conclusively

establish[ed].” Id.

      We review a trial court’s ruling on a petition for bill of review for an abuse of

discretion, indulging every presumption in favor of the court’s ruling. Xiaodong Li

v. DDX Grp. Inv., LLC, 404 S.W.3d 58, 62 (Tex. App.—Houston [1st Dist.] 2013,

no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary

manner, or without reference to guiding rules and principles. Id.

                                    Bill of Review

      In his eighth issue, David argues that the trial court erred in denying his

petition for a bill of review because, at the time of the trial court’s issuance of its

default protective order against him, the return of service of Barbara’s application

had not been on file with the clerk’s office for the requisite ten days. See TEX. R.

CIV. P. 107.

      A claimed defect in service of process “challenges the trial court’s personal

jurisdiction over the defendant.” See Livanos v. Livanos, 333 S.W.3d 868, 874 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). When a defendant has not answered, a

trial court acquires personal jurisdiction solely on proof of proper service. Id.;


                                           6
Marrot Commc’ns, Inc. v. Town & Country P’ship, 227 S.W.3d 372, 376 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied); see also TEX. R. CIV. P. 124 (no

judgment shall “be rendered against any defendant unless upon service, or

acceptance or waiver of process, or upon an appearance by the defendant”).

      When reviewing the propriety of a default judgment, we do not indulge any

presumptions in favor of proper issuance, service, or return of citation. Uvalde

Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); Min v.

Avila, 991 S.W.2d 495, 499–500 (Tex. App.—Houston [1st Dist.] 1999, no pet.). If

the record does not affirmatively show strict compliance with the rules of civil

procedure, the service is invalid and the judgment is void. See Hubicki v. Festina,

226 S.W.3d 405, 408 (Tex. 2007); Livanos, 333 S.W.3d at 874; see also Lytle v.

Cunningham, 261 S.W.3d 837, 840 (Tex. App.—Dallas 2008, no pet.) (“When the

attempted service of process is invalid, the trial court acquires no personal

jurisdiction over the defendant, and the default judgment is void.”); Marrot

Commc’ns, Inc., 227 S.W.3d at 376 (“Virtually any deviation from the statutory

requisites for service of process will destroy a default judgment.”); Wright Bros.

Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex. App.—Houston [1st Dist.] 2001,

no pet.) (“Jurisdiction over a defendant must be established in the record by an

affirmative showing of service of citation . . . .”). And if the return of service does

not also show strict compliance with the rules, then service is invalid and a default


                                          7
judgment cannot stand. See Livanos, 333 S.W.3d at 875; McGraw–Hill, Inc. v.

Futrell, 823 S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied).

It is well “established . . . that a default judgment cannot withstand direct attack by

a defendant who complains that he was not served in strict compliance with

applicable requirements.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). And

a party may raise defective service for the first time on appeal. Id. at 837.

      A trial court may render a protective order against a respondent who does not

appear at a hearing if the respondent received service of the application and notice

of the hearing. TEX. FAM. CODE ANN. § 85.006 (Vernon 2014). With exceptions

not applicable here, service of the application must be in the manner as citation under

the rules of civil procedure. Id. at § 82.043(c) (Vernon 2014). Under rule 107,

      No default judgment shall be granted in any cause until proof of
      service . . . shall have been on file with the clerk of the court ten days,
      exclusive of the day of filing and the day of judgment.

TEX. R. CIV. P. 107. Proof of service, or the return, must “affirmatively reveal[ ] that

it has been in the district clerk’s office for the required ten days” before a default

judgment is rendered and, if not, the default judgment is “void.” Livanos, 333

S.W.3d at 875 (citation omitted); see also Uvalde Country Club, 690 S.W.2d at 885

(when reviewing default judgment no presumptions indulged in favor of proper

return of citation); Union Pac. Corp. v. Legg, 49 S.W.3d 72, 78 (Tex. App.—Austin




                                           8
2001, no pet.) (failure to demonstrate return on file for requisite ten days before

default judgment issued “violates the strict-compliance requirement”).

       Here, the trial court issued its default protective order on September 9, 2009.

At the hearing on Barbara’s application for the order, the trial court stated that the

return of service was filed the same day, i.e., on September 9, 2009. However, the

return of service in the clerk’s record shows that the return was filed with the district

clerk on September 14, 2009, five days after the trial court issued the default

protective order. Either way, because the return of service was not on file with the

district clerk for ten days prior to the trial court’s issuance of its default order against

David, service of process did not strictly comply with rule 107 and was invalid. See

TEX. R. CIV. P. 107; Livanos, 333 S.W.3d at 875; see also Futrell, 823 S.W.2d at

416 (return of service must strictly comply). And “[p]roof after the default judgment

cannot supply a missing element of service and validate a default judgment rendered

on defective service.” Futrell, 823 S.W.2d at 417.

       Because the record does not affirmatively show strict compliance with the

rules of civil procedure in serving David, the trial court did not acquire personal

jurisdiction over him and the default order rendered against him is void. See

Livanos, 333 S.W.3d at 875 (trial court lacked personal jurisdiction over defendant

and default judgment void where return of service filed same day as rendition of

judgment); see also Midstate Envtl. Servs., LP v. Peterson, 435 S.W.3d 287, 290


                                             9
(Tex. App.—Waco 2014, no pet.) (default judgment precluded, where no indication

return “was ever filed with the clerk of the court, let alone that it was on file for ten

days”); Chupp v. Chupp, No. 01-10-00197-CV, 2011 WL 2623996, at *3 (Tex.

