
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-11-00520-CV


Khrysten Williams, Appellant

v.

Asset Acceptance LLC, Appellee




FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY
NO. C-1-CV-10-004680, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Khrysten Williams appeals a trial court order overruling her motion for new trial
seeking to set aside a no-answer default judgment awarding liquidated damages following substituted
service.  Williams asserts, in substance, that the trial court abused its discretion in refusing to set
aside the default judgment because (1) she never received actual notice that she had been served
with process; (2) there were fatal defects in the manner in which appellee, Asset Acceptance LLC,
obtained substituted service; and (3) the judgment awarded damages predicated on liability facts
that were never alleged in Asset Acceptance's pleadings.  Asset Acceptance has not filed a brief in
response.  Although we reject Williams's other complaints, we agree that the judgment erroneously
awarded damages predicated on an unpled liability theory.  We will vacate that portion of the award,
but otherwise affirm the judgment.




BACKGROUND
		On May 18, 2010, Asset Acceptance, as successor-in-interest to American Express
Bank, FSB, filed suit against Williams alleging that she had failed or refused to pay amounts owing
on an American Express credit card account she owned.  Asserting theories of breach of contract,
account stated, and open account, Asset Acceptance sought liquidated damages in the amount
of $29,610.25, which included an alleged principal amount of $18,366.76 and $11,243.46 (1) in
interest, plus pre- and post-judgment interest as allowed by the card agreement or Texas law, and
costs of suit. (2)
		After several failed attempts to personally serve Williams, Asset Acceptance
filed a motion for substituted service.  See Tex. R. Civ. P. 106(b).  In support of the motion,
Asset Acceptance attached the June 29, 2010 affidavit of William T. Hoagland, a private process
server.  Hoagland averred that he had made seven attempts to serve Williams at her home address
between June 3, 2010, and June 28, 2010, noting the specific dates, times, and results of each
attempt.  He added that he had verified on his initial attempt that Williams resided at the address and
that he had spoken with Williams's husband and left a delivery notice with him.  On each subsequent
attempt, Hoagland averred, he received no response at the front door and left a delivery notice
affixed there.  On his seventh and final visit, Hoagland indicated, he found the delivery notice from
his previous attempt still affixed to the door.
		On July 30, 2010, the trial court granted Asset Acceptance's motion for substituted
service, finding that service had been attempted at Williams's address and that substituted service
would be "reasonably effective to give [Williams] notice of this suit."  See id. R. 106(b)(2).  The
court authorized service by "delivering a true copy of the citation and petition attached to anyone
over 16 years of age at [Williams's address] OR attaching a true copy of the citation and petition
securely to the front door/entry way . . . ."  See id. R. 106(b).  The court further ordered that the
process server's return "be endorsed on or attached to the citation, stating when and how the citation
was served, and be signed by the [process server]," and that the process server "make due return in
accordance with the Texas Rules of Civil Procedure Rule 107."  See id. R. 107.
		On August 17, 2010, Asset Acceptance filed the returned citation, a copy of the
order for substituted service, and an affidavit from the process server who executed same,
Marcellus Griffin, prepared on the preceding day.  The affidavit reflected that Griffin had affixed the
citation and original petition to the main entry way at Williams's address, as had been authorized by
the trial court's order.
		On April 12, 2011, Asset Acceptance filed a motion for default judgment requesting
an award of $48,977.84, which included not only amounts owed on the American Express account,
as referenced in Asset Acceptance's petition, but also amounts owed on an additional credit card
account with "First USA/Chase Bank."  With the motion, Asset Acceptance submitted an affidavit
from an Asset Acceptance employee purporting to establish the amounts Williams owed on both
credit card accounts and a business-records affidavit attaching and proving up twenty-eight pages
of records documenting Asset Acceptance's purchase of the delinquent accounts, American Express
credit card statements in Williams's name, a cardmember's agreement, and what appear to be
printouts from Asset Acceptance's computer systems.  On May 3, 2011, the trial court signed a
final default judgment awarding Asset Acceptance $33,704.28 "as the total amount due on the
American Express account"; $15,273.56 "as the total amount due on the First USA/Chase Bank
account"; court costs, and post-judgment interest at the statutory rate.
		On May 13, 2011, Williams filed a motion for new trial seeking to set aside the
default judgment.  She complained, as she does here, of various asserted defects in service. 
However, during the hearing on her motion, Williams acknowledged that she lived at the address to
which Asset Acceptance's personal and substituted service attempts had been directed, that her
husband had received a delivery notice, and that she had ignored the notice and an instruction therein
that she call a phone number.  The trial court subsequently signed an order denying Williams's
motion.  This appeal ensued.

