No Citation in the Court's file, no Valid Service based merely on Affidavit of Process Server, no Valid Default Judgment

Garcia v. Ennis, No. 02-17-00282-CV (Tex.App.- Fort Worth, Jun. 28, 2018) (reversing trial court's denial of bill-of-review relief against default judgment for failure to strictly comply with rules of civil procedure governing service of process and remanding for further proceedings on the merits of the underlying claim).

In 2011 the Texas Supreme Court changed the rules governing the processing of citations and proof of service to require the clerk to place a copy of the citation in the case file and permit proof of service (return of service) by affidavit of a private process server (or declaration under penalties of perjury in lieu of affidavit) as opposed to return of the executed citation itself, which was previously required to be on file for ten days before a default judgment could be granted. Construing the interplay of the rules governing citation and proof of service as amended, the Fort Worth Court of Appeals recently held in an appeal from a bill-of-review proceeding (the functional equivalent of a FRCP rule 60 motion for relief from a judgment that is no longer appealable in Texas state courts) that absence of the citation in the file was a fatal defect, that therefore the trial court had not acquired personal jurisdiction over the defendant, and that the default judgment entered against her was therefore invalid. The court reversed the trial court's denial of bill-of-review relief, vacated the default judgment, and remanded the case to the trial court for trial on the merits of the underlying claim. It was a personal injury case, but that does not appear to limit the scope of the ruling on the validity of service of process on the defendant. 

LETICIA C. GARCIA, Appellant,
v.
PRESTON R. ENNIS, Appellee.

No. 02-17-00282-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: June 28, 2018 

Appeal from County Court AT Law NO. 1 of Tarrant County Trial Court NO. 2014-002225-1-A.

PANEL: MEIER, PITTMAN, and BIRDWELL, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

Appellant Leticia C. Garcia filed a petition for bill of review to set aside a default judgment in favor of Appellee Preston R. Ennis and, later, a motion for summary judgment, in which she argued that as a matter of law, Ennis had failed to serve her in strict compliance with the rules governing service of process, rendering the default judgment void for want of personal jurisdiction. The trial court denied the motion and included finality language in its order. Garcia appeals. Because the record fails to show strict compliance with the rules of civil procedure, we will reverse.

II. BACKGROUND

Ennis sued Garcia after the two were involved in an automobile collision.^[1] A private process server signed a return of service swearing that on May 30, 2014, he personally served Garcia with both the original petition and a citation. The return was filed with the court, unattached to the citation. See Tex. R. Civ. P. 107(a) ("The return may, but need not, be endorsed on or attached to the citation.").

In November 2015, after Garcia had failed to file an answer or to make an appearance, the trial court signed a default judgment in favor of Ennis, awarding him damages in the amount of $171,852.57. Although rule of civil procedure 99(a) required the court clerk to retain a copy of the citation in the court's file, see Tex. R. Civ. P. 99(a), when the trial court signed the default judgment, its file did not contain a copy of the citation.

In August 2016, Garcia filed her original petition for bill of review. She pleaded that the default judgment should be set aside and a new trial ordered because "there [was] no copy of the citation issued to Garcia in the Court's file, even though Rule 99(a) explicitly required same. Absent a copy of the very citation allegedly served on Garcia and giving the trial court personal jurisdiction over her, the face of the record fails to affirmatively show strict compliance with the requirements of Rules 99 or 107." On October 3, 2016, just ten days before filing his answer, Ennis filed a copy of the citation that was served on Garcia back in May 2014 but that was missing from the court's file when it signed the default judgment.

Garcia later moved for summary judgment on the same ground that she pleaded in her petition—the default judgment was void because the court's file did not contain a copy of the citation that was issued to Garcia. Ennis responded that summary judgment was improper (1) because he had fully complied with amended rule of civil procedure 107, which permits a trial court to grant a default judgment so long as "proof of service as provided by this rule" has been on file for ten days and the return of service has been on file for the requisite period of time; (2) because the clerk's clerical error in not retaining a copy of the citation as required by rule 99(a) did not otherwise render the service improper; and (3) because the record as a whole, including the late-filed citation, showed that Garcia was properly served with citation. The trial court denied Garcia's motion and stated that its order was "a final judgment, disposing of all parties and all claims, and is appealable."^[2]

III. GARCIA ENTITLED TO SUMMARY JUDGMENT

Garcia identifies four issues, but they essentially restate the same ground four different ways: The trial court erred by denying her motion for summary judgment because, there being no copy of the citation issued to her in the court's file when it granted the default judgment, the record fails to affirmatively show strict compliance with the rules of civil procedure—in particular, rule 99(a)— rendering the default judgment void. In addition to (and as a direct result of) the complete absence of the citation contrary to rule 99(a), Garcia notes that the trial court had no way to confirm whether the citation complied with the citation form requirements contained in rule of civil procedure 99(b), which the omission of any one would render citation defective.^[3]

