                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                                    OPINION
                                               No. 04-14-00556-CV

                    IN THE INTEREST OF C.L.W., S.S.W., and L.M.W., Children

                        From the 37th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2010-CI-15199
                                Honorable Richard Price, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Patricia O. Alvarez, Justice

Sitting:            Rebeca C. Martinez, Justice
                    Patricia O. Alvarez, Justice
                    Luz Elena D. Chapa, Justice

Delivered and Filed: December 9, 2015

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           Steven W. has filed a restricted appeal to set aside a default judgment against him. Steven

argues the affidavit upon which the trial court ordered alternative service 1 was insufficient and

there was insufficient evidence supporting the trial court’s award of attorney’s fees and costs. We

affirm in part and reverse and remand in part.

                                                  BACKGROUND

           Steven and Andra W. were divorced in 2011. On June 28, 2012, Andra filed a Petition to

Modify the Parent-Child Relationship to deny Steven possession of and access to their three

children, C.L.W., S.S.W., and L.M.W. Andra alleged that while the children were in Steven’s



1
    The Honorable Antonia Arteaga signed the order granting Andra’s motion for alternative service.
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possession, his girlfriend subjected the children to physical and verbal abuse. Andra also requested

her attorney’s fees and costs.

          Andra attempted to effectuate personal service upon Steven by a process server at a

residential address on W. Woodlawn Avenue in San Antonio, Texas. The process server made

three unsuccessful attempts to serve Steven in person at that address. Andra filed a motion for

alternative service and attached the process server’s affidavit describing the failed attempts to

personally serve Steven. The trial court granted Andra’s motion for alternative service. Andra’s

process server thereafter effectuated service by affixing the relevant papers to the door of the same

house on W. Woodlawn Avenue. Steven did not file an answer. The trial court held a hearing on

Andra’s petition, and Steven did not appear. The trial court granted Andra a default judgment and

awarded her $3,500 in attorney’s fees and $207 in costs. Steven then filed a notice of restricted

appeal.

                         STANDARD OF REVIEW OF A RESTRICTED APPEAL

          An appellant bringing a restricted appeal can prevail only if: (1) he filed notice of the

restricted appeal within six months after the judgment was signed; (2) he was a party to the

underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment

complained of and did not timely file any postjudgment motions or requests for findings of fact

and conclusions of law; and (4) error is apparent on the face of the record. Ins. Co. of State of Pa.

v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam); accord Alexander v. Lynda’s Boutique,

134 S.W.3d 845, 848 (Tex. 2004) (citing TEX. R. APP. P. 26.1(c), 30). “The face of the record is

limited to documents that were before the court at the time a challenged order was signed.” In re

Guardianship of V.A., 390 S.W.3d 414, 416 (Tex. App.—San Antonio 2012, pet. denied). The

only restricted-appeal requirement at issue here is whether error is apparent on the face of the

record.
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                             MOTION FOR ALTERNATIVE SERVICE

       In his first issue, Steven argues the trial court erred by granting Andra’s motion for

alternative service because the supporting affidavit was insufficient. In support of her motion,

Andra attached an affidavit from Monica G. Gamez. In her affidavit, Gamez testified she attempted

to serve Steven personally three times between June 30, 2012, and July 5, 2012, at an address on

Woodlawn Avenue in San Antonio. The affidavit described the results of her three attempts:

       a.      Date:          June 30, 2012
               Time:          9:00 a.m.
               Address:       [ ] W. Woodlawn, San Antonio, Texas
               Method:        Personally
               Result:        No service-No answer at the door. Respondent’s green
                              pickup truck was parked in the driveway of the residence. I
                              did notice someone inside the home looking through the
                              blinds.

       b.      Date:          July 2, 2012
               Time:          8:35 p.m.
               Address:       [ ] W. Woodlawn, San Antonio, Texas
               Method:        Personally
               Result:        No service-A young lady who stated her name was
                              Stephanie said [Steven] was not home. Stephanie was
                              curious as to why Steven was being served “again” as he had
                              just been served Friday by a Mr. Moore. I informed her I
                              knew nothing about it and gave her my business card to give
                              to [Steven] to make arrangements to meet for delivery of
                              documents. Stephanie stated she would give [Steven]
                              message. I noticed that [Steven]’s pickup truck was parked
                              in the driveway of the residence.

       c.      Date:          July 5, 2012
               Time:          11:30 a.m.
               Address:       [ ] W. Woodlawn, San Antonio, Texas
               Method:        Personally
               Result:        No service-No answer at the door.

