Goshorn, Randy v. Brown, Stanley E.--Appeal from County Court at Law No 2 of Galveston County

Affirmed and Memorandum Opinion filed September 23, 2003

Affirmed and Memorandum Opinion filed September 23, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00852-CV

____________

RANDY GOSHORN, Appellant

V.

STANLEY E. BROWN, Appellee

_______________________________________________________

On Appeal from the County Court at Law Number 2

Galveston County, Texas

Trial Court Cause No. 46,963A

_______________________________________________________

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

  Appellant Randy Goshorn challenges the trial court s denial of his petition for a bill of review. Goshorn argues the trial court should have set aside the default judgment entered against him (1) because the trial court improperly authorized alternative service of citation; and (2) because appellee Stanley E. Brown did not file an affidavit disclosing Goshorn s military status, if any, before entry of the default judgment. We affirm.

 

I. Factual and Procedural Background

Goshorn petitioned the trial court for a bill of review to set aside a default judgment entered against him. In the underlying case, Brown sued Goshorn to settle a dispute about a truck Goshorn had sold to Brown. The trial court authorized Brown to effect service on Goshorn by affixing the relevant papers to the front door of Goshorn s residence. When Goshorn failed to answer the lawsuit, the trial court entered a default judgment against him, awarding Brown $14,257.72 for economic and consequential damages, $15,000 for additional damages, and $1,459 for attorney s fees. In the trial court, Goshorn argued that he did not learn of the underlying lawsuit until after the trial court had entered the default judgment.

II. Issues Presented

Goshorn presents the following issues for appellate review:

(1) Did the trial court reversibly err by upholding the default judgment rendered against Goshorn, when the affidavit in support of Brown s motion for substituted service allegedly did not comply with Texas Rule of Civil Procedure 106(b)?

(2) Did the trial court reversibly err by not finding the default judgment entered against Goshorn void for Brown s failure to comply with the Soldiers and Sailors Civil Relief Act of 1940?

III. Analysis and Discussion

  In his first issue, Goshorn argues the trial court reversibly erred by not setting aside the default judgment entered against him because he was not properly served with citation in the underlying lawsuit. Specifically, Goshorn complains that the affidavit Brown submitted in support of Brown s motion for alternative service, did not state the location of Goshorn s usual place of business or usual place of abode[1]. See Tex. R. Civ. P. 106(b).

A bill of review to set aside a default judgment is a direct attack on the judgment. See Min v. Avila, 991 S.W.2d 495, 499 (Tex. App. Houston [1st Dist.] 1999, no pet.). A default judgment cannot withstand direct attack by a defendant who was not served in strict compliance with the Texas Rules of Civil Procedure. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990). There are no presumptions in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment. Id.

Texas Rule of Civil Procedure 106(b) provides alternatives to service of process by mail or in-person delivery when the serving party meets the requirements set forth in the rule: 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) [in-person service] or (a)(2) [service by 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).

In support of his motion for alternative service, Brown submitted the affidavit of a private process server that stated the defendant s address is 10923 Sageberry, Houston, Texas 77089. The affidavit also described the process server s three unsuccessful attempts to effect personal service on Goshorn at the Sageberry address. According to the affidavit, on the first attempt, no one answered the door. Five days later, the process server attempted service on Goshorn a second time. He described this attempt in the affidavit, stating:

A young man answered the door. I told him I was there to see Randy Goshorn. He went back in to [sic] the house to get him. He came back to the door and stated Mr. Goshorn was tied up and could not come to the door. I explained to him I was there with service papers from the Court. He went back into the house. He came back and told me I would have to come back another day. I left him my card and told him to have Mr. Goshorn contact me. I never heard from him.

The affidavit states that three days later, on the process server s third attempt to effect personal service on Goshorn, a different young man answered the door. He said that Goshorn was not there, so the process server left her card and asked the young man to have Goshorn contact her. The process server did not hear from Goshorn.

Goshorn argues the private process server s affidavit is defective because it does not state that the Sageberry address is Goshorn s usual place of abode or business. See Tex. R. Civ. P. 106(b). We disagree. Although a higher degree of precision in an affidavit is preferable, the plain language of the rule does not require the affiant to state that the address is the defendant s usual place of abode or business or a place where the defendant can probably be found. See Pickersgill v. Williams, No. A14-93-00424-CV, 1994 WL 2011, at *3 *4 (Tex. App. Houston [14th Dist.] Jan. 6, 1994, writ denied) (not designated for publication[2]) (finding proper citation under Rule 106(b) when affidavit gave address believe[d] to be [defendant s] . . . place of residence, and described numerous attempts to serve at address). As worded, the rule requires only that the affiant state 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. See Tex. R. Civ. P. 106(b). In addition to stating that the Sageberry address is Goshorn s address, the facts given in the process server s affidavit show that the Sageberry address is the location of Goshorn s usual place of abode or a place where Goshorn can probably be found. The young man who answered the door on the process server s second attempt to serve Goshorn at the Sageberry address, indicated Goshorn was in the home, but was unwilling or unable to come to the door. The young man instructed the process server to return to the same home another day to serve Goshorn. When the process server returned to the home, another young man indicated Goshorn was not present at the time. These facts show strict compliance with Rule 106(b) s requirement that an affidavit in support of a motion for substituted service state 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. Accordingly, we overrule Goshorn s first issue.

In his second issue, Goshorn maintains the trial court committed reversible error by not setting aside the default judgment because of Brown s failure to comply with the Soldiers and Sailors Civil Relief Act of 1940. See 50 U.S.C. 520. Brown violated the Act by failing to file an affidavit, before entry of the default judgment, stating whether Goshorn was in the military at the time of the underlying suit, or providing that Brown was unable to determine Goshorn s military status. See id. A default judgment entered without compliance with the Act is voidable, but not necessarily void. Hawkins v. Hawkins, 999 S.W.2d 171, 174 (Tex. App. Austin 1999, no pet.). The protections of the Act are only available to those in military service. See id. at 174 75. Goshorn s trial counsel conceded that Goshorn was not in the military at the relevant time. Because Goshorn could not and did not make a proper showing of prejudice, we find the trial court correctly refused to set aside the default judgment on this basis. See 50 U.S.C. 520(4); Hawkins, 999 S.W.2d at 174 75. Accordingly, we overrule Goshorn s second issue.

Having overruled both of Goshorn s appellate issues, we affirm the trial court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed September 23, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

[1] Brown maintains Goshorn failed to preserve error on his first issue because he did not make this complaint in the trial court. See Tex. R. App. P. 33.1 (requiring party to make a timely, specific objection in the trial court to preserve error for appellate review). We address the merits of Goshorn s first issue because the Texas Supreme Court has held that a party challenging a default judgment need not preserve error in the trial court regarding claims of defective service. See Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990).

[2] Opinions not designated for publication have no precedential value, but may be cited with the notation, (not designated for publication). Tex. R. App. P. 47.7.