Opinion issued November 1, 2012




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-11-01071-CV
                            ———————————
                         TARAS SOZANSKI, Appellant
                                         V.
                             LIDA PLESH, Appellee



                    On Appeal from the 310th District Court
                             Harris County, Texas
                       Trial Court Case No. 2011-13159



                                   OPINION

      Taras Sozanski appeals the trial court’s denial of his motion for new trial

following a default judgment grant of divorce and division of the marital estate. In

two issues, appellant argues that the trial court abused its discretion by denying his
motion for new trial because the evidence established that he had not been served

by citation.

      We reverse and remand for a new trial.

                                  Background

      Sozanski and Plesh were married in 2005. Plesh filed for divorce on March

3, 2011. Her petition identified an address in Humble as the address that Sozanski

could be served with process. The record indicates that the Humble address was

Plesh’s residence and that Sozanski was no longer living at that address. Instead,

in efforts to serve Sozanski with process, Plesh would contact the process server

whenever Sozanski was spotted at or near the Humble address. These efforts were

not successful.

      On June 27, Plesh filed a motion for alternative service. Included with the

motion was an affidavit from the process server. The process server identified his

unsuccessful attempts to serve Sozanski at the Humble address. All of these

attempts were in May.

      Also in May, the process server went to an address in Tomball “where Ms.

Plesh thought Mr. Sozanski may be staying.” Harris County Appraisal District

records, which were attached to the motion for alternative service, identified

Sozanski as the owner of the Tomball residence. The process server went to the

Tomball residence at 1:35 p.m. and found three vehicles parked in front of the


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house. Two of the vehicles were registered to Sozanski. One was registered to

Unity Housing Corp.        The process server knocked on the door, but no one

answered.

      The process server went to the Tomball residence the next day at 3:50 p.m.

One of Sozanski’s vehicles was not there. The other “was filled with junk in the

back seat and in the rear of the vehicle.” There was also a full trash can near the

front door of the residence.       The process server knocked again, but no one

answered.

      Plesh, in her motion for alternate service, asked to serve Sozanski with

process by taping the petition for divorce to the door of the Tomball residence.

The trial court granted the motion on July 14. The petition for divorce was taped

to the door of the Tomball residence on July 20.

      On August 14, M. Gauthier filed an affidavit in the case. In the affidavit,

Gauthier identified herself as the resident of the Tomball residence. She began

renting the residence in May 2011. She rents the property from Assisted Elder

Care Homes Corporation. She swore that she found the petition taped to her door

on July 20. She further asserted, “The petition was from Lida Plesh suing Taras

Sozanski. Neither of these parties is living at this address. I do not know how to

reach either party. . . . I am returning this petition with this affidavit to the court as

I have nowhere else to send these papers.”

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      Sozanski did not make an appearance in the case. On September 19, the trial

court rendered a default judgment, granting the divorce and dividing the marital

estate. The judgment asserted that Sozanksi, “although duly and properly cited,

did not appear and wholly made default.” The judgment awarded the Tomball

residence to Sozanski. It also assigned certain debts to Sozanski, including a

“promissory note executed by Taras Sozanski . . . payable to Southwest Alliance

Assets, Urban Development etal [sic], Assisted Elder Care Homes Corporation,

and Dilozir Terry TRE, and secured by deeds of trust on the real property awarded

in this decree to” Sozanksi. The judgment also assigned to Sozanski “all debt

owed to Assisted Elder Care Home Corp. or Rosie Stevenson” resulting from a

separate lawsuit. The judgment was approved as to form by Plesh’s attorney and

approved as to both form and substance by Plesh.

      On October 14, Sozanski filed a motion for new trial, asserting he was not

aware of the suit prior to the judgment, the Tomball residence was not his address,

and he did not receive the notice of the suit. Sozanski attached his affidavit to the

motion. In the affidavit, he asserted that he was not residing at the Tomball

residence at the time the alternate service was performed and that he did not

receive the process service. He also included a copy of his commercial driver’s

license, which indicates a different address as his residence. The address on his

license is on the same street as the Tomball residence, though a couple of houses

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down and across the street. The driver’s license was not issued, however, until

August 1, 2011—after the time that the alternative service was performed.

