John Michael Duncan v. Crownridge of Texas Owners Association, Inc.--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00210-CV
John M. DUNCAN,
Appellant
v.
CROWNRIDGE OF TEXAS OWNERS ASSOCIATION, INC.,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-02093
Honorable Andy Mireles, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 8, 2003

REVERSED AND REMANDED

This is a restricted appeal in which John M. Duncan ("Duncan") seeks to set aside a default judgment based on defective service of process. The appellee, Crownridge of Texas Owners Association, Inc., did not file an appellee's brief in this appeal. Because we agree that the return of citation fails to show strict compliance with the Texas Rules of Civil Procedure, we reverse the trial court's judgment and remand the cause to the trial court for a new trial.

"For well over a century, [the Texas Supreme Court] has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack." Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). "There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment." Id. "Moreover, 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).

"Rule 108 [of the Texas Rules of Civil Procedure] is a valid procedural alternative to service under the long-arm statute." Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 495 (Tex. 1988); see also Southern v. Glenn, 677 S.W.2d 576, 582 (Tex. App.--San Antonio 1984, writ ref'd n.r.e.) (noting Rule 108 to be alternative to long-arm statute). Rule 108 provides that the form of notice to a nonresident shall be the same as prescribed for citation to a resident defendant, and the return of service shall be in the form provided by Rule 107. Tex. R. Civ. P. 108. Rule 106 permits citation to be served by delivering to the defendant, in person, a true copy of the citation with a copy of the petition attached, or by mailing the same to the defendant by certified mail, return receipt requested. Tex. R. Civ. P. 106(a). Service by leaving a true copy of the citation with another individual must be authorized by the court upon motion supported by affidavit stating that service has been attempted under Rule 106(a) but has not been successful. Tex. R. Civ. P. 106(b).

The Plaintiff's Original Petition states that Duncan could be served with process at "6876 Indiana Avenue #G, Riverside, Riverside County, California, 92506." The officer's return states that service was executed by "delivering to JACK DUNCAN, FATHER/RESIDENT[,] in person a true copy of this citation together with the accompanying copy of plaintiff's petition. Served at 28690 OLD TOWN FRONT #370B, TEMECULA, CA 92590." Because the record does not reflect service of citation on John M. Duncan and because the record does not reflect that the trial court authorized substitute service, the record does not reflect strict compliance with the Texas Rules of Civil Procedure relating to the issuance, service, and return of citation. See Uvalde Country Club, 690 S.W.2d at 885 (holding service on "Henry Bunting" as opposed to "Henry Bunting, Jr." as registered agent to be invalid service).

Because proper service has not been affirmatively shown, error is apparent on the face of our record. The trial court's judgment is reversed, and the cause is remanded to the trial court for a new trial.

Alma L. L pez, Chief Justice