ANALYSIS 

		On appeal, Williams urges, in substance, that the trial court abused its discretion in
three ways when declining to set aside the default judgment against her.  First, she argues that she
never received a copy of the citation and original petition.  Second, she argues that the documents
used to obtain substituted service contained fatal errors.  Finally, she claims that the default judgment
imposes liability on her based on a theory not supported by Asset Acceptance's pleadings. (3)
		As a general rule, trial courts have broad discretion in ruling on motions for
new trial.  Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542
(Tex. App.--Austin 2004, no pet.).  We review a trial court's denial of a motion for new trial for
abuse of discretion.  Id. (citing Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987)).  The test for
abuse of discretion is whether the trial court acted arbitrarily or without reference to guiding
legal principles.  Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004).  A failure by a trial court to
analyze or apply the law correctly is an abuse of discretion.  McDaniel v. Yarbrough, 898 S.W.2d
251, 253 (Tex. 1995).
		Because of its greater reliability, "Texas law prefers personal service over
substitute service."  Vespa v. National Health Ins. Co., 98 S.W.3d 749, 751 (Tex. App.--Fort Worth
2003, no pet.); accord Mylonas v. Texas Commerce Bank-Westwood, 678 S.W.2d 519, 522
(Tex. App.--Houston [14th Dist.] 1984, no writ) ("substituted service is not the preferred method").
Texas allows substituted service, but only after personal service fails.  See State Farm Fire & Cas.
Co. v. Costley, 868 S.W.2d 298, 298-99 (Tex. 1993) (per curiam).  When substituted service occurs,
it must strictly comply with the order authorizing it because the order "is the sole basis of authority
authorizing substituted service."  Vespa, 98 S.W.3d at 752; Taylor v. State, 293 S.W.3d 913, 916
(Tex. App.--Austin 2009, no pet.).  Rule 106(b) governs substituted service:

	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) [personal service] or (a)(2) [registered or certified mail]
at the location named in such affidavit but has not been successful, the court may
authorize service
 
	(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(b).  When citation is made by an alternative method of service under rule 106(b),
proof of service must be made in the manner ordered by the court.  Id. R. 107.  Whether service
strictly complied with the rules is a question of law that we review de novo.  Furst v. Smith,
176 S.W.3d 864, 868-70 (Tex. App.--Houston [1st Dist.] 2005, no pet.).
		In her first issue, Williams argues the trial court abused its discretion in denying
her motion for new trial and setting aside the default judgment against her because she never
received actual notice of the lawsuit.  If a defendant did not receive suit papers, generally a
default judgment must be set aside.  Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d
571, 574 (Tex. 2006) (per curiam) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84
(1988) ("Failure to give notice violates the most rudimentary demands of due process of law.")).
Substituted service, however, is predicated on having a procedure that, though it may not give actual
notice, is expected to be "reasonably effective to give the defendant notice of the suit."  See Tex. R.
Civ. P. 106(b)(2).  "Due process requires only that the method of notice utilized be reasonably
calculated, under the circumstances, to apprise an interested party of the pendency of the action and
afford the party the opportunity to present objections."  Walker v. Brodhead, 828 S.W.2d 278, 280
(Tex. App.--Austin 1992, writ denied) (citing Peralta, 485 U.S. at 84-85).  The Supreme Court of
Texas has held that actual notice is not only unnecessary, but is in fact, contrary to rule 106(b)'s
underlying rationale:


	Substituted service exists to allow plaintiffs to effect service where proof of actual
notice under Rule 106(a) is impractical.  Under Rule 106(b), a court may authorize
substituted service only after a plaintiff has unsuccessfully tried to effect personal
service or service by certified mail, return receipt requested, as required by
Rule 106(a).  A plaintiff may resort to substituted service only upon the failure of
these methods which provide proof of actual notice.  Thus, to require proof of actual
notice upon substituted service would frustrate Rule 106(b)'s purpose of providing
alternate methods for plaintiffs . . . .  In fact, the rule itself contemplates other
procedures which will not necessarily furnish evidence of actual notice.  The rule
allows service by leaving a copy of the citation and petition with someone over the
age of sixteen at the defendant's place of abode as stated in the affidavit.  Tex. R.
Civ. P. 106(b)(1).  This method of substituted service provides no evidence in the
record of when defendant received actual notice, but rather only provides proof of
when plaintiff actually left the copies with someone in compliance with the rule.