Ennis responds that the record shows strict compliance with the rules of civil procedure. Like he argued in his summary-judgment response, Ennis contends that rule of civil procedure 99 is irrelevant, that rule 107 "is the only Texas Civil Procedure Rule . . . that provides rules for this issue directly," and that the return, which was on file when the trial court granted the default judgment, met all of rule 107's requirements. Ennis stresses that it was the clerk's fault, not his, that the court's file did not contain a copy of the citation when the default judgment was granted, and he posits that the trial court could have relied upon the late-filed citation to confirm strict compliance with the rules in the original suit because "[r]ule 99(a) has absolutely no time limit or duration period regarding when or how long the citation needs to be on file."

A. Standard of Review

We review a traditional summary judgment de novo. Valence Operating Co. v. Dorsett,164 S.W.3d 656, 661 (Tex. 2005). The issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848.

B. Bill of Review and Strict Compliance

A bill of review is a direct attack on a judgment that is no longer appealable or subject to a motion for new trial. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003),cert. denied, 541 U.S. 1030 (2004). Filed in the same court that rendered the original judgment, a bill-of-review plaintiff must ordinarily plead and prove (1) a meritorious claim or defense to the judgment, (2) that the plaintiff was prevented from making by the fraud, accident, or wrongful act of her opponent, and (3) unmixed with any fault or negligence on the plaintiff's own part. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). But when the plaintiff claims a due process violation for no service, like Garcia does here, she is relieved of proving the first two elements, and the third element is conclusively established if the plaintiff can prove that service of process was invalid. Id.; Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998).

It is axiomatic that a trial court must have personal jurisdiction over a party to issue a binding judgment. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). In a direct attack on a default judgment, there are no presumptions in favor of valid service of process. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). Strict compliance with the rules governing issuance, service, and return of citation is mandatory. Id. Failure to affirmatively show strict compliance with the rules of civil procedure renders the attempted service of process invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); see In re Z.J.W., 185 S.W.3d 905, 908 (Tex. App.-Tyler 2006, no pet.) ("We iterate that `strict compliance' means literal compliance with the rules."); Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.-Texarkana 2004, no pet.) ("Virtually any deviation from the statutory requisites for service of process will destroy a default judgment."). Stated otherwise, absent an appearance or waiver, the trial court does not have personal jurisdiction to enter the default judgment against the defendant unless the record affirmatively shows, "at the time the default judgment is entered," proper service of citation on the defendant. Marrot Commc'ns, Inc. v. Town & Country P'ship, 227 S.W.3d 372, 376 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).

C. No Citation, No Strict Compliance

In December 2011, the supreme court amended rule of civil procedure 107(h) to remove the requirement that the citation be on file for ten days before a default judgment is granted. Misc. Docket No. 11-9250, 75 Tex. B.J. 56, 57 (1990, amended 2012). Amended rule 107(h) states, "No default judgment shall be granted in any cause until proof of service as provided by this rule . . . shall have been on file with the clerk of the court ten days. . . ." Tex. R. Civ. P. 107(h). Seizing upon this change, Ennis asserts that "Rule 107 was specifically altered and changed in 2012 to leave off the requirement that a `citation' be on file prior to the default judgment being rendered." Having otherwise complied with the requirements of rule 107, which he contends applies to the exclusion of all other rules because Garcia complains of only "improper service," Ennis reasons that he strictly complied with the rules governing service. 

Garcia's premise—that the trial court may grant a default judgment without a copy of the citation on file, so long as the plaintiff otherwise complies with rule 107—misconstrues the 2011 amendment to rule 107(h).

When construing rules of civil procedure, we apply the same rules of construction that we use when interpreting statutes. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007). When construing statutes, it is well established that we must consider the words in context, not in isolation. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556,XXXXXXXXX (Tex. 2014); State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A court should not assign a meaning to a statutory provision that would be inconsistent with other provisions of the same act, even though it might be susceptible to such a construction standing alone. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

In the very same order that it amended rule 107(h), the supreme court amended rule 107(a) to remove the requirement that the return be endorsed on or attached to the citation, now providing that "[t]he return may, but need not, be endorsed on or attached to the citation." Misc. Docket No. 11-9250, 75 Tex. B.J. 56, 57 (emphasis added). This change divorced the citation from the return of service, but the supreme court ensured that the citation would nevertheless make its way into the court's file by also amending rule 99(a) to require that "[t]he clerk must retain a copy of the citation in the court's file." Id. at 57 (emphasis added). Construed in context, instead of in isolation, the change to rule 107(h) doing away with the requirement that the citation be on file for ten days before the trial court grants a default judgment was necessary to align rule 107(h) with the amendments to rules 107(a) and 99(a) altering the manner in which the citation becomes a part of the trial court's file. Contrary to Ennis's implication then, that the citation no longer need be on file for ten days before a default judgment is granted, does not mean that the citation need not be on file at all before a default judgment is granted. 

