                                    NO. 07-06-0112-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                    MAY 3, 2007
                          ______________________________

                            In the Interest of J.M.I., A Child
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                    NO. B34377-0510; HON. ED SELF, PRESIDING
                        _______________________________

                                      Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       The parents of the minor child J.M.I. appeal an order denying their request for a new

trial after a default judgment had been entered against them. Aurora Perez and Ismael

Iturralde contend, via four issues, that 1) the trial court erred by finding that both parties

had been served through substituted service on Aurora’s mother, 2) the parties had

presented sufficient evidence to satisfy the Craddock test and 3) the best interests of the

child warrant a new trial. We reverse and remand.

                                       Background

       Aurora and Ismael are the biological parents of J.M.I. Aurora’s brother, Ray Perez,

and his wife Christina filed suit to gain custody of the child on the basis that he had been

residing with them for the preceding six months. The suit was filed on October 27, 2005,
in Hale County, Texas. On October 31, 2005, Aurora and Ismael filed a “Petition for Writ

of Habeas Corpus” in the 255th Judicial District of Dallas County. A hearing was held on

the habeas petition, and the trial court issued an order directing Ray and Christina to return

J.M.I. to his parents. They complied with the directive. During this time, however, the Hale

County suit remained pending.

       Initial efforts by Ray to perfect personal service on either Aurora or Ismael were

unsuccessful. So, on November 21, 2005, he moved for an order authorizing substituted

service upon Aurora’s mother, Frances Perez. The request was purportedly justified

because both Aurora and Ismael allegedly were avoiding service. The motion was granted.

Thereafter, Frances was served with citation on November 22, 2005. Six days later, the

Hale County District Court conducted a hearing upon a pending motion for temporary relief.

Neither Aurora nor Ismael appeared at the proceeding and, once it was completed, the trial

court awarded Ray and Christina temporary managing conservatorship of J.M.I. Later that

day, Ray traveled to Dallas and obtained a writ of attachment for J.M.I. based upon the

Hale County order. A Dallas constable then served Aurora with the writ, seized the child,

and released J.M.I. to Ray.

       On December 20, 2005, the Hale County District Court convened a final hearing on

the petition of Ray and Christina. Again, neither Aurora nor Ismael appeared; nor had they

filed an answer to the proceeding. Eight days later, an order noting their default was

signed. It also appointed Ray and Christina permanent managing conservators of J.M.I.

Thereafter, the child’s parents moved to set aside the order and for a new trial. A hearing

was held on the motion in February of 2006, after which the motion was denied. Both

parents timely appealed.

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                                       Issues One through Four

        Aurora and Ismael contend that the trial court abused its discretion in denying their

motion for new trial. Various grounds are raised purportedly showing this. We will address

each ground in turn.

        Substitute Service

        The first ground involves an attack upon Ray’s attempt at substitute service. Aurora

and Ismael assert that such service was improper. We agree.

        It has been firmly established that a default judgment cannot withstand a direct

attack (such as this one) by a defendant who shows that he was not served in strict

compliance with the Texas Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836

(Tex. 1990); Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.–Houston [1st Dist.] 2005, no

pet.). Next, subsection (b) of rule 106 provides an alternative means for service but only

when personal service has "not been successful." See TEX . R. CIV. P. 106(b). To obtain

relief under that rule, the plaintiff must move for it and support his motion with an affidavit

stating 1) 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 2) the specific facts

showing that service had been attempted without success under either subsection of Rule

106(a) at the location mentioned in the affidavit. Id.1 Finally, these requirements are not

met through affidavits uttering nothing more than conclusions. Wilson v. Dunn, 800

S.W.2d at 36.

        1
          Rule 106(a) of the Rules of Civil Procedure specifically states that “[u]nless 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) m ailing to the defendant by registered or certified m ail,
return receipt requested, a true copy of the citation with a copy of the petition attached thereto.”

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       The record before us contains Ray’s motions for substituted service along with

affidavits purportedly justifying same. That pertaining to Aurora stated in pertinent part:

       The residence address of AURORA ESPERANZA PEREZ, Respondent, is
       unknown to me. To my knowledge she is actively avoiding service of
       process in this case. She moved out of her last known address in the middle
       of the night on November 10, 2005 after the private process server had
       attempted to serve her that afternoon. She abandoned one of her other
       children in the parking lot when she drove off with her boyfriend and some
       of her other children. To the best of my knowledge, she is actively being
       investigated by the Dallas Police Department, Medicaid Fraud Unit, the
       Department of Health and Human Services and CCS. Her other school aged
       children are still enrolled in JFK Elementary and Spence Middle School, but
       they have not attended class since November 9, 2005. I believe that
       AURORA ESPERANZA PEREZ will receive notice of this suit if the Original
       Petition in Suit Affecting Parent-Child Relationship and Temporary
       Restraining Order and Order Re-Setting HEARING FOR TEMPORARY
       ORDERS are delivered to her mother, FRANCES PEREZ.

