                         In the
                    Court of Appeals
            Second Appellate District of Texas
                     at Fort Worth
                 ___________________________
                      No. 02-18-00246-CV
                 ___________________________

                 PRISCILLA WYATT, Appellant

                                V.

ANISSA DELAINE DEAL, AS INDEPENDENT EXECUTOR OF THE ESTATE
                OF SYDNEY B. WYATT, Appellee




                 On Appeal from the County Court
                      Hood County, Texas
                     Trial Court No. P-08376


              Before Pittman, Bassel, and Womack, JJ.
              Memorandum Opinion by Justice Pittman
                           MEMORANDUM OPINION

      In two issues, Appellant Priscilla Wyatt (Priscilla) challenges the trial court’s no-

answer default judgment against her in favor of Appellee Anissa Delaine Deal, as

Independent Executor of the Estate of Sydney B. Wyatt (Anissa). In her first issue,

Priscilla asserts that the trial court erred in granting the default judgment due to lack

of a proper service return. In her second issue, Priscilla asserts that the default

judgment should be reversed due to lack of evidence supporting the damages and

attorney’s fee award. For the reasons set forth below, we need only address the first

issue and reverse the judgment below and remand to the trial court for further

proceedings.

                                    BACKGROUND

I.    Anissa Files a Probate Application for Her Father’s Will and Sues
      Priscilla in the Same Proceeding.

      Sydney B. Wyatt died in September 2017. On November 2, 2017, his daughter,

Anissa, applied in the County Court of Hood County, Texas to probate a will for Mr.

Wyatt dated April 2012. The county court admitted the will to probate under Cause

Number P-08376.

      In January 2018, Anissa, now independent executor of her father’s estate,

moved to transfer the proceeding to a statutory probate court judge because she was

“preparing to file suit against the Decedent’s spouse for breach of fiduciary duty” and

other claims. The case was assigned to Judge Oswin Chrisman.


                                            2
      On February 12, 2018, Anissa filed an original petition against Priscilla, Mr.

Wyatt’s wife at the time of his death, asserting claims of breach of fiduciary duty,

money had and received, and declaratory judgment. Anissa’s petition was also filed in

Cause Number P-08376.

      On February 15, 2018, Anissa filed a service return for her original petition.

The return indicated that service had been made on Priscilla that morning. An

individual named Gary Cooper signed the return in the section titled “Sheriff’s

Return.” Above the signature line appeared the text “Constable, County Sheriff[,] or

Authorized [P]erson,” with the words “Constable” and “County Sheriff” crossed out.

The identifier “Deputy” was typed underneath the signature line but had also been

crossed out.

      On February 26, 2018, Anissa filed a second service return, also by an

individual named Gary Cooper. The section labeled “Officer’s Return” had the words

“Sheriff, Constable[,] or Authorized Person” with the words “Sheriff” and

“Constable” crossed out. 1




      1
        For ease of reference, the service return filed on February 15, 2018 and the
service return filed on February 26, 2018 will be collectively referred to as “the service
returns.”


                                            3
II.    Priscilla Files Her Own Probate Application in a New Proceeding.

       In March 2018, Priscilla applied to probate a will for Mr. Wyatt dated March

2013. 2 She filed the application in the County Court of Hood County, Texas, and the

proceeding was assigned Cause Number P-08448. It was also assigned to Judge

Chrisman.    In response, Anissa filed a contest to this will. Importantly, Cause

Number P-08376 and Cause Number P-08448 were never consolidated, and Priscilla

never filed an answer in Cause Number P-08376.

III.   The Trial Court Denies Priscilla’s Probate Application and Grants
       Default Judgment on Anissa’s Claims Against Priscilla.

       On May 8, 2018, Judge Chrisman held a hearing in Cause Number P-08448 at

which he considered Priscilla’s probate application. After the testimony of Priscilla,

Anissa, and a handwriting expert testifying for Anissa, Judge Chrisman orally ruled

that Priscilla failed to prove up the validity of Mr. Wyatt’s March 2013 will and that he

was dismissing her application. The judge then stated, “We are dismissed. Now, do

we need to hear anything else?” Priscilla’s attorney stated,

       Just one last thing. There is still the probate matter in P-08376. We filed
       a probate. Subsequently, there was a petition filed in that under that
       cause number. We would ask the Court for leave to file a response in
       that case. These are separate issues.

Anissa’s attorney replied,




      Priscilla originally applied to probate a will dated May 14, 2012. In that same
       2

month, she amended her application to seek probate of a March 4, 2013 will.