This ties in to the next point. "Strict compliance" means compliance with all of the rules of civil procedure governing service of process, not just with one of them. See Primate Constr., 884 S.W.2d at 152. Rule 99(a) is no less important to achieving strict compliance with the rules than is rule 107. Strict compliance with rule 99(a) cannot be shown when the court's file does not contain a copy of the citation.

A missing citation also raises other problems. Before granting a default judgment, and with no copy of the citation on file, the trial court could not have confirmed that the citation contained the information required by rule 99(b). See Tex. R. Civ. P. 99(b). Courts have concluded that strict compliance was not shown when the citation failed to include the information required by rule 99(b). See, e.g., Montgomery v. Hitchcock, No. 03-14-00643-CV, 2016 WL 3068219, at *2 (Tex. App.-Austin May 25, 2016, no pet.) (mem. op.) (rule 99(b)(4)); Midstate Envtl. Servs., LP v. Peterson, 435 S.W.3d 287, 290 (Tex. App.-Waco 2014, no pet.) (rules 99(b)(2) and (8)); Mansell v. Ins. Co. of the West,203 S.W.3d 499, 501 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (rule 99(b)(4)). It follows that if strict compliance cannot be shown when just one of the items required by rule 99(b) is missing, then the complete absence of the entire citation—and the inability to confirm that the citation contains any of the information required by rule 99(b)—surely renders service invalid as well.

Ennis argues that the burden shifted to the clerk to file the citation after he fulfilled his responsibility to serve Garcia, but the supreme court clarified years ago that the ultimate responsibility for ensuring that service is properly reflected in the record lies with the party requesting service. See Primate Constr., 884 S.W.2d at 153; see also Nelson v. Nelson, No. 14-16-00602-CV, 2017 WL 2484378, at *3 (Tex. App.-Houston [14th Dist.] June 8, 2017, no pet.) (mem. op.) (rejecting argument that clerk was at fault for defective service). Confirming that service is properly reflected in the record includes confirming that the citation is on file when the trial court grants a default judgment.

We also disagree with Ennis that the trial court could have considered the late-filed citation in determining whether Ennis strictly complied with the rules of civil procedure. Houston's First Court of Appeals considered a similar issue in Marrot Communications.There, Marrot argued that the trial court had erred by denying its motion for new trial because the record contained no evidence that Town & Country had used reasonable diligence in attempting to serve Marrot's registered agent before substituting service on the Secretary of State. Marrot Commc'ns, 227 S.W.3d at 376 (citing Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 34 (Tex. App.-Houston [1st Dist.] 2003, no pet.)(explaining that plaintiff must establish, before resorting to substitute service on Secretary of State, that it used reasonable diligence in seeking service on registered agent of corporation)). Town & Country countered that a post-judgment affidavit that it had filed in response to Marrot's motion for new trial demonstrated the required diligence, but Marrot responded that the affidavit could not be considered because it was not part of the record when the default judgment was entered. Id. at 377.

The court of appeals agreed with Marrot. Id. at 378201279. It acknowledged that unlike in a restricted appeal, in which review is limited to error apparent on the face of the record, when a default judgment is attacked by a motion for new trial or by a bill of review, the parties may introduce evidence in the form of affidavits, depositions, testimony, and exhibits to address the Craddock^[4] or bill-of-review elements, i.e, "to explain what happened." Id. at 379 (quoting Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006)). 

However, the critical issue in the appeal was not why Marrot did not appear but whether service upon Marrot was defective, a matter that could only be resolved by reviewing the record as it existed at the time the default judgment was entered. Id. ("As noted above, unless the record affirmatively shows `at the time the default judgment is entered' an appearance by the defendant, proper service of citation, or a written memorandum of waiver, a trial court does not have in personam jurisdiction to enter the default judgment."). The court thus concluded, "Because [the] affidavit was not part of the record until after the trial court signed the default judgment, we cannot consider [it] as proper evidence of reasonable diligence prior to seeking substituted service on the Secretary of State." Id. at 378.

The distinction drawn by the First Court makes perfect sense. There is a difference between submitting evidence for or against the bill-of-review elements to show why a bill of review should or should not be granted and submitting evidence to fill a gap that existed in the record when the trial court granted the default judgment in an effort to show that the trial court properly granted the default judgment. See CSR Ltd., 925 S.W.2d at 594 ("A court must possess both subject matter jurisdiction over a case and personal jurisdiction over a party to issue a binding appeal."). Ennis's late-filed citation falls into the latter category, and the trial court could not have considered it in ruling on the motion for summary judgment. See Marrot Commc'ns, 227 S.W.3d at 378-79.

