Opinion issued May 16, 2013




                                   In The

                              Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-12-00697-CV
                         ———————————
        MATTHEW JOHN DATE AND STRUCTURED CAPITAL
              INVESTMENTS, LLC, APPELLANTS
                                     V.
                    RSL FUNDING, LLC, APPELLEE


                  On Appeal from the 113th District Court
                           Harris County, Texas
                     Trial Court Cause No. 1156406A

                       MEMORANDUM OPINION

     In this restricted appeal from a default judgment, RSL sued two former

employees, Matthew Date and Shane McCallay, and their business, Structured

Capital Investments (“SCI”), for misappropriating RSL’s confidential and

proprietary information. RSL’s claims against Date and SCI were severed from
those against McCallay when Date and SCI failed to answer the suit. McCallay

continues to contest the merits of the suit in the trial court. Date and SCI

(collectively, “Date”) filed this restricted appeal from a default judgment,

contending that Date was not properly served with process. We hold that Date has

failed to show error on the face of the record negating the trial court’s recital that

he was properly served. We therefore affirm.

                                    Background

      The suit began with a temporary restraining order issued against SCI and

Date. RSL attempted personal service several times without success on Date at

4713 Linden Street in Bellaire, Date’s residence and SCI’s business address. The

process server left copies of a temporary restraining order, and a citation and

petition, at the residence, and averred that he verified with a woman doing yard

work that she was Date’s landlord and he lived at the Linden address, but he did

not serve Date personally. RSL subsequently moved for substituted service under

Texas Rule of Civil Procedure 106(b). The motion included correspondence from

legal counsel that he no longer represented Date, but that Date was aware of RSL’s

intent to file suit and seek a temporary restraining order. The trial court granted the

motion. The order authorized service by leaving a copy of the citation and petition

with “anyone over sixteen (16) years of age at [Date’s Residence] and mailing a

copy of same.” RSL mailed a copy of the citation and petition to Date the next day.


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After attempting to serve someone over the age of sixteen at the address several

times without success, RSL again moved for substituted service, requesting that the

trial court allow service by posting the citation and petition on the door of Date’s

residence.

      A process server served a person over the age of sixteen at the residence at

8:49 a.m. one morning, while, on the same day, the trial court granted RSL’s

second motion for substituted service. The amended order authorized service by

posting the citation and accompanying materials “on the front door” of Date’s

residence and by sending the same by first class mail. In addition to posting the

papers at Date’s address, RSL mailed copies to the address by first class mail.

      After receiving no answer to the underlying suit, RSL moved for entry of a

default judgment against Date. The trial court entered judgment, ordered Date to

pay damages of $385,670, and enjoined Date from disclosing RSL’s potential

confidential and proprietary information. The process server’s affidavit of service

and the trial court’s judgment reflect that Date was served with citation and a copy

of the plaintiff’s petition by substituted service “on December 1, 2011,” the date

the process server delivered the citation to someone over sixteen at the residence—

and the same day that the trial court amended its order.




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                                   Discussion

Standard of Review

      A no-answer default judgment cannot withstand a direct attack 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);

Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per curiam). In contrast to

the usual rule that presumptions will be made in support of a judgment, when

examining a default judgment, we accord no presumption of valid issuance,

service, or return of citation. Uvalde Country Club v. Martin Linen Supply Co., 690

S.W.2d 884, 885 (Tex. 1985) (per curiam). Failure to strictly comply with the rules

of civil procedure renders any attempted service of process invalid. Hubicki, 226

S.W.3d at 407; Wilson, 800 S.W.2d at 836.

      A party may file a restricted appeal from a proceeding in which he did not

participate or timely file any postjudgment motions by giving notice of appeal

within six months of the judgment. TEX. R. APP. P. 26.1(c), 30; Alexander v.

Lynda’s Boutique, 134 S.W.3d 845, 848–49 (Tex. 2004). To prevail in a restricted

appeal, like this one, the complaining party must show error on the face of the

record. Hubicki, 226 S.W.3d at 407. Error generally may not be inferred from

silence in the record; thus, absent affirmative proof of error, a restricted appeal

fails. See Alexander, 134 S.W.3d at 849–50 (holding silence in the record on


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restricted appeal about whether notice was provided in hearing to dismiss for want

of prosecution amounts to absence of proof of error).

Analysis

      Texas Rule of Civil Procedure 106(b) authorizes a court to order substituted

service of process upon a proper showing that a plaintiff has been unable to

personally serve a defendant. TEX. R. CIV. P. 106(b). When a court orders

substituted service under Rule 106(b), the order provides the only authority for the

substituted service. Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex.

App.—Fort Worth 2003, no pet.); Becker v. Russell, 765 S.W.2d 899, 900–01

(Tex. App.—Austin 1989, no writ). As a result, “any deviation from the trial

court’s order necessitates a reversal of the default judgment based on service.”

Vespa, 98 S.W.3d at 752; see Becker, 765 S.W.2d at 901.

      The return of service in this case complies with the trial court’s initial order

granting substituted service. See Vespa, 98 S.W.3d at 752. The return of service

reflects that the process server left the suit papers with “a suitable age person

(African American male, late 40’s to early 50’s, glasses)” at the address specified

in the order, and that he mailed a copy to the address, as required by the order.

Date does not contest that substituted service was completed in strict compliance

with the trial court’s first order. Instead, he contends that the initial order had been

vacated by the amended order before service was accomplished. See FKM P’ship


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v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008)

(holding amended pleading did not supplement, but superseded prior pleadings).

      Nothing in the record indicates that the trial court entered the amended order

before service was completed pursuant to the first order, nor that the amended

order voided service completed pursuant to the first order. The record does not

affirmatively show that process was served after the trial court signed the amended

order, rather than before he signed it. See Alexander, 134 S.W.3d at 849–50. The

final default judgment recites that Date was served by substituted service as

authorized by the trial court in its first order, indicating that the first order

remained operative at the time Date was served. Because service was obtained

pursuant to the trial court’s first order, and nothing in the record nor in the trial

court’s amended order indicates that service obtained pursuant to the earlier order

was void, Date has failed to show apparent error. Date has failed to show an

irregularity on the face of the record supporting reversal of the judgment. See

Hubicki, 226 S.W.3d at 407.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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