
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.
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.  	 
	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
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,
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
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


 

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) mailing to the defendant by registered or certified mail,
return receipt requested, a true copy of the citation with a copy of the petition attached thereto."
2. The 20 days expired on Monday, December 19, 2005.
3. We 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.


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NO. 07-11-0014-CV
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

MARCH
8, 2011
 

 
In re KOBELT MANUFACTURING, LTD. 
 

 
Memorandum
Opinion on Original Proceeding for Writ of Mandamus
 

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




            Pending before this court is the
Petition for Writ of Mandamus filed by Kobelt Manufacturing, Ltd. (Kobelt),
asking that we order the Hon. Kelly G. Moore, District Judge, 121st
Judicial District, to vacate its order denying Kobelts motion for leave to
designate Basic Energy as a responsible third party.  We deny the petition for the reason stated
below.
            It is beyond doubt that one seeking
extraordinary relief like that sought here must prove his entitlement
thereto.  This truism imposed upon Kobelt
the obligation of proving that the trial court clearly abused its discretion
when it denied the request to designate a responsible third party.  In re
Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (stating that one seeking a
writ of mandamus has the burden of establishing that the trial court clearly
abused its discretion).  Leave was sought
by Kobelt to so designate a third party on September 27, 2010.  However, Kobelt, via its attorney, signed a
Second Amended Agreed Scheduling Order wherein it expressly agreed to
setting June 11, 2010, as the applicable deadline by which to make such
designations.  And,
while statute says that a motion seeking leave to designate responsible third
parties must be filed on or before the 60th day before the trial
date, Tex. Civ. Prac. & Rem. Code Ann. §33.004(a)
(Vernon 2008), nothing in the proviso expressly prohibits the litigants from
agreeing to a different timeline, so long as the trial court also agrees.  Nor does Kobelt attempt to explain, in its
petition for relief here, why such deadlines cannot be the stuff of Rule 11
agreements.  See Tex. R.
Civ. P. 11 (authorizing litigants to execute
agreements touching upon pending suits).  So, Kobelt failed to establish that the trial
court abused its discretion by refusing to deviate from deadlines to which it
and all other litigants expressly agreed in writing.  
            The petition is denied. 
 
                                                                                    Brian
Quinn 
                                                                                    Chief
Justice