Finally, impliedly advocating for a type of harmless-error approach, Ennis emphasizes that Garcia has never affirmatively denied being served, but this is not dispositive to the inquiry. "Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him." Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).

Compliance with one rule of civil procedure does not guarantee compliance with all of them, and in considering the record as it existed when it granted the default judgment—as it must under these circumstances—the trial court could not have relied in part upon a citation that was not on file until after it granted the default judgment. Garcia met her summary-judgment burden to show that she was not served in strict compliance with the rules of civil procedure as a matter of law. We sustain what we construe to be her only issue.^[5]

IV. CONCLUSION

Having sustained Garcia's issue, we reverse the trial court court's order denying her motion for summary judgment, render judgment granting Garcia's petition for bill of review and setting aside the default judgment, and remand this cause to the trial court for further proceedings. See Macs v. Lenahan, No. 04-17-00033-CV, 2018 WL 280469, at *3 (Tex. App.-San Antonio Jan. 3, 2018, no pet.) (mem. op.) (ordering similarly).

[1] Ennis also sued Jose Meza, the alleged owner of the vehicle that Garcia was driving at the time of the incident. Ennis later nonsuited his claims against Meza.

[2] Garcia does not challenge the order's language making the judgment final.

[3] Rule 99(b) states,

Form. The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under seal of court, (3) contain name and location of the court, (4) show date of filing of the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation, (11) contain address of the clerk, and (12) shall notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition. The citation shall direct the defendant to file a written answer to the plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c of this rule.

Tex. R. Civ. P. 99(b).

[4] See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392, 133 S.W.2d 124, 126 (1939).

[5] In the remainder of his brief, Ennis assumes that Garcia was properly served and proceeds to conduct both a Craddock and a full bill-of-review analysis, but having sustained Garcia's issue, we do not reach these arguments. See Tex. R. App. P. 47.1; Craddock, 133 S.W.2d at 126. 

BELOW: TEXT OF TRCP RULE 99 AS AMENDED 

RULE 99. ISSUANCE AND FORM OF CITATION
a. Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue
a citation and deliver the citation as directed by the requesting party. The party requesting
citation shall be responsible for obtaining service of the citation and a copy of the petition.
Upon request, separate or additional citations shall be issued by the clerk. The clerk must
retain a copy of the citation in the court's file.
b. Form. The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk
under seal of court, (3) contain name and location of the court, (4) show date of filing of
the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of
parties, (8) be directed to the defendant, (9) show the name and address of attorney for
plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules
require the defendant to file a written answer with the clerk who issued citation, (11)
contain address of the clerk, and (12) shall notify the defendant that in case of failure of
defendant to file and answer, judgment by default may be rendered for the relief demanded
in the petition. The citation shall direct the defendant to file a written answer to the
plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty
days after the date of service thereof. The requirement of subsections 10 and 12 of this
section shall be in the form set forth in section c of this rule.
c. Notice. The citation shall include the following notice to the defendant: "You have been
sued. You may employ an attorney. If you or your attorney do not file a written answer
with the clerk who issued this citation by 10:00 a.m. on the Monday next following the
expiration of twenty days after you were served this citation and petition, a default
judgment may be taken against you."
d. Copies. The party filing any pleading upon which citation is to be issued and served shall
furnish the clerk with a sufficient number of copies thereof for use in serving the parties to
be served, and when copies are so furnished the clerk shall make no charge for the copies.

