Doris Ebo d/b/a Fabulous Cab Company, Jackson Ebotuka d/b/a Fabulous Cab Company, Fabulous Cab Company and Guadalupe DeLeon v. Julie Fair and Matthew Jackson--Appeal from 224th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00644-CV

Guadalupe DELEON, Doris Ebo d/b/a Fabulous Cab Company, and

Jackson Ebotuka d/b/a Fabulous Cab Company,

Appellants
v.
Julie FAIR and Matthew Jackson,
Appellees
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-07371
Honorable Joe Frazier Brown, Jr., Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: July 18, 2007

 

REVERSED AND REMANDED

On March 28, 2006, appellees Julie Fair and Matthew Jackson were granted a default judgment against appellants Guadalupe Deleon, Doris Ebo, Jackson Ebotuka, and Fabulous Cab Company. On appeal, appellants assert the default judgment should be set aside because of defective service. Because service was defective, we reverse the judgment of the trial court and remand for further proceedings.

Factual Background

Appellees Julie Fair and Matthew Jackson ("Fair") were injured on April 24, 2004, when their vehicle was struck by a cab driven by appellant Guadalupe Deleon, and operated by Fabulous Cab Company. (1) Fair sued Deleon, Doris Ebo d/b/a Fabulous Cab Company, Jackson Ebotuka d/b/a Fabulous Cab Company and Fabulous Cab Company for damages. After attempting personal service on each individual appellant, Fair petitioned the trial court for substituted service. The trial court authorized substituted service for each individual appellant via service on "Linda Preston," (2) the alleged insurance adjustor for appellants. (3) None of the defendants appeared, and on March 28, 2006, the trial court granted Fair a default judgment against Deleon, Ebo, Ebotuka, and Fabulous Cab Company, holding them jointly and severally liable.

The appellants argue the judgment should be reversed as to all appellants because of defective service. On appeal, Fair concedes Jackson Ebotuka was improperly served and that the judgment should be reversed, but only as to Ebotuka. Restricted Appeal

A party may bring a restricted appeal if the party: (1) filed notice of the restricted appeal within six months after the judgment was signed; (2) was a party to the underlying lawsuit; (3) did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). These requirements are jurisdictional. Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.--Fort Worth 2001, pet. denied). No party disputes that appellants meet the first three requirements for filing a restricted appeal. Whether error is apparent on the face of the record, however, depends on the resolution of the issue of proper service.

A. Error on the face of the record

When reviewing a default judgment via restricted appeal, we may not presume valid issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam). Strict compliance with the rules must affirmatively appear on the record if we are to sustain a default judgment. Id. "Lack of proof of proper service constitutes error on the face of the record that defeats the trial court's jurisdiction." Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.--Houston [1st Dist.] 2005, no pet.).

The appellants point to four instances of improper service: 1) ordering substituted service on Linda Preston of Toubin Insurance Company; 2) the return of service did not reflect that Doris Ebo received service of a live pleading; 3) appellees incorrectly identified the appellants in their pleadings; and 4) the returns were not completed in accordance with the rules of civil procedure.

B. Substituted service

A trial court may authorize substituted service on a defendant upon the filing of an 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 . . . at the location named in such affidavit but has not been successful." Tex. R. Civ. P. 106(b). The affidavit must first provide sufficient facts before the trial court may exercise its discretion to grant substituted service. See Coronado v. Norman, 111 S.W.3d 838, 841 (Tex. App.--Eastland, pet. denied); Furst, 176 S.W.3d at 869-70. We review the trial court's grant of substituted service under a de novo standard. Coronado, 111 S.W.3d at 841; Furst, 176 S.W.3d at 869-70.

Following failed attempts at personal service, the Fairs moved for substituted service on each individual defendant. Two affidavits, one by the Fairs' lawyer, Forrest Welmaker, and one by the process server, were submitted with the motion for substituted service for each defendant. Appellants argue the affidavits submitted were defective because neither states the location at which service was attempted is a place appellants "can probably be found." See Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 444 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (concluding Rule 106(b) requires the affidavit include a statement that the location of attempted service is the defendant's usual place of business or usual place of abode or other place he can probably be found); Garrels v. Wales Transp., Inc., 706 S.W.2d 757, 759 (Tex. App.--Dallas 1986, no writ). We agree.

Deleon

The Fairs attempted to serve Deleon at his last known address. In the application for substituted service, the process server's affidavit states he attempted to serve Deleon on or about May 26, 2005, at 570 N. San Ignacio, in San Antonio, Texas. Deleon's estranged wife answered the door and told the server Deleon did not reside there, and that she did not know where Deleon lived. No further personal service was attempted. Based on these facts, the trial court ordered substituted service on "Linda Preston, (4) at Toubin Insurance Company" via certified mail or by leaving the citation and petition with an employee of Toubin Insurance Company over the age of sixteen years old. The returns reflect the process server delivered the citation and pleading in accordance with the order granting substituted service.