That pertaining to Ismael stated in pertinent part:

       The residence address of ISMAEL ITURRALDE, Respondent, is unknown
       to me. To my knowledge he is actively avoiding service of process in this
       case. I believe that ISMAEL ITURRALDE will receive notice of this suit if the
       Original Petition in Suit Affecting Parent-Child Relationship and Temporary
       Restraining Order and Order Re-Setting HEARING FOR TEMPORARY
       ORDERS are delivered to his mother-in-law, FRANCES PEREZ.

As can be seen from these allegations, neither disclosed facts showing the number of

attempts at personal service made or the calendar dates on which service was attempted.

Thus, neither complied with Rule 106(b) and, therefore, were fatally defective. Mackie

Constr. Co. v. Carpet Services, 645 S.W.2d 594, 596 (Tex. App.–Eastland 1982, no writ)

(holding that a failure to disclose the number of attempts made, along with the calendar

dates on which service was attempted, was held to be fatal to the affidavit); see Travis

Builders, Inc. v. Graves, 583 S.W.2d 865, 867 (Tex. App.–Tyler 1979, no writ) (holding that

an affidavit reciting that the deputy constable had used "reasonable diligence" was


                                             4
defective because it failed to include the required factual statement disclosing the actual

diligence used to obtain personal service); Stylemark Construction, Inc. v. Spies, 612

S.W.2d 654, 656 (Tex. App.–Houston [14th Dist.] 1981, no writ) (holding that an affidavit

reciting that personal service had become difficult and impractical was lacking in specificity

detailing the efforts made to obtain service); Harrison v. Dallas Court Reporting College,

Inc., 589 S.W.2d 813, 815 (Tex. Civ. App.–Dallas 1979, no writ) (holding an affidavit

insufficient because it recited that "several attempts" at service were made without

disclosing the number and times of those attempts); Beach, Bait & Tackle, Inc., Store No.

2 v. Holt, 693 S.W.2d 684, 685-86 (Tex. App.–Houston [14th Dist.] 1985, no writ) (holding

that an affidavit stating that "service was impractical despite due diligence" was held

insufficient to support substituted service). So, the affidavits provided by Ray and Christina

failed to strictly comply with Rule 106 or satisfy the prerequisites to obtaining substituted

service. Thus, the attempt at substituted service was ineffective. Yet, that does not end

our inquiry for personal service was later effectuated on Aurora and Ismael on November

29, 2005, and December 6, 2005, respectively.

       Personal Service

       Having also been personally served, we must assess whether a new trial should

have been granted for other reasons. Aurora and Ismael say it should have. We agree.

       As previously mentioned, the trial court convened its final hearing and tried the

petition of Ray and Christina on December 20, 2005. The final order arising from that

hearing and awarding managerial custody to Ray and Christina was signed eight days

later, that is, on December 28th. Having been personally served on November 29th,



                                              5
Aurora’s answer was due on December 26th, or the Monday following expiration of 20 days

from service.2 TEX . R. CIV. P. 99 (b)(specifying that the defendant must appear by the

Monday following the expiration of 20 days from service); Proctor v. Green, 673 S.W.2d

390, 392 (Tex. App.–Houston [1st Dist.] 1984, no writ) (holding that when the last day of the

20-day period falls on a Monday, the defendant must appear by the following Monday).

In turn, Ismael’s appearance or answer date fell on January 2, 2006. As can be seen, the

trial court conducted the hearing and executed its final judgment before Ismael was

obligated to appear or answer. In doing so, it erred. See Conaway v. Lopez, 880 S.W.2d

448, 449 (Tex. App.–Austin 1994, writ ref’d) (stating that a default judgment rendered

before the defendant’s answer is due must be reversed).

        So too did it err in convening the December 20th trial before Aurora was required to

appear. Years ago our Supreme Court held that a trial court lacked discretion to hear and

determine a case in a defendant’s absence prior to the time the defendant was notified to

appear. Rogers v. Texas Commerce Bank, 755 S.W.2d 83, 84 (Tex. 1988). Admittedly,

Rogers concerned notification of trial under Texas Rule of Civil Procedure 245. Yet, its

rationale has no less application viz the appearance date mentioned in the citation and

mandated by Texas Rule of Civil Procedure 99(b). Just as the concept of due process

prohibits the convening of a trial before the time revealed to the litigants, Rogers v. Texas

Commerce Bank, 755 S.W.2d at 84, so too would it bar a court from holding trial before the

defendant is obligated to appear.3 In each instance, we must take care to provide the


        2
            The 20 days expired on Monday, Decem ber 19, 2005.

        3
        W e do not purport to extend this to cover fact situations other than those involving a defendant
whose deadline to appear has yet to expire and who has yet to appear.

                                                    6
parties their day in court. So, the trial court at bar had no authority to convene trial on

December 20th when Aurora was afforded, via citation, until December 26th to appear.

       Finally, we conclude that the errors were harmful. At the very least they denied the

appellants the opportunity to attack, on appeal, the substantive aspects of the trial court’s

decision. See TEX . R. APP. P. 44.1(a) (describing when error is considered harmful).

Accordingly, we reverse the final order and remand the cause to the trial court for further

proceedings.



                                                  Brian Quinn
                                                 Chief Justice




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