BELOW: TEXT OF TRCP RULE 107 AS AMENDED

RULE 107. RETURN OF SERVICE
(a) The officer or authorized person executing the citation must complete a return of service.
The return may, but need not, be endorsed on or attached to the citation.
(b) The return, together with any documents to which it is attached, must include the following
information:
(1) the cause number and case name;
(2) the court in which the case is filed;
(3) a description of what was served;
(4) the date and time the process was received for service;
(5) the person or entity served;
(6) the address served;
(7) the date of service or attempted service;
(8) the manner of delivery of service or attempted service;
(9) the name of the person who served or attempted to serve the process;
(10) if the person named in (9) is a process server certified under order of the Supreme
Court, his or her identification number and the expiration date of his or her
certification; and
(11) any other information required by rule or law.
(c) When the citation was served by registered or certified mail as authorized by Rule 106, the
return by the officer or authorized person must also contain the return receipt with the
addressee's signature.
(d) When the officer or authorized person has not served the citation, the return shall show the
diligence used by the officer or authorized person to execute the same and the cause of
failure to execute it, and where the defendant is to be found, if ascertainable.
(e) The officer or authorized person who serves or attempts to serve a citation must sign the
return. If the return is signed by a person other than a sheriff, constable, or the clerk of
the court, the return must either be verified or be signed under penalty of perjury. A return
signed under penalty of perjury must contain the statement below in substantially the
following form:
AMy name is ____________________, my date of birth is _______________, and
 (First) (Middle) (Last)
my address is ________________,_____________,____________, ___________, and
 (Street) (City) (State) (Zip Code)
____________. I declare under penalty of perjury that the foregoing is true and correct.
 (Country)
Executed in ___________County, State of __________, on the _____ day of ______,
 (Month)
______.
Year
___________________________________________.
 (Declarant)
(f) Where citation is executed by an alternative method as authorized by Rule 106, proof of
service shall be made in the manner ordered by the court.
(g) The return and any document to which it is attached must be filed with the court and may
be filed electronically or by facsimile, if those methods of filing are available.
(h) No default judgment shall be granted in any cause until proof of service as provided by this
rule or by Rules 108 or 108a, or as ordered by the court in the event citation is executed by
an alternative method under Rule 106, shall have been on file with the clerk of the court
ten days, exclusive of the day of filing and the day of judgment

URL for all rules in pdf (325 pages): --> Texas Rules of Civil Procedure (Texas Judiciary Website)

What is a Citation in a lawsuit on a debt in Texas?

"GREETINGS" of the unwelcome kind: Being served with a lawsuit papers: Citation and Petition 

The Meaning of the word Citation in the debt-collection context 

The word CITATION has other meanings, too, but in the debt collection context, the citation is the document that gives formal notice to the defendant that he or she has been sued. In federal court, and in other states, it is called summons, but debt suits are not filed in federal court.

TERMINOLOGY: TEXAS VS. OTHER FEDERAL COURT AND OTHER STATES

In Texas the word summons is used to, but most commonly for a call to jury duty. The papers served with the citation are also denominated differently. In Texas state courts they are called PETITION, and ORIGINAL PETITION, which in federal courts (including federal courts in Texas) they opening salvo in a civil action takes the form a COMPLAINT, served with SUMMONS, or a request to waive issuance and service of summons.

THE CITATION IN A CIVIL CASE IN TEXAS 

The citation is a document separate from the pleading itself, and is prepared and issued by the clerk of the court, not by the attorney for the plaintiff. It will tell the Defendant about the deadline to answer the lawsuit and contain a warning about the prospect of a default judgment if the Defendant fails to answer. The plaintiff's petition will be attached. It will normally be titled "Plaintiff's Original Petition", or some variant thereof. Additionally, discovery requests may also be attached, or even included withing the body of the petition. -- > Embedded discovery requests. If discovery in served with the petition, the titled of the petition will typically refers to it, e.g.: Plaintiff's Original Petition and Requests for Admissions.

There are very specific requirements regarding the contents of the citation, the manner of service upon the defendant, and the certification by the process server or officer that such was done. The latter is called the "return of service". If the defendant could not found, the citation will be returned also, with information on the unsucessful service attempts. The fact that service of process was not successful may be noted on the docket with the strange but descriptive word "NONSERVICE" or "UNSERVICE" or "NONEXECUTION".

The plaintiff may then request reissuance of citation (alias citation) to try again, perhaps at a new address if the original one was incorrect or a work address. An order for substituted service under Rule 106(b) may also be requested.

ALTERNATIVES TO SERVICE OF CITATION IN PERSON

Under Rule 106(b), the service is often made by attaching the lawsuit papers to the front door or gate with contemporaneous mailing by certified and regular mail to the same address. When this method is used, the defendant does not have to be encountered in person and the process server or law enforcement officer will not be in a position to testify about having handed the papers to the defendant. But, if the instructions on the order for Rule 106 service were meticulously followed, that does not matter. -- > Sufficiency of substituted service by alternative methods

THE HARSH CONSEQUENCES OF NOT ANSWERING

If the defendant was served, but does not answer as instructed by the citation, the plaintiff may move for a no-answer default judgment. The effect of a default judgment is no different from that of a regular judgment, but it may be easier to challenge for irregularities in the manner it was obtained. There are likely to be more errors because the lawsuit was not subjected to the adversarial process in which errors could have been complained of, and corrected. Courts and clerks are supposed to make sure that all requirements are met, some even have default judgment check-list, but nothing is guaranteed. -- > Requirements for default judgment; -- > Challenging a default judgment based on belated notice.