      The trial court denied the motion for new trial, and Sozaski filed a notice of

appeal.

                               Motion for New Trial

      In his two issues on appeal, Sozanski argues that the trial court abused its

discretion by denying his motion for new trial because the evidence established

that he had not been served by citation.

A.    Standard of Review

      A challenge to whether a party was properly served with process may be

raised in a motion for new trial. Fidelity & Guar. Ins. Co. v. Drewery Constr. Co.,

186 S.W.3d 571, 573–74 (Tex. 2006). Denial of a motion for new trial is reviewed

for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.

2010); see also Ward v. Naya, 488 S.W.2d 736, 737–38 (Tex. 1972) (holding issue

of lack of service in motion for new trial is question of fact to be determined by

trier of fact). A trial court abuses its discretion if it acts without reference to any

guiding rules or principles or fails to correctly analyze or apply the law. Celestine

v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 235 (Tex. 2010).




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B.    Analysis

      “An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated, under

the circumstances, to apprise interested parties of the pendency of the action and

afford them the opportunity to present their objections.” Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950). “Failure to give

notice violates the most rudimentary demands of due process law.” Peralta v.

Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899 (1988).

      A judgment cannot be rendered against a defendant unless he has been

properly served, accepted or waived service of process, or made an appearance.

TEX. R. CIV. P. 124. On direct appeal, there is no presumption of proper service.

Min v. Avila, 991 S.W.2d 495, 501 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Instead, the record must affirmatively show strict compliance with the rules of

service of process. See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690

S.W.2d 884, 885 (Tex. 1985) (holding failure to affirmatively show strict

compliance with rules of service renders attempted service of process invalid and

of no effect). In that event, the recitals in a process server’s return creates a

presumption that service was performed. Huffeldt v. Competition Drywall, Inc.,

750 S.W.2d 272, 273 (Tex. App.—Houston [14th Dist.] 1988, no writ); see also




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Min, 991 S.W.2d at 500–01 (holding return constitutes prima facie evidence of

successful service).

      The presumption of service can be rebutted with evidence in a motion for

new trial or in a bill of review.      See Huffeldt, 750 S.W.2d at 273 (holding

presumption of service can be rebutted); Fidelity & Guar. Ins. Co., 186 S.W.3d at

573–74 (holding parties can introduce evidence to show lack of actual service in

motion for new trial or bill of review). “[T]he question of lack of service is purely

a question of fact which must be determined by the trier of the facts.” Ward, 488

S.W.2d at 738. The party claiming ineffective service bears the burden of proof by

a preponderance of the evidence. Id.

      Critical to our analysis in this appeal is the principle that “the jurisdictional

power of the court derives from the fact of service and not the return itself.” Min,

991 S.W.2d at 501. Accordingly, if the record establishes that the plaintiff was not

served, the judgment is void. See PNS Stores, Inc. v. Rivera, No. 10-1028, 2012

WL 3800817, *4 (Tex. Aug. 31, 2012) (holding a judgment is void when record

“exposes such personal jurisdictional deficiencies as to violate due process” and

that complete failure of service violates due process).

      The record shows that the trial court granted the motion for alternate service

and that the process server filed the return with the district court. Sozanski does

not identify any errors in the order or the return, and we find none. Accordingly,

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the return created a presumption that service was successful. See Huffeldt, 750

S.W.2d at 273; Min, 991 S.W.2d at 500–01.

         Before the hearing on the motion for default judgment, however, this

presumption had already been rebutted. Gauthier filed an affidavit with the court

explaining that she was the resident of the Tomball home, that Sozanski did not

live at that address, and that she did not how to reach him. Without some proof of

successful service, the trial court lacked personal jurisdiction over Sozanski, and

any judgment rendered against him was void. See PNS Stores, 2012 WL 3800817,

at *4. Accordingly, when Sozanski filed his motion for new trial on the grounds

that he had not been served, the trial court abused its discretion by not granting a

new trial on the void judgment.

         We sustain Sozanski’s two issues.

                                     Conclusion

         We reverse the Final Decree of Divorce in its entirety and remand for a new

trial.




                                                 Laura Carter Higley
                                                 Justice

Panel consists of Justices Jennings, Higley, and Sharp.



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