The substituted service on Deleon did not comply with Rule 106(b) because no affidavits stated that service was attempted at Deleon's usual place of business or abode or a place where Deleon could probably be found. The motion for substituted service never identified the address of attempted service as a residence or business location but identified it as a "last known address." The process server's affidavit refutes the notion that the location was Deleon's abode. His estranged wife stated Deleon was gone and she did not know where he was. No further attempt was made to locate Deleon or confirm the veracity of the estranged wife's statement. Accordingly, the Fairs failed to meet the necessary requirement of "strict compliance with the Rules of Civil Procedure." Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam). Consequently, the order for substituted service on Deleon cannot support a default judgment. See also Hibachi v. Festina, No. 05-0357, 2007 WL 1576044, at *2 (Tex. Jun. 1, 2007) (per curiam) (concluding substituted service was improperly granted when plaintiff made a single attempt to serve the defendant before moving for alternative service, and there was no evidence that the defendant actually received mail at the address used in the order granting substituted service).

Doris Ebo d/b/a Fabulous Cab Co.

Larry Sparkman, another process server, submitted an affidavit stating he made three attempts to serve Doris Ebo d/b/a Fabulous Cab Company at 9110 Mirecourt Drive, San Antonio, Texas, her last known address. There was no response on the first two attempts. On the third attempt, a man answered the door, stated Doris Ebo was not there, refused to accept the notice, then stated there would be "trouble" if Sparkman returned. The trial court allowed the same substituted service on Preston, but also required the citation and petition be attached to the door at the Mirecourt Drive residence. (5)

"Substituted service pursuant to rule 106(b) contemplates delivery to a 'proper representative' of the defendant when it is impractical to summon the defendant by personal service." Furst, 176 S.W.3d at 871. In Furst v. Smith, the court of appeals concluded the trial court erred in allowing substituted service on a defendant's parent at the parent's place of business. Id. at 870-71. In their motion for substituted service, the plaintiffs stated that the parent was "familiar with the case" and had sent money to the plaintiffs on behalf of his daughter and son-in-law, the defendants. Id. at 870. In reversing the trial court, the court of appeals noted the motion for substituted service must also show "that the person upon whom substituted service is requested is a proper representative so that the substituted service requested will be 'reasonably effective' to notify the named defendant." Id. at 871.

In this case, the motion for substituted service does not demonstrate that Linda Preston is the proper representative of Doris Ebo d/b/a Fabulous Cab Company. The only connection between Preston and Ebo d/b/a Fabulous Cab Company is the affidavit of the Fairs' lawyer stating "Linda Preston, an employee of Toubin Insurance Company" is the "adjustor in charge" of this claim. We may not assume from this one statement that service upon Preston was reasonably effective to give notice to Ebo d/b/a Fabulous Cab. Primate Constr., 884 S.W.2d at 152.

Moreover, the affidavits in support of the motion for substituted service did not demonstrate that 9110 Mirecourt Drive was Ebo or Fabulous Cab Company's "usual place of business or usual place of abode or other place where the defendant can probably be found." Tex. R. Civ. P. 106(b). Therefore, the trial court erred in granting substituted service on Ebo d/b/a Fabulous Cab Company.

Fabulous Cab Company

The default judgment reflects a judgment not only against the individuals but also against an entity, the Fabulous Cab Company. The record contains no proof of service upon Fabulous Cab Company. The Second Amended Petition reflects the Fairs added Fabulous Cab Company as a separate defendant. The petition states Ebo d/b/a Fabulous Cab Company and Deleon have been served, but there is no mention of service on Fabulous Cab Company as a separate entity. We cannot presume valid issuance, service, and return of citation. Primate Constr., Inc., 884 S.W.2d at 152. As there is no affirmative proof in the record that the Fairs served Fabulous Cab Company, the trial court lacked jurisdiction to enter judgment against Fabulous Cab Company. (6)

These defects in service constitute error on the face of the record. As appellants met the other elements of a restricted appeal, we have jurisdiction over this appeal. Tex. R. App. P. 26.1(c), 30. Because the improper granting of substituted service is dispositive of the appellants' remaining issues, we need not address them. Tex. R. App. P. 47.1.

Conclusion

Appellees' affidavits are insufficient to support substituted service on appellants. Fabulous Cab Company was never served. Accordingly, the judgment of the trial court is reversed and this matter is remanded for further proceedings consistent with this opinion.

 

Rebecca Simmons, Justice

1. Appellants assert the proper name is Fabulous Cab Corporation.

2. Appellants argue the correct spelling is "Lynda Preston."

3. As discussed below, in addition to service via Preston, additional methods of substituted service were ordered for the individual defendants.

4. The Fairs' attorney, in an affidavit submitted with the motion for substituted service, alleges Linda Preston is the appellants' insurance "adjustor" in charge of administering this particular claim.

5. The trial court's order required "service on Defendant Doris Ebo d/b/a Fabulous Cab Company both by attaching a true copy of the citation and attached petition to the front door . . . and by serving a true copy of the citation and attached petition via certified mail upon Linda Preston. . . " (emphasis added). The returns reflect the process server delivered the citation and a first amended petition through these means.

6. Since the Fairs served two individuals doing business as Fabulous Cab Company, it is unclear whether the Fairs initially were using Rule 28 of the Texas Rule of Civil Procedure to sue the individuals or whether Fabulous Cab Company was considered a separate entity. Tex. R. Civ. P. 28. Even if, arguendo, service upon Ebo d/b/a Fabulous Cab Company was effective service on Fabulous Cab Company, the outcome remains the same, as the Fairs did not properly serve Ebo d/b/a Fabulous Cab Company.