JIMIE DIANNE OWSLEY v. BRIAN LEON OWSLEY

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Court of Appeals of Texas, Corpus Christi-Edinburg.

JIMIE DIANNE OWSLEY, Appellant, v. BRIAN LEON OWSLEY, Appellee.

NUMBER 13-17-00025-CV

Decided: November 01, 2017

Before Chief Justice Valdez and Justices Benavides and Hinojosa

MEMORANDUM OPINION

This is an appeal from a default judgment. By eight issues, which we construe as one central issue with seven sub-issues, appellant Jimie Dianne Owsley seeks to set aside the default judgment rendered against her in a post-divorce decree enforcement action. We reverse and remand.

I. BACKGROUND

Jimie and Brian are former spouses who divorced in July 2015. In June 2016, Brian filed a post-decree motion to enforce their final divorce decree. See TEX. FAM. CODE ANN. § 9.001(a) (West, Westlaw through 2017 1st C.S.) (“A party affected by a decree of divorce ․ may request enforcement of that decree by filing a suit to enforce ․ in the court that rendered the decree.”).

Slightly more than a month after filing his post-decree enforcement action, Brian filed a motion for alternate service under Texas Rule of Civil Procedure 106(b). See TEX. R. CIV. P. 106(b) (allowing for alternative service of citation upon motion supported by affidavit that attempts to serve where normal methods of service were unsuccessful). In his motion, Brian asserted that since filing the enforcement action, Jimie “has avoided service by not answering her door while at home” and that she has instructed the staff at her office to tell the process server that “she is not in, although her automobile is in the parking lot of her office.” Brian then asked the trial court to issue an order authorizing alternate service by serving a copy of the enforcement petition and citation upon Jimie's office manager and taping a duplicate copy of the motion and citation on the door of Jimie's home. Brian also attached an affidavit by his process server, who averred that he has attempted to serve Jimie “five (5) times at her home, when I know she is there, and she refuses to answer the door.” The process server also stated that he attempted to serve Jimie at her office on five occasions, but was told that she was not there.

On July 19, 2016, the trial court granted Brian's motion for alternate service and issued the following order:

IT IS ORDERED that service may be had on Respondent, Jimie Owsley, by serving the citation and document upon the office manager/receptionist at Respondent's office located at 810 Morgan, Corpus Christi, Texas, as well as, taping a duplicate citation and document on the door of [Jimie's] residence at 130 Southern, Corpus Christi, Texas.

On August 16, 2016, Brian's process server filed an affidavit with the trial court, stating the following in relevant part:

On 6/24/2016 I received a Citation and Motion to Enforce Final Decree of Divorce, Styled in the Matter of the Marriage of Jimie Diane Owsley and Brian Leon Owsley from the Law Offices of William A. Dudley, in Cause Number 2014-FAM-1876-G from 319th District Court of Nueces, County, Texas. I was instructed to deliver the documents to [Jimie] by delivering one copy attached to the door at 130 Southern Dr. Corpus Christi, Nueces County, Texas and another copy to the Office Manager at 810 Morgan Avenue, Corpus Christi, Nueces County, Texas.

On June 25, 2016 at approximately 8:03 a.m. I personally delivered the said documents to [Jimie] by attaching to the front door at 130 Southern Dr., Corpus Christi, Nueces County, Texas with the time and date affixed to the documents. On August 15, 2016 at approximately 3:45 p.m. I personally delivered the said documents to a Hispanic female approximately 35-40 years of age, 5'2”-5'4” and approximately 130 lbs with shoulder length brown hair who identified herself as the Office Manager for Dr. Owsley with the date affixed to the documents as per Rule 106 of the Texas Rules of Civil Procedure and Order of the Court.

On September 30, 2016, the trial court rendered a default judgment on Brian's enforcement action, noting that although Jimie was “duly and properly served with citation, [she] failed to file an answer to the motion to enforce ․ and is in default.” In its order, the trial court essentially granted Brian's order of enforcement in its entirety with minor changes.

