ARTICLE DATE: September 5, 2009
COURT'S DECISION: July 2009
TEXAS THIRD COURT OVERTURNS SERVICE
In a recent decision of a restricted appeal, the Texas Third Court of Appeals overturned a
service of citation that had been attempted by certified mail, then sub. served by first class
mail. Because the record did not show strict compliance with the rules for substituted
service (Rule 106, TRCP,) the Court reversed the default judgment and remanded the
cause to the trial court for further proceedings.
In a restricted appeal, defective service of process constitutes error on the face of the
record. Rather, the record must affirmatively show strict compliance with the applicable
rules relating to service of process. It is the responsibility of the party requesting service
to ensure both that proper service is accomplished and that the record reflects proper
service.
Defendant was served under substituted service, pursuant to Rule 106. See Tex. R. Civ.
P. 106. (2) Under Rule 106, when the traditional methods of service of process--in person
or via certified mail--are infeasible, the trial court may, "upon motion supported by
affidavit," authorize service in a manner "that the affidavit or other evidence before the
court shows will be reasonably effective to give the defendant notice of the suit." Id. Rule
106(b). The supporting affidavit must state (1) "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 (2) the specific facts showing that traditional service has been attempted "at
the location named in such affidavit but has not been successful." Id.
ISSUE NO. 1- The affidavit did not contain exact wording as required under Rule 106(b),
TRCP.
The defendant contends that the affidavit does not meet either requirement because it
does not state the location of her usual place of abode and because it does not specify
sufficient facts regarding the prior attempts at service.
The Court agreed that the affidavit does not strictly comply with the first
requirement of Rule 106. While the affidavit does list an address for service--6008
Oakland Knoll Drive #251, Fort Worth, Texas 76112--it does not affirmatively show
that this address was defendant's usual place of abode or other place where
defendant could probably be found. To show strict compliance with Rule 106, the
affidavit must aver or otherwise provide probative evidence that the address for
service is the defendant's usual place of business or usual place of abode or
other place where defendant can probably be found. See In re Sloan, 214 S.W.3d
217, 222
Rule 106(b), Texas Rules of Civil Procedure reads, "...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) or (a)(2)
at the location named in such affidavit but has not been successful, the court may
authorize service..."
The plaintiff argued that, though the affidavit does not use the words "usual place of
abode" to describe the listed address, the post office form is sufficient probative evidence
that the address was in fact Titus's usual place of abode. The Court disagreed. First, the
form indicates only that defendant had not provided a forwarding address to the post
office and therefore, so far as the post office knew, she was receiving mail at that
address. People can receive mail at locations other than their usual place of abode;
therefore, this post office form, without more, does not affirmatively show that the location
stated in the affidavit was, at that time or ever, defendant's usual place of abode.
ISSUE NO. 2- The evidence in support of the affidavit was insufficient.
Even if the affidavit were sufficient to allow the trial court to order substitute service, [the
affidavit] has not affirmatively shown that the particular service ordered in this
case, citation by regular mail, was reasonably calculated to give the defendant
notice of the suit.
While the Texas Supreme Court has held that substituted service by first class mail may
be proper in some circumstances, see State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d
298, 299 (Tex. 1993), it has also made it clear that the circumstances under which it is
proper are limited. Compare Hubicki, 226 S.W.3d at 408 (service via regular mail held
improper) with Costley, 868 S.W.2d at 299 (service via regular mail held proper). The
plaintiff must meet a high evidentiary burden to prove that such service is reasonably
calculated to provide notice of the proceedings in time to answer and defend. In Costley,
State Farm had made ten failed attempts to personally serve the defendant and presented
evidence proving that Costley lived at the service address and was receiving mail sent
there. 868 S.W.2d at 299. This evidence included a copy of Costley's insurance policy,
which contained his mailing address; a copy of a letter sent by State Farm to that same
address, informing Costley of the attorney State Farm had retained for his defense; and a
copy of a letter sent to State Farm from Costley's attorney which contained specific
references to the letter sent to Costley by State Farm. 868 S.W.2d at 299. The supreme
court held that, under those circumstances, the trial court could properly authorize service
via first class mail. In Hubicki, in contrast, the plaintiff had made a single attempt to serve
the defendant before moving for alternative service and presented no evidence that the
defendant was actually receiving mail at the address for service. 226 S.W.3d at 408.
Under those circumstances, the supreme court held that, as a matter of law, the plaintiff
had not established that service via regular mail to that address was reasonably
calculated to provide notice. Id.
The circumstances of this case are more similar to those of Hubicki. Here, too, plaintiff
made a single attempt to serve defendant via certified mail at the service address.
Plaintiff's only evidence that defendants was actually receiving mail sent to the address
for service was the post office form showing that, so far as the post office knew, it was her
correct address. Unlike State Farm, the plaintiff in this case did not provide evidence of
specific instances of defendant giving that address as the residence or receiving and
responding to mail sent to that address. We hold that, under these circumstances,
plaintiff did not establish that service via regular mail to the listed address was reasonably
calculated to provide notice.
ANALYSIS OF THE COURT'S DECISION:
I must first make a point about the responsibility and accountability of the process server
with regard to this issue. While the server prepared the affidavit, it is ultimately the
responsibility of the attorney to make sure the motion, including the affidavit in support,
conforms to the Texas Rules of Civil Procedure. Had the attorney in this case required
the affidavit to conform to the rules, we may not be reading this decision. This
assessment agrees with the Court's opinion which reads, "It is the responsibility of the
party requesting service to ensure both that proper service is accomplished and that the
record reflects proper service."
The server in this case made a simple and what may be a common error. Many (including
myself) have provided an affidavit that, according to the above, would be considered
inadequate support for the motion. An article addressing these issues has been posted
on the CCPSAT website for some time. See "Proper Wording On Affidavits." This
article will help you provide your client with a rock solid affidavit.
But, more concerning is the Court's secondary finding.
The Court finds that mail being delivered to a person at a particular address is not strong
enough evidence to claim that the address is the recipient's "usual place of abode." So
the question remains... had the affidavit stated, based on the postal information alone, the
address is a "place where the defendant can probably be found," would the Court have
upheld the service? One way to be sure this doesn't happen to one of your clients is to
provide at least two pieces of evidence that validates the recipient's address. For
instance, the postal request form in conjunction with the appraisal district's record that
shows the same mailing address would be nearly impenetrable.
Thousands upon thousands of citations in Texas (and other process) have been
successfully served by first class mail pursuant to a sub. service order. We must all work
to preserve this method of service by satisfying the Court's expectations.
Any comments on this topic can be emailed to processwatch1@yahoo.com or posted on
the bulletin boards at ServeNow or TALI.
Story by,
Tod Pendergrass
Director, CCPSAT
Editor, TPW
LINK: www.CCPSAT.org
RETURN TO: Texas Process Watch