Reversed and Remanded and Memorandum Opinion filed August 8, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00207-CV

                        CYNTHIA JACKSON, Appellant
                                         V.
   CANDACE CAIN-STEGEMOLLER, INDIVIDUALLY AND AS NEXT
            FRIEND OF MINOR CHILD K.S., Appellee

                     On Appeal from the 21st District Court
                          Washington County, Texas
                         Trial Court Cause No. 36060

                          MEMORANDUM OPINION

      In this restricted appeal, appellant challenges the trial court’s rendition of a
no-answer default judgment. Among other arguments, appellant contends that the
trial court erroneously authorized substituted service at an address known to be
incomplete because the address was not the full address identified in the affidavit
filed in support of appellee’s motion for substituted service. We agree.
      Accordingly, we reverse the trial court’s default judgment and remand for
further proceedings.

I.    Legal Principles

      To prevail in a restricted appeal, the appellant must establish, among other
things not at issue in this appeal, that error is apparent on the face of the record.
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). In a restricted
appeal from a no-answer default judgment, error is apparent on the face of the
record if the trial court lacked jurisdiction over the defendant due to inadequate
service of process. See McKanna v. Edgar, 388 S.W.2d 927, 928–29 (Tex. 1965).

      If a defendant has not answered a lawsuit, a trial court acquires jurisdiction
over the defendant solely on proof of proper service. Furst v. Smith, 176 S.W.3d
864, 868 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Wilson v. Dunn,
800 S.W.2d 833, 836 (Tex. 1990)). A default judgment cannot withstand a direct
attack by a defendant who complains that she was not served in strict compliance
with applicable requirements. Wilson, 800 S.W.2d at 836. There is no presumption
in favor of valid issuance, service, and return of citation. Id. Strict compliance with
the rules for service must affirmatively appear on the record for a default judgment
to withstand direct attack. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152
(Tex. 1994) (per curiam).

      The rule for substituted service provides as follows:

      (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



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              (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. Generally, we review de novo the trial court’s authorization of
substituted service and the rendering of a default judgment based on such service.
See Furst, 176 S.W.3d at 869–70; see also Nelson v. Nelson, No. 14-16-00602-CV,
2017 WL 2484378, at *2 (Tex. App.—Houston [14th Dist.] June 8, 2017, no pet.)
(mem. op.) (“Whether service strictly complies with the rules is a question of law
that we review de novo.”).

II.    Background1

       Appellee sued appellant and alleged that appellant could be served at 2001
FM 389 Road, Brenham, Texas 77833. Appellee filed a motion for substituted
service and again alleged that appellant could be served at 2001 FM 389 Road,
Brenham, Texas 77833. Appellee attached an affidavit from the process server, by
which the process server testified that the address of 2001 FM 389, Brenham TX
77833 was “a trailer park with over 50 trailers.” The process server left the trailer
park and later learned through public records of the Texas Department of Motor
Vehicles that appellant’s “full address” was 2001 FM 389, #14, Brenham, TX
77833. The process server spoke with appellant and another man on the phone and
concluded the affidavit: “Due to phone calls from the defendant and from Mr.
Thurman Gains, (who also resides at the current address found for defendant), I
believe the best [address] for defendant Cynthia Jackson is 2001 FM 389, #14,
Brenham TX 77833.”
       1
         We have reviewed the record, but we also accept as true the facts stated in appellant’s
brief because appellee has failed to file a brief. See Tex. R. App. P. 38.1(g).

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       The trial court granted appellee’s motion for substituted service and
authorized service in one of two ways:

       (1) by leaving a true copy of the citation, with a copy of the
       Petition and this Order authorizing substituted service attached, with
       anyone over sixteen (16) years of age at 2001 FM 389 Road,
       Brenham, Texas 77833; or
       (2) by firmly affixing a true copy of the citation, with a copy of the
       Petition and this Order authorizing substitute service attached, to the
       front door of Defendant’s last known usual place of abode or business
       at the above address.

The court also ordered that service “shall not be deemed perfected” unless the
specified documents were mailed to the same address by regular and certified mail,
and a copy of any “green card” returned by the post office would be attached to the
return of service.

       Appellee then moved for a default judgment, again stating that appellant
could be served at 2001 FM 389 Road, Brenham, Texas 77833. Appellee attached
as an exhibit an affidavit from the process server, who testified that he served the
address 2001 FM 389 Road, Brenham, TX 77833 by attaching the specified
documents to the front door. The process server testified that he mailed the
documents to the same address by first class and certified mail, and, “The Certified
Mail envelope was returned ‘Insufficient Address.’” Appellee also attached as an
exhibit to the motion the Texas Department of Motor Vehicles record showing the
street address for appellant was “2001 FM 389 #14.”

       The trial court granted the default judgment and signed a final judgment in
appellee’s favor for nearly $650,000 in damages.2


       2
          The record also includes an envelope from the Washington County District Clerk
postmarked the day after the trial court signed the default judgment. The envelope is addressed to
appellant at 2001 FM 389 Road, Brenham, Texas 77833. The envelope includes a sticker from
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III.   Analysis

       Strict compliance with the rules for service of citation does not affirmatively
appear in this record. Rule 106 requires a plaintiff to attach an 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.” Tex. R. Civ. P. 106(b). Here,
the affidavit showed that the “full” and “best” address for appellant included “#14”
in the address because the address at which the trial court ultimately authorized
substituted service was a trailer park with over fifty trailers. Rule 106 allows a trial
court to authorize substituted service at “the location specified in such affidavit” or
“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). But here, the trial court authorized substituted service at an address
different from the “full” and “best” address described in the affidavit. Indeed, the
certified mailing that the trial court ordered to be sent was returned by the post
office for having an “insufficient” address.

       We conclude that the trial court’s order to serve appellant at an incomplete
address, which was not the “full” and “best” address described in the affidavit, did
not provide for service that would be reasonably effective to give appellant notice
of the suit. Because the trial court had evidence that appellant’s address included
“#14,” and the address at which the trial court authorized substituted service did
not, the record does not reflect strict compliance with the statute authorizing
substituted service. Cf. Light v. Verrips, 580 S.W.2d 157, 158–59 (Tex. App.—
Houston [1st Dist.] 1979, no writ) (reversing default judgment because the record
contained a letter from the defendant’s father stating that the defendant did not live


the post office stating “Return to Sender,” “Not Deliverable as Addressed,” and “Unable to
Forward.”

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at the address where the trial court authorized substituted service, and the notice of
the default judgment was returned to the clerk of the court with the notification
“No Such Street”).

      Error is apparent on the face of the record. Appellant’s sole issue is
sustained.

IV.   Conclusion

      Having sustained appellant’s issue, we reverse the trial court’s judgment and
remand for further proceedings.




                                       /s/       Ken Wise
                                                 Justice


Panel consists of Justices Wise, Zimmerer, and Spain.




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