                                            4
       [Priscilla is] here today and no answer has been filed in the ancillary case.
       I’d like to make a default—request a default judgment in cause number
       P-08376 regarding the breach of fiduciary duty and the declaratory
       judgment avoiding the deeds that were filed in multiple counties and
       requesting monetary relief.

       Judge Chrisman noted that there was an ongoing administration of Mr. Wyatt’s

estate (under Mr. Wyatt’s April 2012 will submitted by Anissa in Cause Number P-

08376) and that while Priscilla could later apply to submit a different will to probate if

she wanted, “[t]he Court is not inclined to grant a leave of absence—a leave at this

point for you to file any additional pleadings in this regard.”

       Priscilla’s attorney responded that he had been told that the two cases had been

consolidated but that he had not received a consolidation order, and that he believed

that Priscilla’s probate application “stayed whatever was occurring in the other one

until such time as the [trial c]ourt made a decision.” Judge Chrisman replied that

Priscilla’s probate application had been dismissed and that there was an ongoing

administration of Mr. Wyatt’s estate.

      The parties then had this exchange:

             [Anissa’s attorney]: There is a lawsuit for breach of fiduciary duty.

            THE COURT: So I suggest that if you have some other will you
      wish to submit for probate, then that needs to be done by appropriate
      form.

             [Priscilla’s attorney]: We’ll do that, Your Honor.

             ....




                                            5
            [Anissa’s attorney]: I would like to file this [Non-military
      Affidavit] in the earlier cause number, Your Honor, and take a default
      judgment in that breach of fiduciary duty case.

             [Priscilla’s attorney]: Your Honor, may we be excused?

            THE COURT: Well, I have been handed a default judgment in
      cause P-08376. Do you care to speak to that matter?

             [Priscilla’s attorney]: I did, Your Honor. I objected to it and
      asked for leave of court to file an answer in that case because—

             THE COURT: And I overruled that.

            [Priscilla’s attorney]: —the two cases, I was told, were
      consolidated, but we never received an order actually consolidating
      them.

              [Anissa’s attorney]: There was no motion filed to consolidate, and
      this is the third time this matter has been set. You failed to appear the
      first time this was set—

            [Priscilla’s attorney]: Well, I was aware that the Court sua sponte
      could consolidate a case.

           THE COURT:           No answer having been filed, the default
      judgment is granted.

             [Anissa’s attorney]: Thank you, Your Honor.

      That same day, Judge Chrisman, without hearing any damages evidence, signed

a default judgment against Priscilla in Cause Number P-08376, awarding Anissa

unliquidated damages of $500,000; decreeing void several deeds that Priscilla executed

under a power of attorney; ordering that the $249,000 that Priscilla received for the

sale of certain property be held in a constructive trust for Anissa’s benefit; and

awarding Anissa, as independent executor, $5,000 in attorney’s fees, plus conditional


                                          6
appellate fees (the Default Judgment). Later that month, Judge Chrisman signed an

order denying Priscilla’s probate application in Cause Number P-08448.

      On June 1, 2018, Priscilla filed a motion for new trial in Cause Number P-

08376, which the court denied on July 10, 2018 after holding a hearing on the motion

the same day.

                                    DISCUSSION

I.    A Default Judgment Is Void if Service of Process Is Invalid.

      When a defendant has not answered a lawsuit, a trial court acquires jurisdiction

over the defendant only through proof of proper service.         See Tex. R. Civ. P.

107 (prohibiting rendition of default judgment unless proof of proper service or

process and return, whether in compliance with governing rules or as ordered by

court, have been on file for ten days); Livanos v. Livanos, 333 S.W.3d 868, 874 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (“A claim of a defect in service of process

challenges the trial court’s personal jurisdiction over the defendant.”). For a default

judgment to be properly rendered, the record must affirmatively show that, at the time

default was entered, citation was properly served or the defendant waived service.

Garcia v. Ennis, 554 S.W.3d 209, 214 (Tex. App.—Fort Worth 2018, no pet.); Marrot

Commc’ns, Inc. v. Town & Country P’ship, 227 S.W.3d 372, 378 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied). Therefore, to withstand a direct attack on a default

judgment, a party obtaining a default judgment must demonstrate that it complied



                                          7
with the rules for service of citation. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254,

256 (Tex. 2009); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).

