TRCP 106 Alternative Service was defective | Default judgment in SAPCR modification proceeding set
aside because order authorizing substitute service of citation was not strictly complied with
Berkefelt v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Bland)
(SAPCR modification, default judgment set aside, defective service, service of citation)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland
01-07-00526-CV Randall Earl Berkefelt v. Diane Lynne Jackson
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Hon. K. Randal Hufstetler
Appellant, Randall Earl Berkefelt, appeals a default judgment rendered against him in a suit to
modify the parent-child relationship. Berkefelt contends that the default judgment should be
reversed because (1) he was not properly served, (2) the order for alternative service was
defective, and (3) he was not notified by the clerk of the court that any default judgment was
ordered. Finding error on the face of the record, we reverse and remand.
On October 20, 2006, Appellee Diana Jackson, Berkefelt’s ex-wife and the mother of his
children, filed a petition to modify the parent-child relationship. On December 14, the trial
court signed an order on a motion, authorizing Jackson to serve Berkefelt at his home by
leaving the citation and petition with someone over the age of sixteen. The process server
filed a return of service on December 15, stating that the petition had been attached to
Berkefelt’s back door. On March 26, 2007, the trial court granted Jackson’s petition to modify
the parent-child relationship and ordered Berkefelt to pay $2702 in attorney’s fees to
Jackson. Berkefelt did not appear at the trial, and thus the judgment was a default judgment.
According to Berkefelt, he did not receive notice of the trial nor did he receive notice that a
default judgment had been rendered against him. He asserts that he became aware of the
judgment only upon visiting the Attorney-General’s office to verify the amount of child support
that he owed.
A default judgment cannot withstand a direct attack by a defendant who shows that he was not
served in strict compliance with the Texas Rules of Civil Procedure. Hubicki v. Festina, 226 S.
W.3d 405, 408 (Tex. 2007); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); McGraw-Hill,
Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied). In
contrast to the usual rule that all presumptions will be made in support of a judgment, there are
no presumptions of valid issuance, service, and return of citation when examining a default
judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.
1985); McGraw-Hill, 823 S.W.2d at 416. Jurisdiction over the defendant must affirmatively
appear by a showing of due service of citation, independent of the recitals in the default
judgment. Faggett v. Hargrove, 921 S.W.2d 274, 276 (Tex. App.—Houston [1st Dist.] 1995,
no writ); Mass. Newton Buying Corp. v. Huber, 788 S.W.2d 100, 102 (Tex. App.—Houston
[14th Dist.] 1990, no writ).
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’ns Sys., Inc., 10 S.W.3d 384,
388 (Tex. App.—Dallas 2000, no pet.); Broussard v. Davila, 352 S.W.2d 753, 754 (Tex. Civ.
App.—San Antonio 1961, no writ). Because the trial court’s order is the sole basis of
authority authorizing substituted service, any deviation from the trial court’s order necessitates
a reversal of the default judgment based on service. Becker v. Russell, 765 S.W.2d 899, 900
(Tex. App.—Austin 1989, no writ).
Here, Jackson served Berkefelt using substitute service under Rule 106. Jackson was
required to follow the trial court’s instructions exactly when serving Berkefelt. Id. The trial
court required that service be effected by “leaving a copy of the citation with pleadings and
orders attached . . . with anyone over sixteen years of age at that address.” The return of
service showed that the process server attached the citation and petition to Berkefelt’s back
door. Because the return of service is prima facie evidence of how service was performed, it
proves that the order was not left with someone over the age of sixteen as instructed by the
trial court. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (holding that
return of service is considered prima facie evidence of facts recited therein); Furst v. Smith,
176 S.W.3d 864, 872 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The trial court’s order amounted to the only legal authorization for Jackson’s actions. When
Jackson failed to strictly follow the order, she violated Rule 106 of the Texas Rules of Civil
Procedure. See Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex. App.—Fort Worth
2003, no pet.) (holding that service was invalid when return of service stated citation and
petition were left on door contrary to trial court’s instructions requiring citation, petition and
court order to be placed on door). Violation of Rule 106 makes the service of process invalid
and of no effect. See Wilson, 800 S.W.2d at 836. Defective service of process removes the
trial court’s jurisdiction over the defendant. See id. (holding that jurisdiction is dependent
upon citation issued and served in a manner provided for by law). Because service was
defective in this case, the trial court lacked jurisdiction to grant the default judgment.
We hold that service was defective and therefore the trial court lacked jurisdiction to grant a
default judgment. We thus reverse the default judgment and remand the case to the trial court
for further proceedings.
Panel consists of Justices Jennings, Hanks, and Bland.