Costley, 868 S.W.2d at 298-99 (citations omitted).
		An affidavit attached to the return of service reflects that substituted service was
accomplished on Williams under rule 106 by affixing a copy of the citation and petition to the
residence at the address specified in the order for substituted service.  Although Williams claims that
she did not receive actual notice of the citation and petition, and the affidavit does not purport to
establish that she did, it is nonetheless sufficient proof that substituted service on Williams was
completed in accordance with the trial court's order.  As further support, Williams verified at the
hearing on her motion that she resided at the address specified in the order for substituted service.
Under the circumstances, we conclude the method of notice was reasonably calculated to apprise
Williams of the pendency of the action and afford her the opportunity to present objections.  See
Brodhead, 828 S.W.2d at 280 (substituted service by leaving copy of citation with person over
sixteen years of age at defendants' homestead ranch satisfied due process despite defendants' lack
of actual notice.).  Thus, the trial court did not abuse its discretion in declining to set aside the default
judgment on this basis.
		Williams also contends that Asset Acceptance's motion for substituted service
and affidavit in support of the motion did not comply with rule 106.  The supreme court has "long
demanded strict compliance with applicable [service] requirements when a defendant attacks a
default judgment."  Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007) (per curiam).  Even proof
that the defendant had actual notice will not cure defective service.  Id.
		Williams emphasizes documents she purportedly obtained from the
Travis County Clerk's website.  While searching the website, Williams claims she discovered
documents supposedly filed with the trial court on August 17, 2010 entitled "Citation
RET:CV CITATION RET UNSERVED," which, in addition to the citation, order for substituted
service, and affidavit of substituted service in her own case, included a citation, an affidavit entitled
"Declaration of Not Found," and a petition, all in the unrelated matter of Asset Acceptance LLC
v. Steven K. Buck, cause number C-1-CV-10-004677.  She also notes that the name and signature
of the process server in the Buck documents differs from the name and signature of the process server
used in her case.  She attached these documents as Exhibit A to her motion. (4)  While we are unclear
as to how or why documents relating to another cause number were included among Williams's
documents on the County Clerk's website, this clerical error has no bearing on the outcome of the
case.  Williams did not dispute the fact that the necessary documents were actually on file with the
court clerk.  The clerk's official records demonstrate conclusively that they were.  The presence of
additional, unrelated documents on the County Clerk's website, while curious, does not alter that
conclusion.  The trial court did not abuse its discretion in refusing to set aside the default judgment
on this basis.
		Next, Williams challenges statements in the affidavit that Asset Acceptance submitted
in connection with its motion for substituted service.  Under rule 106, a motion seeking substituted
service must include an affidavit stating "the location of the defendant's 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 . . . at the location named in such affidavit but has not
been successful."  Tex. R. Civ. P. 106(b).  Substituted service may not properly issue on a motion
supported by an affidavit that is conclusory or otherwise insufficient.  Wilson v. Dunn, 800 S.W.2d
833, 836 (Tex. 1990).  The disputed affidavit contains the process server's name and signature, a
description of the items he attempted to deliver to Williams--the citation, original petition, and
discovery requests--and an account of his various attempts including the dates, times, and results
of each of his seven visits.
		Williams challenges several portions of the affidavit.  She states, "[a] piece of paper
with a phone number on it was left with [her husband at her address] on 06/03/2010, but no
description of the matter, or in who's [sic] name the piece of paper was given, and no copy of the
petition or citation was left with" her husband.  Under the heading for June 3, 2010, the affidavit
states, "THE SUBJECT DOES RESIDE AT THIS ADDRESS BUT IS NOT HOME AT THIS
TIME.  LEFT DELIVERY NOTICE WITH [Williams's husband.]"  The affidavit does not assert
that a copy of the petition or citation was left with Williams's husband, (5) nor does it describe
with particularity what was included in the delivery notice.  Williams complains the notice did not
describe the matter sufficiently, but such particularity is not required under rule 106; indeed, rule 106
does not require the serving party to leave notice at all, rather, the affidavit must only state
"specifically the facts showing that service has been attempted" at the location described in the
affidavit in the traditional manners of service.  Tex. R. Civ. P. 106(b).  Asset Acceptance's affidavit
satisfies these requirements.
		Similarly, Williams states, "[o]ne other 'post-it-note' type sticker was left at [her
address], but again, no description of the matter was given and no copy of the petition or citation was
left."  This affidavit was made prior to the court's entry of an order allowing substituted service.  It
would have been improper for the process server to leave a copy of the petition or citation affixed
to Williams's door at this time.  We have already explained the level of detail in the notice is
irrelevant.  Further, any confusion Williams had concerning the notice could have been cured by
calling the number on it, which she admits she never bothered to do.  Williams's complaints do not
refute any statement contained within the affidavit or demonstrate any error. 
		Williams also notes one of the delivery entries states, "THIS IS AN APARTMENT
COMPLEX AND COULD NOT PROVIDE A LICENSE PLATE."  Williams asserts the property
at her address is a "free standing, single family dwelling."  This apparent contradiction, she contends,
constitutes error sufficient to set aside the default judgment.  In contrast to the disputed entry,
the affidavit's first entry states, "THE SUBJECT DOES RESIDE AT THIS ADDRESS BUT IS
NOT HOME AT THIS TIME.  LEFT DELIVERY NOTICE WITH [Williams's husband.]  ONE
VEHICLE IN DRIVEWAY," and then provides license plate information for the vehicle.  Despite
this potential inconsistency, we conclude the affidavit is sufficient in light of Williams's own
statements corroborating the fact that she lived at the listed address, coupled with her
acknowledgment that service was attempted, and notice left, at the proper address on at least
two separate occasions.  After considering Williams's challenges, we conclude the affidavit was
sufficient to support the order for substituted service.
		In her third issue, Williams argues the trial court improperly awarded damages based
on a theory of liability Asset Acceptance did not allege in its petition.  Asset Acceptance pled in its
original petition that it sought "liquidated damages in the amount of $29,610.25, plus pre- and
postjudgment interest as allowed by the contract and/or Texas law" for debt incurred in connection
with an American Express credit card account.  In its motion for default judgment, Asset Acceptance
requested money damages for the amount owed on the American Express account in the amount of
$33,704.28, as well as money owed on a First USA/Chase account in the amount of $15,273.56. 
This was the first reference to the First USA/Chase account or the amounts allegedly owed
thereunder in these proceedings.  In its final default judgment, the trial court awarded the amounts
requested under both the American Express account and the First USA/Chase accounts.
		A party's pleadings must describe in sufficient detail the party's cause of action so
as to fairly notify the opposing party.  C & H Transp. Co., Inc. v. Wright, 396 S.W.2d 443, 446
(Tex. Civ. App.--Tyler 1965, writ ref'd n.r.e.).  To this end, a default judgment must be in
accord with the pleadings in the record.  Mullen v. Roberts, 423 S.W.2d 576, 579 (Tex. 1968).  A
default judgment not supported by the pleadings is fundamentally erroneous.  Caruso v. Krieger,
698 S.W.2d 760, 762 (Tex. App.--Austin 1985, no writ).  Absent fair notice, a party who fails to
appear at trial will not be held to have tried an unpled cause of action by implied consent.  Stoner
v. Thompson, 578 S.W.2d 679, 685 (Tex. 1979).
		Asset Acceptance did not plead entitlement to money damages based on the
First USA/Chase account.  It first asserted Williams's liability for that account as part of its motion
for default judgment.  Accordingly, it was error for the trial court to hold Williams liable and impose
damages based on an account not included in Asset Acceptance's pleadings.  See HSBC Bank, N.A.
v. Khyber Holdings, L.L.C., No. 05-10-00220-CV, 2011 WL 874154, at *2 (Tex. App.--Dallas
Mar. 15, 2011, no pet.) (mem. op.) (reversing default judgment invalidating both deed of trust and
substitute trustee's deed when petition did "not contain any allegations regarding the substitute
trustee's deed"); Caruso, 698 S.W.2d at 762 (reversing default judgment awarding damages
when pleadings requested only specific performance); Stoner, 578 S.W.2d at 683-84 (no fair
notice that court might award money damages when pleadings did not mention plaintiff "sustained
money damages and contained no prayer therefore").  Accordingly, we vacate that portion of the
final default judgment awarding Asset Acceptance amounts due on the First USA/Chase Bank
account.