       There is no presumption in favor of proper issuance, service, and return of

citation. Primate Constr., 884 S.W.2d at 152; Lytle v. Cunningham, 261 S.W.3d 837,

841 (Tex. App.—Dallas 2008, no pet.). If the record fails to affirmatively show strict

compliance with the rules of civil procedure governing issuance, service, and return of

citation, there is error apparent on the face of the record and attempted service of

process is invalid and of no effect. Lytle, 261 S.W.3d at 840; accord Lejeune, 297 S.W.3d

at 255 (stating that the Texas Supreme Court has required for over a century that

strict compliance with the rules for service of citation affirmatively appear on the

record for a default judgment to withstand direct attack). When the attempted service

of process is invalid, the trial court acquires no personal jurisdiction over the

defendant, and the default judgment is void. Lytle, 261 S.W.3d at 840; see Mandel v.

Lewisville Indep. Sch. Dist., 445 S.W.3d 469, 474 (Tex. App.—Fort Worth 2014, pet.

denied). Whether service strictly complied with the rules is a question of law that this

court reviews de novo. See Offshore Express, Inc. v. Klein Investigations & Consulting, No.

09-17-00333-CV, 2018 WL 6542502, at *3 (Tex. App.—Beaumont Dec. 13, 2018, no

pet.) (mem. op.); Furst v. Smith, 176 S.W.3d 864, 869–70 (Tex. App.—Houston [1st

Dist.] 2005, no pet.).




                                             8
II.   Service of Process on Priscilla Was Defective.

      In her first issue, Priscilla directly attacks the Default Judgment and contends

that the trial court erred in granting it because there was no proper service return. In

response, Anissa contends that Priscilla waived service of process.

      A.     The Service Returns on Priscilla Did Not Comply with Texas
             Estates Code Requirements.

      Pursuant to the Texas Estates Code, in counties such as Hood County where

there is no statutory probate court, a matter related to a probate proceeding includes

“a claim brought by a personal representative on behalf of an estate.” Tex. Est. Code

Ann. § 31.002(a)(3). In such cases, as here, personal service on a person located in

state must be undertaken by “the sheriff or constable.” Id. § 51.051(b) (emphasis

added).

      Examining the record before us, the service returns strike out the words

“sheriff” and “constable,” and are evidence that Gary Cooper, the person who

effected service, was neither a sheriff nor a constable. See Le Nguyen v. Lopez, No. 07-

15-00128-CV, 2018 WL 4225010, at *2 n.2 (Tex. App.—Amarillo Sept. 5, 2018)

(examining service return and noting that “[t]he words ‘Constable’ and ‘Sheriff’

contained interlineations or strike-marks.     These interlineations indicate that the

person who allegedly served process was neither a constable nor a sheriff.”), modified

on other grounds, No. 07-15-00128-CV, 2018 WL 5093286 (Tex. App.—Amarillo Oct.

18, 2018, no pet.) (mem. op. on reh’g). Accordingly, the record does not affirmatively


                                           9
show that the service returns comply with Texas Estates Code section 51.051(b). See

Tex. Est. Code Ann. § 51.051(b); cf. Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex.

App.—Texarkana 2004, no pet.) (“Virtually any deviation from the statutory requisites

for service of process will destroy a default judgment.” (emphasis added)).

      B.     The Service Returns Did Not Comply with Requirements of the
             Texas Rules of Civil Procedure.

      Even if service requirements found in Texas Estates Code section 51.051(b)

did not apply in this case, the service returns on Priscilla are defective pursuant to the

requirements of the Texas Rules of Civil Procedure. As this court recently stated,

“Strict compliance with the rules governing issuance, service, and return of citation is

mandatory.” Garcia, 554 S.W.3d at 213–14 (citing Primate Constr., 884 S.W.2d at 152).

“Failure to affirmatively show strict compliance with the rules of civil procedure

renders the attempted service of process invalid and of no effect.” Id. (citing Uvalde

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

Z.J.W., 185 S.W.3d 905, 908 (Tex. App.—Tyler 2006, no pet.) (“We iterate that ‘strict

compliance’ means literal compliance with the rules.” (emphasis added)).

      Rule 107(e) of the Texas Rules of Civil Procedure expressly provides, “The

officer or authorized person who serves or attempts to serve a citation must sign the

return. If the return is signed by a person other than a sheriff, constable, or the clerk

of the court, the return must either be verified or be signed under penalty of perjury.”

Tex. R. Civ. P. 107(e).


                                           10
      As previously described, the service returns contain strike-marks through the

words “constable” and “sheriff”—indicating that Gary Cooper, the person who

effected service, was neither a constable nor a sheriff. Here, neither service return is

verified or signed under penalty of perjury by Gary Cooper as required by Rule 107(e).

