IN THE INTEREST OF v. << (2011)

MEMORANDUM OPINION

Opinion By Justice Bridges

Michael Burtelow appeals the trial court's summary judgment in favor of Michelle Huffman on Burtelow's bill of review following the trial court's default judgment in favor of Huffman.   In a single issue, Burtelow argues the trial court erred in granting summary judgment because he was not properly served with the underlying petition to modify the parent-child relationship and, therefore, the trial court never had jurisdiction over him.   We reverse and remand the case for a new trial.

M.C.B. is the child of Burtelow and Huffman.   In June 2009, Huffman filed a petition to modify the parent-child relationship.   Huffman sought and obtained an order providing service on Burtelow would “be effected by attaching and affixing the citation to the front door of the apartment located at” Burtelow's address.   Process server Frank Clabough had attempted to serve Burtelow on five separate occasions without success.   Clabough served the citation and petition to Burtelow's address and stated on the return of service affidavit that the delivery was made “by 106 to door of” Burtelow's address.   Burtelow did not answer Huffman's petition.   Following a hearing on July 21, 2009 at which Burtelow did not appear, the trial court rendered a default judgment, an order modifying the parent-child relationship.   Burtelow ultimately filed a petition for bill of review in which he argued he did not receive notice of the July 21, 2009 hearing and asked that the July 21, 2009 order be set aside.   Huffman filed a traditional motion for summary judgment arguing Burtelow was not entitled to notice of the default judgment hearing because he had not filed an answer.   The trial court granted Huffman's motion for summary judgment, and this appeal followed.

In his sole issue, Burtelow argues the trial court erred in granting summary judgment denying his bill of review.   Specifically, Burtelow asserts the return of service did not strictly comply with the rules of civil procedure because the trial court's order required the citation to be attached or affixed to his door, and the return stated it was executed “by 106 to door.”

The standard of review for a traditional summary judgment is well known.   See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985).   Strict compliance with the Texas Rules of Civil Procedure relating to the issuance, service, and return of citation must be shown on the face of the record or the attempted service of process will be rendered invalid and of no effect.   Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985).  Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of service.  Tex.R. Civ. P. 106(b).  “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.”  Tex.R. Civ. P. 107.   When a trial court orders substituted service under rule 106, the only authority for the substituted service is the order itself.  Dolly v. Aethos Commc'n Sys., Inc., 10 S.W.3d 384, 388 (Tex.App.—Dallas 2000, no pet.);   Vespa v. Nat'l Health Ins. Co., 98 S.W.3d 749, 752 (Tex.App.—Fort Worth 2003, no pet.).   Therefore, the requirements set forth in the order must be strictly followed.  Dolly, 10 S.W.3d at 388.   Any deviation from the trial court's order authorizing substituted service necessitates a reversal of the default judgment based on service.  Id. A default judgment is improper against a defendant who has not been served in strict compliance with law, even if he has actual knowledge of the lawsuit.  Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990).

Here, Burtelow was served using substitute service under rule 106.   Huffman was required to follow the trial court's instructions exactly when serving Burtelow.  Vespa, 98 S.W.3d at 752.   The trial court required that service on Burtelow “be effected by attaching and affixing the citation to the front door of the apartment located at” Burtelow's address.   The return of service affidavit indicated the process server delivered a copy of the citation and petition “by 106 to door of” Burtelow's address.   Burtelow argues the return is “unclear exactly how the citation was served.”   We agree.   The return does not show the requirements set forth in the order authorizing substitute service were strictly followed.   See Dolly, 10 S.W.3d at 388.   Accordingly, the trial court was required to reverse the underlying default judgment in the suit affecting the parent-child relationship.   See id.   Under these circumstances, the trial court erred in granting summary judgment in favor of Huffman.   See Nixon, 690 S.W.2d at 548.   We sustain Burtelow's sole issue.

We reverse the trial court's judgment and remand for a new trial.

100158F.P05

DAVID L. BRIDGES JUSTICE