CONCLUSION
		We overrule Williams's complaints concerning notice and compliance with
rule 106 but sustain the complaint regarding the First USA/Chase account damages.  We vacate
the final judgment award as to the unpled First USA/Chase Account, but otherwise affirm the
final judgment.


						__________________________________________
						Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Affirmed in part; Vacated in part
Filed:   July 20, 2012
1.   We note an apparent discrepancy of three cents in Asset Acceptance's calculation--adding
the alleged principal amount of $18,366.76 to the alleged interest amount of $11,243.46 yields a
total of $29,610.22 rather than the $29,610.25 it alleges.
2.   Along with its original petition, Asset Acceptance attached requests for disclosure, requests
for admissions, and requests for production.
3.   Williams has represented herself both on appeal and below.  We have attempted to fairly
construe the legal substance of Williams's complaints without raising arguments for her.  See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-86 (Tex. 1978).
4.   All of the documents within Exhibit A are watermarked "unofficial."
5.   Indeed, such attempt to serve Williams through her husband would have been improper
prior to entry of the order for substituted service.  "When a Texas statute requires personal service
on a party, service on the spouse will not suffice."  Colson v. Thunderbird Bldg. Materials,
589 S.W.2d 836, 841 (Tex. Civ. App.--Amarillo 1979, writ ref'd n.r.e.).