On October 24, 2016, Jimie, acting pro se, filed a document with the trial court erroneously entitled “Order to Vacate Judgment,” which we will treat as a motion to vacate or set aside the default judgment.1 In the filing, Jimie asserts that she received no prior notice of the enforcement hearing and learned about it “by happenstance.” Jimie further complained about the proceedings taking place without her presence and requested a “stay to file [her] response” to the enforcement action, “trial by jury,” and a “tape recording of proceedings.” The record also shows that on November 17, 2016, Jimie filed an “Amended Motion to Vacate Judgment” arguing that she was not properly served and sought to vacate the enforcement order on those grounds.

The trial court denied Jimie's motion to vacate, and this appeal ensued.

II. DEFAULT JUDGMENTS AND SUBSTITUTE SERVICE

By her central issue, Jimie contends that we should set aside the default judgment and remand for a new trial because she was denied due process due to defective service of Brian's post-divorce decree enforcement action.

A. Applicable Law

For more than a century, Texas jurisprudence 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. Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); Primate Const. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Flynt v. Kingsville, 125 Tex. 510, 511, 82 S.W.2d 934, 934 (1935); Sloan v. Batte, 46 Tex. 215, 216 (1876); Roberts v. Stockslager, 4 Tex. 307, 308–10 (1849).

In conducting our review of a direct attack on a default judgment, there are no presumptions in favor of valid issuance, service, and return of citation. Primate Const., 884 S.W.2d at 152. The return of service is not a trivial, formulaic document, and it has long been considered prima facie evidence of the facts recited therein. Id. In fact, the recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party. Id. The weight given to the return is no less when the recitations impeach the judgment than when they support it. Id.

Virtually any deviation from the appropriate service of process rules will be sufficient to set aside a default judgment. See Dolly v. Aethos Comm. Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.). The doctrine of strict compliance is particularly important when substitute service under rule of civil procedure 106 is involved. Id.; see Becker v. Russell, 765 S.W.2d 899, 900 (Tex. App.—Austin 1989, no writ). Thus, the requirements set forth in a trial court's order for substitute service must be strictly followed, and any deviation from the trial court's order necessitates a reversal of the default judgment based on service. See Dolly, 10 S.W.3d at 388; Becker, 765 S.W.2d at 900. The policy behind this rule is that except upon the terms and conditions stated by the judge in his order, there is no authority for substitute service. See Broussard v. Davila, 352 S.W.2d 753, 754 (Tex. Civ. App.—San Antonio 1961, no writ).

B. Discussion

The record in this case shows that the trial court authorized substitute service under rule of civil procedure 106 on July 19, 2016. The terms of the substitute service order stated that Brian shall serve a copy of Brian's post-decree motion to enforce and citation to Jimie's office manager and taping a duplicate copy of the post-decree motion to enforce and citation on Jimie's door.

In the return of service affidavit, Brian's process server averred that he served the post-decree motion to enforce and citation to Jimie by attaching copies of both documents on the door of Jimie's residence on June 25, 2016, slightly less than a month before the trial court ordered substitute service. This means that Brian utilized a method of substitute service before it was actually authorized by the trial court. Furthermore, nothing in the record shows that Brian served Jimie by substitute service of taping it to the door of her residence after the trial court's July 19th order. As result, we conclude that Brian deviated from the trial court's order and did not strictly follow Rule 106 because he served Jimie without prior authorization for substitute service. See TEX. R. CIV. P. 106; Dolly, 10 S.W.3d at 388; Broussard, 352 S.W.2d at 754. We sustain Jimie's issue on appeal.

III. CONCLUSION

We reverse the trial court's default judgment and remand for further proceedings consistent with this opinion.

FOOTNOTES

1.   When examining a pleading, we review the substance of the pleading and the relief sought rather than the form of title given to it. See TEX. R. CIV. P. 71 (Misnomer of Pleading); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980).

GINA M. BENAVIDES, Justice