       In a restricted appeal, defective service of process constitutes error apparent on the face of

the record. See Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152-53 (Tex. 1994). For a default

judgment to be sustained based on substituted service, the burden is on the plaintiff to prove that


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the defendant was served in the manner required by the applicable statute. Dolly v. Aethos

Commc’ns Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.). Service of process

must be performed in strict compliance with the appropriate statutory provisions to support a

default judgment. See McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). “Virtually any

deviation will be sufficient to set aside a default judgment in a restricted appeal.” Dolly, 10 S.W.3d

at 388. Strict compliance is especially important when substituted service under Texas Rule of

Civil Procedure 106 is involved. Id. We review the order on motion for alternative service and the

return of service to determine whether the requirements in the order were strictly followed. See id.

Rule 106 provides as follows:

       (a) Unless the citation or an order of the court otherwise directs, the citation shall
       be served by any person authorized by Rule 103 by

               (1) delivering to the defendant, in person, a true copy of the citation with
               the date of delivery endorsed thereon with a copy of the petition attached
               thereto, or

               (2) mailing to the defendant by registered or certified mail, return receipt
               requested, a true copy of the citation with a copy of the petition attached
               thereto.

       (b) Upon motion supported by affidavit stating the location of the defendant’s usual
       place of business or usual place of abode or other place where the defendant can
       probably be found and stating specifically the facts showing that service has been
       attempted under either (a)(1) or (a)(2) at the location named in such affidavit but
       has not been successful, the court may authorize service

               (1) by leaving a true copy of the citation, with a copy of the petition
               attached, with anyone over sixteen years of age at the location specified in
               such affidavit, or

               (2) in any other manner that the affidavit or other evidence before the court
               shows will be reasonably effective to give the defendant notice of the suit.

TEX. R. CIV. P. 106(b).

       Steven argues, and the dissent agrees, the supporting affidavit is insufficient because the

Woodlawn address was not the home address listed as his in the divorce decree. Rule 106 does not
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require that a defendant be served at his home address if service is attempted at his “usual place of

business . . . or other place where the defendant can probably be found.” See TEX. R. CIV. P. 106(b).

       Steven also argues, and the dissent suggests, Gamez’s affidavit is insufficient because it

fails to expressly state the Woodlawn address is his “usual place of business or usual place of

abode or other place where [he] can probably be found.” However, “the plain language of the rule

does not require the affiant to state that the address is the defendant’s usual place of abode or

business or a place where the defendant can probably be found.” Goshorn v. Brown, No. 14-02-

00852-CV, 2003 WL 22176976, at *2 (Tex. App.—Houston [14th Dist.] Sept. 23, 2003, no pet.)

(mem. op.). An affidavit is sufficient under Rule 106 if it provides “evidence of probative value

that the location stated in the affidavit is the defendant’s usual place of business or usual place of

abode or other place where the defendant can probably be found.” Garrels v. Wales Transp., Inc.,

706 S.W.2d 757, 759 (Tex. App.—Dallas 1986, no writ); accord Goshorn, 2003 WL 22176976,

at *2 (holding facts detailed in affidavit supported that the location stated was defendant’s usual

place of abode or other place where defendant could likely be found); see also See Luby v. Wood,

No. 03-12-00179-CV, 2014 WL 1365736, at *3 (Tex. App.—Austin Apr. 2, 2014, no pet.) (mem.

op.) (“[A] plaintiff is not required to include the actual language from the rules.”).