ATTACKING A DEFAULT JUDGMENT ON GROUNDS OF DEFECTIVE SERVICE OR NONSERVICE 

Compliance with rules of service and the relevant surrounding facts regarding service typically become issues when the defendant eventually hires a lawyer and challenges a default judgment. The method to do so is by bill-of-review petition. If rendered recently, other means to attack the default judgment may also be available. -- > Post-judgment motion; -- > Motion to set aside default judgment; -- > Appeal from final judgment; -- > Restricted appeal.

In an appeal, it may even be possible to argue that the petition was defective and does not support the default judgment; rather than the service of citation. -- > Insufficient pleadings and default judgment.

Defendants are supposed to be given notice of a default judgment promptly after it is signed (to Defendant's last known address), but if the address for service under Rule 106 was bad in the first instance, the notice of judgment will likely have gone to a bad address too. Such notice is not even required to be sent by certified mail, and it does not include an actual copy of the judgment. -- > Sample notice of judgment.

SAMPLE DOCUMENTS 

Return of Citation (2014) - Proof of Service by Declaration under penalties of perjury
by Civil Process Server in lieu of affidavit or sworn & notarized return 

RELATED TOPICS AND BLOG POSTS 

Initiation of lawsuit by Original Petition, followed by service of process on the defendant
Service of lawsuit papers in person, by certified mail, and by alternative methods
What to do about a default judgment
Insufficient pleadings as a basis to challenge a default judgment
No-answer default judgment vs. post-answer default judgment

Substituted Service as alternative to personal service of process

If service of process in the regular manner, i.e. in person by a process server or a peace officer such as a deputy constable, is unsuccessful, the debt collection attorney or private process server may file a motion with the court requesting that a different method of service be authorized by court order.

ALTERNATIVES TO SERVICE OF DEFENDANT PERSONALLY BY A CIVIL PROCESS SERVER OR A PEACH OFFICER 

Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of service. When citation is executed by an alternative method under Rule 106, proof of service must be made in the manner ordered by the court." Tex. R. Civ. P. 107.

Methods of Service of Lawsuits in Texas (rules)

Generally, to support a default judgment, service of process must be performed in strict compliance with appropriate statutory provisions. Such compliance is particularly important when substituted service under Texas Rule of Civil Procedure 106 is involved. When a trial court judge orders substituted service under rule 106 on the motion of the plaintiff who was unsuccessful in serving the defendant in the ordinary manner, the only authority for the substituted service is the order itself. It follows that the requirements set forth in the order must be strictly followed to assure validity of service. If that's not done, there is a good chance that a default judgment can be successfully attacked later.

Orders for alternative service of citation often specify two methods of service, both of which must be complied with. Some judges issue orders for two alternative methods (either one or the other must be used), but additionally require that copies also be sent to the defendant at the same address by regular mail and by certified mail.

Typically, orders for substituted service require delivery to a person over the age of 18 if encountered at the address or by affixing the suit papers to the door or gate if one is present AND mailing of copy of the petition and citation by certified and by ordinary first-class mail. But not all such orders are alike. Nor will judges necessarily grant a motion for alternative service, which must be accompanied by an affidavit stating what service attempts were undertaken and how they were unsuccessful. The facts recited may or not be found satisfactory by a particular court. Some judges set higher requirements than other, such as number of service attempts and evidence that the person to be served actually lives there.

Order granting substituted service (partial snip) 

Assuming the court grants the motion for alternative method(s) of service, any deviation from the trial court's order authorizing substituted service provides a basis for a reversal of the default judgment on appeal based on defective service. Such an appeal is viable even if the defendant was aware of the lawsuit.

Typically, defendants in debt collection suits will have heard from the attorney handling the case prior to the filing of the lawsuit, and will be aware take a lawsuit is coming their way. Some plaintiffs’ attorneys even mail “courtesy” copies to the defendant, advising them that the lawsuit has been filed, accompanied with a disclaimer to the effect that the copy that is being mailed directly to the defendant is not a substitute for formal service.

WHAT IF THE DEFENDANT KNEW OF THE LAWSUIT? 

Courts have held that a default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the lawsuit.
 
Appeals from default judgments are different. In a direct attack on a default judgment, there are no presumptions in favor of a valid issuance, service, and return of the citation. That said, the return of service is considered prima facie evidence of the facts asserted therein (even if they turn out to be false). The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party. The weight given to the return is no less when the recitations impeach the judgment than when they support it. If error is not apparent on the face of the record, an appeal may not be a viable remedy.

Additionally, appeals are only available within a certain time frames.

BILL OF REVIEW PROCEEDING AS AN ALTERNATIVE TO APPEALING A DEFAULT JUDGMENT

In a case in which an appeal is not a viable option to challenge a default judgment, a defendant may want to consider filing a bill of review in the trial court. This will allow for the presentation of evidence outside the record of the case that ended in a default judgment that would support a reopening of that case. A bill of review differs from an appeal of a default judgment in numerous respects, and has a number of specific requirements. If successful, it will reopen the case that ended in a default judgment, rather than setting aside the default judgment and terminating the claim for good. Although a bill of review relates to a previous lawsuit in the same court, it resembles an original lawsuit and it is likely to be docketed under a new cause number.

