                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-12-00522-CV

Dionisio G. TORRES d/b/a Torres Design & Construction, Torres Design & Construction, Inc.,
                                and Torres Construction,
                                       Appellant

                                                 v.

                                         Leticia HAYNES,
                                              Appellee

                      From the 49th Judicial District Court, Webb County, Texas
                                Trial Court No. 2011CVF001094-D1
                             Honorable Jose A. Lopez, Judge Presiding

                                    OPINION ON REHEARING
Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 19, 2014

MOTION FOR REHEARING GRANTED; REVERSED AND REMANDED

           On November 6, 2013, we issued an opinion and judgment affirming the trial court’s no-

answer default judgment against the appellant, Dionisio G. Torres. Torres timely moved for

rehearing, and the appellee, Leticia Haynes, filed a response. After considering the motion and

response, we grant Torres’s motion, withdraw our opinion and judgment of November 6, 2013,

and substitute this opinion and judgment in their place.
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        Leticia Haynes hired Torres to build a restaurant in Laredo, Texas. In July 2011, Haynes

filed suit against Torres alleging breach of contract, breach of warranty, violations of the DTPA,

and negligence. On April 5, 2012, the court rendered a default judgment against Torres at the

conclusion of a hearing on Haynes’s unliquidated damages. In our earlier opinion and judgment,

we held the trial court did not err by denying Torres’s motion for new trial and in awarding

unliquidated damages.

        On rehearing, Torres contends for the first time that the default judgment against him “is

void because [Haynes] failed to prove service” on him. Points of error concerning the trial court’s

jurisdiction to proceed to judgment present questions of fundamental error and are exempt from

the general rule that points of error raised for the first time in a motion for rehearing are too late to

be considered. See Tex. Alcoholic Beverage Comm’n v. Sfair, 786 S.W.2d 26, 27 (Tex. App.—San

Antonio 1990, writ denied) (per curiam) (op. on reh’g) (holding that the district court lacked

subject-matter jurisdiction because appellees did not timely appeal from agency decision). A trial

court has no jurisdiction to render a default judgment when the rules governing service of process

have not been strictly complied with. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)

(“Actual notice to a defendant, without proper service, is not sufficient to convey upon the court

jurisdiction to render default judgment against him. . . . Rather, jurisdiction is dependent upon

citation issued and served in a manner provided for by law.”); Orgoo, Inc. v. Rackspace US, Inc.,

341 S.W.3d 34, 41 (Tex. App.—San Antonio 2011, no pet.) (“Because the record does not show

strict compliance with the rules regarding issuance, service, and return of citation, the trial court

had no jurisdiction over [the defendant] at the time the default judgment was rendered.”). Thus,

whether the trial court lacked jurisdiction over Torres is a matter of fundamental error that may be

raised for the first time on rehearing. See, e.g., Mapco, Inc. v. Carter, 817 S.W.2d 686, 687–88

(Tex. 1991) (per curiam) (summarily reversing and remanding after considering appellant’s
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contention, raised for the first time before the court of appeals in motion for rehearing, that portion

of trial court’s judgment against it was void because it was not a party in the trial court).

       “Strict compliance with the rules governing service of citation is mandatory if a default

judgment is to withstand an attack on appeal.” Ins. Co. of Pa. v. Lejeune, 297 S.W.3d 254, 256

(Tex. 2009). “There are no presumptions in favor of valid issuance, service, and return of citation

in the face of a direct attack on a default judgment,” Wilson, 800 S.W.2d at 836 (quoting Uvalde

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

(alteration omitted), and “[v]irtually any deviation from the rules regarding proper service of

process will result in the setting aside of a default judgment.” Bus. Staffing, Inc. v. Gonzalez, 331

S.W.3d 791, 792 (Tex. App.—Eastland 2010, no pet.). “The record must affirmatively show that

the trial court had jurisdiction over the defendant at the time that the judgment was rendered.”

Cates v. Pon, 663 S.W.2d 99, 101 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.)

(emphasis added).

       Here, the record shows that Torres was served by substituted service of citation, instead of

personal service. See generally TEX. R. CIV. P. 106. The record contains the serving officer’s

affidavit that two previous attempts to personally serve Torres had been made. See TEX. R. CIV. P.

106(b). The record also contains the return of service, on which the officer made a handwritten

notation that the citation was posted on the front door of Torres’s residence. See Primate Const.,

Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) (“The return of service . . . has long

been considered prima facie evidence of the facts recited therein.”).

       To comply with the rules governing substituted service of citation, Haynes was required to

file a motion supported by affidavit seeking substituted service, TEX. R. CIV. P. 106(b), and the

trial court was required to authorize substituted service in a manner “that the affidavit or other

evidence before the court shows will be reasonably effective to give the defendant notice of the
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suit.” TEX. R. CIV. P. 106(b)(2). The record does not contain a motion by Haynes seeking

substituted service, nor does it contain an order from the trial court authorizing service by posting

the citation on Torres’s door. There is nothing in the record to suggest that such a motion was filed

or that such an order was entered. The record’s lack of a motion requesting substituted service and

lack of an order authorizing substituted service—which are explicitly required by the rules—shows

that Torres was not served in strict compliance with the rules governing service of citation. See

Lejeune, 297 S.W.3d at 256; cf. Wilson, 800 S.W.2d at 836 (“In this case, [the defendant] was not

strictly served in compliance with Rule 106(b) because substituted service was not properly

authorized absent the affidavit explicitly required by the rule.”).

       Haynes argues that Torres waived service of citation when his attorney made a general

appearance on April 5, 2012—the day of the damages hearing at which the trial court orally

rendered default judgment. See TEX. R. CIV. P. 120. The only support in the record showing that

Torres’s attorney made an appearance is the trial court’s computerized docket sheet, containing

the following notation with respect to the April 5, 2012 hearing: “* * * AFTER THE HEARING,

ATTORNEY ARMANDO TREVINO MAKES HIS APPEARANCE FOR THE DEFENDANT,

AND IS NOTIFIED OF THE MAY 1ST SETTING BY THE COURT.” However, the reporter’s

record of the hearing clearly reflects that neither Torres nor his attorney were present before the

trial court rendered the default judgment at the conclusion of the hearing. At best, the docket sheet

shows that Torres’s attorney made an appearance after the trial court had already rendered the

default judgment against Torres without the jurisdiction to do so.

       The record shows that Torres was not served in strict compliance with the Rules of Civil

Procedure, and as a result, the trial court was without jurisdiction to render a default judgment

against Torres. See Wilson, 800 S.W.2d at 837; Orgoo, Inc., 341 S.W.3d at 41. The actions of

Torres’s attorney subsequent to the rendition of the default judgment could not retroactively
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validate or “breathe life” into the already rendered default judgment. Frazier v. Dikovitsky, 144

S.W.3d 146, 150 (Tex. App.—Texarkana 2004, no pet.); McGraw-Hill, Inc. v. Futrell, 823 S.W.2d

414, 417 (Tex. App.—Houston [1st Dist.] 1992, writ denied); Cates, 663 S.W.2d at 102.

       We reverse the judgment of the trial court and remand the cause for further proceedings

not inconsistent with this opinion.

                                                Luz Elena D. Chapa, Justice




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