Moreover, Rule 107(b)(10) mandates that if the person serving process is a private

process server authorized by the Supreme Court, the return must include the

identification number and expiration date of the process server’s authorizing

certificate. See Tex. R. Civ. P. 107(b)(10). However, this information is wholly absent

from both service returns. Accordingly, the service returns also fail to comply with

the Texas Rules of Civil Procedure. See Le Nguyen, 2018 WL 4225010, at *4 (“Without

proof of lawful service or strict compliance with the rules of procedure, the default

judgment must be reversed.”).

      C.     Priscilla Did Not Waive Service.

      In response, Anissa does not dispute that the record clearly demonstrates that

the service returns were deficient, rather she contends that Priscilla waived defective

service because she had actual notice of the lawsuit in which the Default Judgment

was entered and she generally appeared in the hearing before the trial court in which

the challenged Default Judgment was rendered. This argument is without merit.

      First, the argument that because Priscilla had actual notice of Cause Number P-

08376 and thus waived service is unavailing. It is well established that “[a]ctual notice

to a defendant, without proper service, is not sufficient to convey upon the court

                                           11
jurisdiction to render default judgment against him.”                  Offshore Express,

2018 WL 6542502, at * 3 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990);

Harrell v. Mex. Cattle Co., 11 S.W. 863, 865 (Tex. 1889)).

      Second, the argument that Priscilla—despite not answering—entered into a

general appearance in Cause Number P-08376 when her attorney asked at the May 8,

2018 hearing in Cause Number P-08448 to file an answer in Cause Number P-

08376 is creative but ultimately equally unavailing. Anissa is correct that Texas Rule

of Civil Procedure 120 provides that a defendant may, “in person, or by attorney, or

by his duly authorized agent, enter an appearance in open court” and that “[s]uch

appearance shall be noted by the judge upon his docket and entered in the minutes,

and shall have the same force and effect as if the citation had been duly issued and

served as provided by law.” Tex. R. Civ. P. 120. Anissa is also correct that “a party

enters a general appearance when it (1) invokes the judgment of the court on any

question other than the court’s jurisdiction, (2) recognizes by its acts that an action is

properly pending, or (3) seeks affirmative action from the court.” Exito Elecs., Co. v.

Trejo, 142 S.W.3d 302, 304 (Tex. 2004). But, in this case, Priscilla did not make any

appearance in Cause Number P-08376, the lawsuit in which the Default Judgment was

entered. The only lawsuit Priscilla or her lawyer appeared in was Cause Number P-

08448, Priscilla’s own lawsuit.

      Indeed, the record before this court could not be any clearer. As the trial court

stated at the May 8, 2018 hearing in Cause Number P-08448,

                                            12
      The case today is the application by the applicant Priscilla Gaye Wyatt
      for the probate of a will presented to the Court under cause number P-
      08448 . . . and, after due notice, the application for probate was set for
      this afternoon at one p.m. The parties have appeared . . . .

Moreover, this Court has located no court decision or secondary authority for the

incongruous proposition that an appearance in one lawsuit and a request to file an

answer in another lawsuit is sufficient to be deemed a general appearance waiving a

default judgment obtained by undisputedly deficient service.

      In summary, we hold that the Default Judgment was improper because the

record fails to reflect strict compliance with the service of process rules. As explained

herein, the irrefutable improper service returns render the Default Judgment void. See

Offshore Express, 2018 WL 6542502, at *4 (“[T]he record does not show strict

compliance with the Texas Rules of Civil Procedure for service of process and return

of service. . . . [W]e conclude that the trial court erred in rendering a default

judgment.”); see also Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex.

App.—Amarillo 1992, no writ) (“A default judgment cannot withstand direct attack

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

applicable requirements. Failure to affirmatively show strict compliance with the rules

of civil procedure renders the attempted service of process invalid and of no effect.”).




                                           13
We sustain Priscilla’s first issue on appeal without any need for this Court to reach her

second issue. See Tex. R. App. P. 47.1.3

                                     CONCLUSION

      Because we sustain Priscilla’s first issue on appeal, we reverse the Default

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

opinion.




                                                      /s/ Mark T. Pittman
                                                      Mark T. Pittman
                                                      Justice

Delivered: June 6, 2019




      3
       Because we conclude that the Default Judgment was improper because the
record fails to reflect strict compliance with the service of process rules, we need not
address the familiar factors set forth in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124,
126 (Tex. [Comm’n Op.] 1939). See Fid. & Guar. Ins. v. Drewery Constr. Co., 186 S.W.3d
571, 574 (Tex. 2006) (Craddock factors must be met only if the defendant against
whom a default judgment was entered was properly served but did not appear).


                                           14