SAMPLE DOCUMENTS / ORDERS PERTAINING TO SUBSTITUTE SERVICE 

Service did not comply with order: Default Judgment Denied 

Debt Collection Suit: Filing and Service of Citation

Debt Collection by Litigation: Initiation of Suit and Service of Citation  

INITIATION OF LAWSUIT 

A lawsuit or civil action is initiated by the act of filing, which can be accomplished in person by attorney, through the mail, or – in many jurisdictions – now electronically over the internet. 

Under both federal and Texas law, a credit card debt suit must be filed in the county in which the defendant resides. A suit in another county can be challenged by motion to transfer venue, and may make for a viable unfair debt collection claim against the filing attorney, and possibly against the Plaintiff also. 

At the time of filing, a civil case information sheet must also be completed, but it is used for statistical purposes, and is not a document that has legal significance in the lawsuit itself. An error on the form, such as the erroneous classification of lawsuit (type of claim) has no effect on the substance of the petition and the causes of action pleaded therein. It will only affect the accuracy of the aggregate statistical information. The filing attorney must be identified on the civil filing form. Sometimes the name and bar number do not match the attorney whose signature appears on the pleading. The latter determines which attorney is considered attorney-in-charge under Rule 8. The attorney in charge for the plaintiff is the one to whom all responses and other papers are to be served by the Defendant or the Defendant's attorney.  

In any event, the petition can subsequently be amended, and even additional parties may be added, possibly on different legal theories altogether.

CITATION AND PETITION

The defendant has no obligation to answer unless and until he or she (or it) is properly served with process. This is true even if the Defendant has been sent an advance copy of the lawsuit papers by the attorney representing the creditor, or becomes aware of the lawsuit in some other way. The mailing of a "complimentary" copy of the petition is not proper service under the Rules of Civil Procedure. 

These days, it is easy to check if a lawsuit is pending, at least in major counties, if not in all courts. Documents in JP court are typically less accessible.

County courts and district courts in Harris, Fort Bend, Dallas, and many other counties, by contrast, make docket information available online. Some even permit online access to images of documents, although this may require user registration. Even if it is not possible to view petitions online, the consumer or defendant’s attorney can check whether a lawsuit has been filed by doing a name search on the Defendant on the court’s electronic docket system. A search can also be done by Plaintiff’s name, but this may yield a large number of search results because debt collection attorneys typically file dozens, if not hundreds of cases each year, at least in the more populous counties.

The official notice of the lawsuit for service purposes is the citation (called summons in federal court and in other states). It is a document that is separate from the plaintiff’s first pleading, which is generally titled Plaintiff’s Original Petition. The petition may include attachments and discovery requests, and if that is the case, the title of the Petition will typically to refer to such discovery requests. 

Some debt collection attorneys even integrate discovery requests into the petition itself as separate numbered paragraphs. This is not proper practice because the civil rules state that discovery, with certain exceptions, should not be filed with the court. Some debt collection attorneys routinely ignore this rule. 

Plaintiff’s attorneys more mindful of the Texas Rules of Civil Procedure serve discovery requests at the same time the lawsuit is served, but do so by serving the discovery requests as separate documents along with the citation and the petition. In that case, the citation should refer to the additional documents being served, otherwise there is no proof that the discovery documents were also served; nor is their proof of the date on which they were served. If the plaintiff’s attorney later wants to base a motion for summary judgment, or for default judgment, on deemed admissions, the record will not contain sufficient evidence that deemed admissions exist because the requests for admissions will not have a certificate of service on them stating that they were served on the defendant on such and such date, and will not contain any alternative proof of service, such as a certified return receipt (green card). Nor would there be a certificate of service relating to the discovery request.

The date of service controls the deadline for answering the lawsuit itself and the deadline for responding to discovery requests (if any are served together with the petition). 

Discovery requests must be answered within 50 days from the date of service if served together with the citation, rather than 30 days when served later in the course of the lawsuit, after the Defendant has answered, or the appearance date has passed.

The time to answer the lawsuit itself varies. There is less time to answer the lawsuit than to answer requests for admission (even if served at the same time with the petition). There are different rules for justice courts and county and district courts. Small claims courts have been abolished (effective August 2013) and could not be used by debt collector even before the legislative amendment.  
   
Additionally, the amount of time from the date of service to appearance day is affected by the day of the week the lawsuit was served, because the appearance day is always a Monday.