App.—Houston [1st Dist.] Jun. 30, 2011, no pet.) (mem. op.) (trial court erred in

rendering default decree after invalid service, which failed to strictly comply with

rule 107).

      Although David later admitted that he was served on September 4, 2009, an

“admission regarding acceptance of service” does not “revive a default judgment

taken when the court lacked jurisdiction.” See Futrell, 823 S.W.2d at 417. Actual

notice, without proper service, is not sufficient to invoke a trial court’s jurisdiction

to render a default judgment. Wilson, 800 S.W.2d at 836 (defendant’s admission of

receipt of suit papers not sufficient to confer jurisdiction); Nichols v. Nichols, 857

S.W.2d 657, 659 (Tex. App.—Houston [1st Dist.] 1993, no writ) (actual notice of

lawsuit not sufficient to confer jurisdiction over improperly served defendant in

context of bill of review of default judgment modifying divorce decree).

      We conclude that the trial court erred in issuing its default protective order

against David because he was not properly served with Barbara’s application.

Accordingly, we hold that the trial court erred in denying David’s petition for a bill

of review. See Mabon, 369 S.W.3d at 812 (“[W]hen a bill-of-review plaintiff claims

a due process violation for no service or notice, it is relieved of proving the first two”


                                           10
bill-of-review elements, and the third element, lack of negligence, is “conclusively

establish[ed]”).

      We sustain David’s eighth issue.3

                            Temporary Protective Order

      In his first and second issues, David argues that the 280th District Court of

Harris County erred in issuing a temporary protective order against him on August

25, 2009 because the “evidence presented” in Barbara’s application and affidavit in

support “was insufficient for the court to make the requisite finding[s]” and the

court’s “four day delay” in issuing the temporary protective order was

“unreasonable” in that it “denied [him] his rights of due process and notice and

fail[ed] to comply with the Texas Family Code and the Texas Rules of Civil

Procedure.” We do not have subject matter jurisdiction to resolve complaints about

a temporary protective order that, as here, has been superseded by a final protective

order. See White v. White, No. 01-10-01124-CV, 2011 WL 5027042, at *1 (Tex.

App.—Houston [1st Dist.] Oct. 20, 2011, no pet.) (mem. op.); Ford v. Harbour, No.



3
      Having sustained David’s eighth issue, we need not reach his third, fourth, fifth, and
      sixth issues, in which he argues that service was also defective because the trial
      court clerk delayed in issuing service; the Harris County Constable’s Office
      “willfully failed to attempt to serve” him “for more than 4 full days”; failure to
      timely serve him violated his due process rights; and notice of the hearing on the
      application was defective. Further, we need not reach David’s seventh issue,
      pertaining to his defenses, in which he asserts that “in the prosecution of” Barbara’s
      application, the assistant district attorney “failed to disclose” certain evidence to the
      trial court.
                                             11
14-07-00832-CV, 2009 WL 679672, at *2 (Tex. App.—Houston [14th Dist.] Mar.

17, 2009, no pet.) (mem. op.).

      Accordingly, we do not address David’s first and second issues.

                                    Extrinsic Issues

      In his ninth issue, David asserts that after the trial court issued its September

9, 2009 default protective order, he was “subjected to additional due process

violations,” i.e., a subsequent protective order based on his violation of the first order

and a judgment against him for attorney’s fees. In his tenth issue, David asserts that

he previously filed in this Court a petition for a writ of mandamus and he “fully

incorporates [his] Petition for Writ of Mandamus with all of its appendi[c]es in this

Appe[llate] Brief to have the full effect of the arguments, issues and facts presented

therein.” Because a petition for a bill of review is an independent proceeding, the

scope of our review is limited to David’s appeal of the trial court’s order denying his

petition for a bill of review, in which he challenged the trial court’s September 9,

2009 default protective order. See In re A.A.S., 367 S.W.3d 905, 909 (Tex. App.—

Houston [14th Dist.] 2012, no pet.).

      Accordingly, we do not address David’s ninth and tenth issues.




                                           12
                                     Conclusion

      We reverse the trial court’s order denying David’s petition for a bill of review

and remand the case to the trial court for further proceedings consistent with this

opinion.4




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Higley, and Brown.




4
      We note that no new service of process is necessary. See TEX. R. CIV. P. 123
      (“Where the judgment is reversed on appeal . . . because of defective service of
      process, no new citation shall be issued or served, but the defendant shall be
      presumed to have entered his appearance to the term of the court at which the
      mandate shall be filed.”); see also Livanos v. Livanos, 333 S.W.3d 868, 881 (Tex.
      App.—Houston [1st Dist.] 2010, no pet.) (citing HB & WM, Inc. v. Smith, 802
      S.W.2d 279, 282 (Tex. App.—San Antonio 1990, no writ) (holding, by appealing
      from default judgment, appellants personally appeared in case and further citation
      unnecessary)).
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