       Steven further argues Gamez’s affidavit gives no “details as to why or how [service at] the

Woodlawn address would reasonably notify Steven of the lawsuit [and] the affidavit is conclusory

and insufficient to support substituted service.” We disagree. Gamez’s affidavit states that on two

separate occasions Steven’s truck was parked in the driveway at the Woodlawn address. It also

states that Stephanie, the young woman who answered the door, informed Gamez that Steven “was

not home,” indicated she knew Steven had been recently served with process, and stated she would

give Steven the message. Gamez’s affidavit is not conclusory because the affidavit does not

conclusorily assert, without any supporting facts, that “Service at the Woodlawn address would be
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reasonably effective to provide Steven with notice of the suit.” If Steven is correct that the purpose

of the supporting affidavit is to assure the trial court that alternative service would be reasonably

effective to provide notice, then the facts in Gamez’s affidavit would serve that purpose much

more effectively than a mere conclusory statement such as, “The Woodlawn address is a place

where Steven can probably be found.” See Goshorn, 2003 WL 22176976, at *2 (noting “a higher

degree of precision in an affidavit is preferable” but not required for an affidavit under Rule

106(b)).

         Although Steven does not argue why the facts in Gamez’s affidavit were insufficient, the

dissent would hold the affidavit was conclusory because Gamez, without any further details, stated

the truck was “Respondent’s green pickup truck.” Nothing in the record contradicts Gamez’s

statement or provides a basis for us to conclude the trial court erred by accepting this statement as

true. Instead, the record confirms the trial court awarded Steven a pickup truck in the final decree

of divorce. While the dissent would require Gamez’s affidavit to contain additional details 2

explaining the supporting facts included in the affidavit, neither the plain language of Rule 106(b)

nor the cases interpreting Rule 106(b) hold supporting affidavits to that standard. See id. We hold

Gamez’s affidavit provided evidence of probative value that the Woodlawn address was Steven’s

“usual place of abode or other place where [he could] probably be found.” See TEX. R. CIV. P.

106(b); Goshorn, 2003 WL 22176976, at *2. Therefore, the trial court did not err by ordering

substituted service.




2
  The dissent suggests further details such as a vehicle identification number (VIN) or a license plate would have been
sufficient. But such details would nevertheless beg the same question the dissent asks with regard to Gamez’s
statement that Steven’s truck was at the Woodlawn address, “How does Gamez know Steven owned a vehicle with
the VIN or license plate number provided in the affidavit?”

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                                   ATTORNEY’S FEES & COSTS

       In his second issue, Steven argues the evidence is insufficient to support the award of

Andra’s attorney’s fees and costs. If damages are unliquidated, a court rendering a default

judgment must hear evidence on damages. TEX. R. CIV. P. 243; Holt Atherton Indus., Inc. v. Heine,

835 S.W.2d 80, 83 (Tex. 1992). Attorney’s fees “are by their very nature unliquidated unless the

exact amount is fixed by agreement.” Siddiqui v. West Bellfort Prop. Owners Ass’n, 819 S.W.2d

657, 659 (Tex. App.—El Paso 1991, no writ). Andra argues the trial court could have inferred

from its review of the documents and the number of hearings that $3,500 would have been a

reasonable fee. However, at the hearing on Andra’s petition, Andra’s counsel simply requested

$3,500 in attorney’s fees without presenting any evidence. Because the trial court heard no

evidence on Andra’s attorney’s fees, we reverse the attorney’s fees award and remand for a new

hearing. See Holt Atherton, 835 S.W.2d at 86 (“[W]hen an appellate court sustains a no evidence

point after an uncontested hearing on unliquidated damages following a no-answer default

judgment, the appropriate disposition is a remand for a new trial on the issue of unliquidated

damages.”).

       The trial court awarded Andra $207 in costs. “The successful party to a suit shall recover

of his adversary all costs incurred therein, except where otherwise provided.” TEX. R. CIV. P. 131.

To determine the proper amount of costs to be awarded to the prevailing party, the court relies on

the clerk’s bill of costs. Bertrand v. Bertrand, 449 S.W.3d 856, 870 (Tex. App.—Dallas 2014, no

pet.). The clerk’s bill of costs shows court costs exceeded $500. Therefore, the record supports the

trial court’s award of $207 in costs. See id.




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                                          CONCLUSION

       We reverse the trial court’s award of attorney’s fees and remand for a new hearing on

Andra’s attorney’s fees. We affirm the remainder of the trial court’s judgment.

                                                Luz Elena D. Chapa, Justice




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