METHODS OF SERVICE

Service of lawsuit papers is governed by the civil rules of procedure and may be accomplished by delivery of citation and petition by a civil process server or law enforcement officer, by certified mail, and – in rare cases, and subject to special requirements – by publication in a newspaper and/or newspaper website. 

Debt collection attorneys mostly use civil process servers, and – less commonly – constable or sheriff’s deputies.  
  
If the defendant cannot be found, or does not pick up certified mail, a separate rule provides for alternative methods of service called “substituted” service. This typically involves the attachment of citation and petition on the entrance door or gate at a specified address, assuming no one answers a ring or knock on the door. Substituted service must be specifically authorized by the court in a written order that often also requires that a copy of citation and petition be mailed by certified mail, or by both certified and regular mail.

In order to use alternative service, the plaintiff must file a motion requesting an order for alternative service, and the motion must have an affidavit attached that details the efforts undertaken by the process server to serve the citation. The court may deny the motion if the court finds the information inadequate, or if it appears that the service attempts were at the wrong address.
   
When service is in person, the defendant need not sign anything. Some consumers may think they have not been served because the papers were merely handed to them, but that would be a misconception.

DEFECT IN SERVICE 

Service of citation may have been ineffective if there is a question as to the identity of the person served, or the truthfulness of the process server (so-called "sewer service"). Process servers have to sign the “return” of citation under penalty of perjury and provide date (and time) of service.

If service is by certified/registered mail, the defendant must personally sign the green card, even if it is otherwise common practice for an agent to do so.

Even if there are indications that service was not in conformity with the rules that govern it, or good reason to believe that it was not legally effective, it normally makes little sense to fight over it as long as  no default judgment has yet been rendered.

The vehicle to challenge a defect in service would be a motion to quash service, which would merely delay the deadline for answering. The filing of such a motion would constitute an appearance, and thereby actually accomplish the purpose of service at least in part, i.e. bring the person being sued before the court and preclude a no-answer default judgment. Though rarely an issue, a motion to quash service of citation based on some defect will also have the effect of waiving any complaint about the court’s lack of personal jurisdiction over the defendant. If personal jurisdiction is an issue, it may be necessary to file a special appearance to avoid waiving the issue. 

Does delay in service affect the running of limitations? 

Even if a debt claim is (or appears to be) close to becoming time-barred, this determination is based on the filing date of the lawsuit, not on the date of service or the appearance date, although the plaintiff must show diligence in attempting to procure service if the statute of limitations expires before the defendant is actually served. If the plaintiff fails to demonstrate diligence in getting the lawsuit served, the statute of limitations may provide an effective defense even if the applicable limitations period had not yet expired when the lawsuit was filed.

EFFECT OF FAILURE TO SERVE CITATION

The normal practice is for a debt plaintiff to file suit and request issuance of citation at the same time. But a lawsuit may also be filed without requesting issuance of citation, with the result that the lawsuit will merely sit on the docket. Although rare in debt case, sometimes there is a tactical advantage doing this for timing reasons. If a lawsuit is anticipated by the other side, filing first may confer certain advantages.

If the other party remains unaware of the filing, and files its own lawsuit against the plaintiff in the first suit, the two lawsuits will likely be consolidated (if both were filed in the same court system or even in the same court), or the second suit will be put on hold (abated) under the dominant jurisdiction doctrine even if there would not be any reason for the second court to lack jurisdiction otherwise.

The information on and in a filed lawsuit will be available as a public record, and may even get published in a local newspaper, on a community website or blog, or on a legal-oriented web site. A law suit in which no service was requested may linger on the docket for years, but may terminate earlier for a number of reasons. Among the possible scenarios: The defendant may become aware of the lawsuit and decide to file an answer. Even a handwritten letter by the defendant addressed to the judge may be enough to be deemed an answer, and thus constitute an appearance.

If nothing further happens, the lawsuit may be dismissed by the judge for want of prosecution, but that will depend on whether the court (or clerk serving multiple courts) has a system that tracks the aging of active lawsuits, and a policy to send notice of intent to dismiss for want of prosecution that sets a deadline for certain actions to be taken, and a warning of the court’s intent to dismiss the case if of the specified events occur. (-->DWOP)(-->Samples of DWOP notices; samples of DWOP orders). The court must first give notice to the plaintiff of its intent to dismiss a case for want of prosecution. Some court and/or counties do not have a system in place that monitors cases in which only a petition is on file and triggers a process of having them dismissed after giving the plaintiff a written notice and opportunity to take specified actions to prevent dismissal.

CONSEQUENCES OF FAILURE TO FILE AN ANSWER

If the Defendant has been served, but does not answer, the plaintiff may move for default judgment. In order to be entitled to default judgment, the plaintiff must satisfy certain requirements that go beyond proof that the defendant was served.